UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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February 12, 2004 (February 11, 2004)
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Date of Report (Date of earliest event reported)
Revlon, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 1-11178 13-3662955
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(State or Other (Commission File No.) (I.R.S. Employer
Jurisdiction of Identification
Incorporation) No.)
237 Park Avenue
New York, New York 10017
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(Address of Principal (Zip Code)
Executive Offices)
(212) 527-4000
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(Registrant's telephone number, including area code)
None
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(Former Name or Former Address, if Changed Since Last Report)
ITEM 5. OTHER EVENTS AND REGULATION FD DISCLOSURE
On February 12, 2004, Revlon, Inc. ("Revlon") announced that its Board of
Directors had approved agreements with Fidelity Management & Research Co. (the
"Institutional Investor") and MacAndrews & Forbes, the Company's principal
shareholder, which will dramatically strengthen the Company's balance sheet and
increase the liquidity and float of the Company's common stock. A copy of the
press release is attached hereto as Exhibit 99.1 and is incorporated herein by
reference.
In connection with these transactions, Revlon has entered into agreements
with each of MacAndrews & Forbes and the Institutional Investor. Copies of these
are attached hereto as Exhibits 10.23 and 10.24, respectively.
On February 11, 2004, Revlon entered into Supplemental Indentures with U.S.
Bank National Association (formerly known as First Trust National Association),
as trustee, with respect to the Indentures for each of the 8 1/8% Senior Notes,
the 9% Senior Notes and the 8 5/8% Senior Subordinated Notes of Revlon Consumer
Products Corporation ("Products Corporation"), a wholly owned subsidiary of
Revlon, providing for a full and unconditional guarantee by Revlon of the
obligations of Products Corporation under each of the Indentures. Copies of the
Supplemental Indentures with respect to each of the 8 1/8% Senior Notes, the 9%
Senior Notes and the 8 5/8% Senior Subordinated Notes are attached hereto as
Exhibits 4.29, 4.30 and 4.31, respectively.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
Exhibit No. Description
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Exhibit 4.29 Second Supplemental Indenture, dated as of February
11, 2004, among Revlon Consumer Products Corporation
("Products Corporation"), U.S. Bank National
Association (formerly known as First Trust National
Association), as trustee ("Trustee"), and Revlon,
Inc. ("Revlon"), as guarantor, amending the
Indenture, dated as of February 1, 1998, as
supplemented by the First Supplemental Indenture,
dated as of April 1, 1998, between Products
Corporation and the Trustee relating to Products
Corporation's 8 1/8% Senior Notes due 2006.
Exhibit 4.30 First Supplemental Indenture, dated as of February
11, 2004, among Products Corporation, the Trustee and
Revlon, as guarantor, amending the Indenture, dated
as of November 6, 1998, between Products Corporation
and the Trustee, relating to Products Corporation's
9% Senior Notes due 2006.
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Exhibit 4.31 Second Supplemental Indenture, dated as of February
11, 2004, among Products Corporation, the Trustee and
Revlon, as guarantor, amending the Indenture, dated
as of February 1, 1998, as supplemented by the First
Supplemental Indenture, dated as of March 4, 1998,
between Products Corporation and the Trustee,
relating to Products Corporation's 8 5/8% Senior
Subordinated Notes due 2008.
Exhibit 10.23 Support Agreement, dated as of February 11, 2004,
between Revlon, Inc. and MacAndrews & Forbes Holdings
Inc.
Exhibit 10.24 Support Agreement, dated as of February 11, 2004,
between Revlon, Inc. and Fidelity Management &
Research Co.
Exhibit 99.1 Press Release dated February 12, 2004.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
REVLON, INC.
By: /s/ Robert K. Kretzman
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Robert K. Kretzman
Executive Vice President, General
Counsel and Chief Legal Officer
Date: February 12, 2004
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EXHIBIT INDEX
Exhibit No. Description
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Exhibit 4.29 Second Supplemental Indenture, dated as of February
11, 2004, among Revlon Consumer Products Corporation
("Products Corporation"), U.S. Bank National
Association (formerly known as First Trust National
Association), as trustee ("Trustee"), and Revlon,
Inc. ("Revlon"), as guarantor, amending the
Indenture, dated as of February 1, 1998, as
supplemented by the First Supplemental Indenture,
dated as of April 1, 1998, between Products
Corporation and the Trustee relating to Products
Corporation's 8 1/8% Senior Notes due 2006.
Exhibit 4.30 First Supplemental Indenture, dated as of February
11, 2004, among Products Corporation, the Trustee and
Revlon, as guarantor, amending the Indenture, dated
as of November 6, 1998, between Products Corporation
and the Trustee, relating to Products Corporation's
9% Senior Notes due 2006.
Exhibit 4.31 Second Supplemental Indenture, dated as of February
11, 2004, among Products Corporation, the Trustee and
Revlon, as guarantor, amending the Indenture, dated
as of February 1, 1998, as supplemented by the First
Supplemental Indenture, dated as of March 4, 1998,
between Products Corporation and the Trustee,
relating to Products Corporation's 8 5/8% Senior
Subordinated Notes due 2008.
Exhibit 10.23 Support Agreement, dated as of February 11, 2004,
between Revlon, Inc. and MacAndrews & Forbes Holdings
Inc.
Exhibit 10.24 Support Agreement, dated as of February 11, 2004,
between Revlon, Inc. and Fidelity Management &
Research Co.
Exhibit 99.1 Press Release dated February 12, 2004.
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EXHIBIT 4.29
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of February 11, 2004 (this
"Second Supplemental Indenture"), among REVLON, INC., a Delaware corporation
(the "Guarantor"), REVLON CONSUMER PRODUCTS CORPORATION, a Delaware corporation
and a direct, wholly-owned subsidiary of the Guarantor (the "Company"), and U.S.
BANK NATIONAL ASSOCIATION (formerly known as First Trust National Association),
a national banking association, as trustee under the indenture referred to
herein (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an Indenture, dated as of February 1, 1998, as supplemented by the
First Supplemental Indenture, dated as of April 1, 1998 (as so supplemented, the
"Indenture"), in respect of the 8 1/8% Senior Notes due 2006 (the "Securities")
pursuant to which an aggregate principal amount of $250,000,000 of the
Securities were issued;
WHEREAS, the Guarantor desires to guarantee, as described below, the
obligations of the Company pursuant to the Indenture;
WHEREAS, pursuant to Section 9.01(4) of the Indenture, the Trustee and
the Company are authorized to amend the Indenture and the Securities without
notice to or consent of any Holders of the Securities when adding a Guarantee
with respect to the Securities;
WHEREAS, this Second Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of the Guarantor and the Company; and
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Company and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
Guarantee
Section 1.1. Indenture Guarantee. Subject to the provisions of this
Article I, the Guarantor, as primary obligor and not merely as surety,
irrevocably and unconditionally guarantees to each Holder and to the Trustee and
its successors and assigns (a) the full and punctual payment of Principal of and
interest, if any, on the Securities when due, whether at Stated Maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under the Indenture and the Securities and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company under the Indenture and the Securities whether expenses, indemnification
or otherwise (all such obligations guaranteed hereby by the
Guarantor being the "Guaranteed Obligations"). The guaranty of the Guarantor
under this Article I is herein referred to as this "Indenture Guarantee".
The Guarantor agrees to pay, in addition to the amount stated above,
any and all reasonable expenses (including reasonable counsel fees and expenses)
incurred by the Trustee or the Holders in enforcing any rights under this
Article I.
Without limiting the generality of the foregoing, this Indenture
Guarantee guarantees, to the extent provided herein, the payment of all amounts
which constitute part of the Guaranteed Obligations and would be owed by the
Company under the Indenture or the Securities but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
Section 1.2. Guaranty Absolute. This Indenture Guarantee is
irrevocable, absolute, present and unconditional. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
the Indenture, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Trustee or the Holders with respect thereto. The Guarantor further agrees that
this Indenture Guarantee constitutes a guarantee of payment, performance and
compliance (and not a guarantee of collection). The obligations of the Guarantor
under this Indenture Guarantee are independent of the Guaranteed Obligations,
and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Indenture Guarantee, irrespective of whether any
action is brought against the Company or whether the Company is joined in any
such action or actions. The liability of the Guarantor under this Indenture
Guarantee shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or the
Securities with respect to the Company or any agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from the Indenture, including
any increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Company or otherwise;
(c) the failure to give notice to the Guarantor of the occurrence
of an Event of Default under the provisions of the Indenture or the Securities;
(d) any taking, exchange, release or nonperfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(e) any failure, omission, delay by or inability on the part of
the Trustee or the Holders to assert or exercise any right, power or remedy
conferred on the Trustee or the Holders in the Indenture or the Securities;
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(f) any change in the corporate structure, or termination,
dissolution, consolidation or merger of the Company or the Guarantor with or
into any other entity, the voluntary or involuntary liquidation, dissolution,
sale or other disposition of all or substantially all the assets of the Company
or the Guarantor, the marshaling of the assets and liabilities of the Company or
any guarantor, the receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition with creditors,
or readjustment of, or other similar proceedings affecting the Company or the
Guarantor, or any of the assets of either of them;
(g) the assignment of any right, title or interest of the Trustee
or any Holder in the Indenture or the Securities to any other Person; or
(h) any other event or circumstance, whether foreseen or
unforeseen and whether similar or dissimilar to any of the foregoing, that might
otherwise constitute a defense available to, or a discharge of, the Company or
the Guarantor, other than payment in full of the Guaranteed Obligations; it
being the intent of the Guarantor that its obligations hereunder shall not be
discharged except by payment of all amounts owing pursuant to the Indenture or
the Securities.
This Indenture Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment or performance with
respect to any of the Guaranteed Obligations is rescinded or must otherwise be
returned by the Trustee, any Holder or any other Person upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, all as though such
payment or performance had not been made or occurred. Except as expressly set
forth in Section 1.3 below, and Section 8.01(b) of the Indenture, the
obligations of the Guarantor under this Indenture Guarantee shall not be subject
to reduction, termination or other impairment by any set-off, recoupment,
counterclaim or defense or for any other reason.
Section 1.3. Limitation on Liability. Any term or provision of the
Indenture to the contrary notwithstanding, the maximum, aggregate amount of the
Guaranteed Obligations Guaranteed by the Guarantor shall not exceed the maximum
amount that can be hereby Guaranteed without rendering this Indenture Guarantee,
as it relates to the Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
Section 1.4. Waivers. The Guarantor hereby irrevocably waives, to the
extent permitted by applicable law:
(a) promptness, diligence, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and this Indenture
Guarantee;
(b) any requirement that the Trustee, any Holder or any other
Person protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against the Company or any other
Person or any collateral, or obtain any relief pursuant to the Indenture or
pursue any other available remedy;
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(c) all rights to trial by jury in any action, proceeding or
counterclaim arising out of or relating to the Indenture or the Securities;
(d) any defense arising by reason of any claim or defense based
upon an election of remedies by the Trustee or any Holder which in any manner
impairs, reduces, releases or otherwise adversely affects its subrogation,
contribution or reimbursement rights or other rights to proceed against the
Company or any other Person or any collateral; and
(e) any duty on the part of the Trustee or any Holder to disclose
to the Guarantor any matter, fact or thing relating to the business, operation
or condition of the Company and its assets now known or hereafter known by the
Trustee or such Holder.
Section 1.5. Waiver of Subrogation and Contribution. Until the
Indenture has been discharged, the Guarantor hereby irrevocably waives any claim
or other right which it may now or hereafter acquire against the Company that
arises from the existence, payment, performance or enforcement of the
Guarantor's obligations under this Indenture Guarantee, including any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Trustee or any Holder against
the Company or any collateral which the Trustee or any Holder now has or
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including the right to take or receive
from the Company, directly or indirectly, in cash or other property or by setoff
or in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to the Guarantor in violation of the
preceding sentence and the Guaranteed Obligations shall not have been paid in
full in accordance with the terms and conditions of the Indenture, such amount
shall be deemed to have been paid to the Guarantor for the benefit of, and held
in trust for the benefit of, the Trustee, and the Holders, and shall forthwith
be paid to the Trustee for the benefit of the Holders to be credited and applied
to the Guaranteed Obligations, whether matured or unmatured, in accordance with
the terms of the Indenture. The Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by the
Indenture and that the waivers set forth in this Section 1.5 are knowingly made
in contemplation of such benefits.
Section 1.6. No Waiver; Cumulative Remedies. No failure on the part of
the Trustee or any Holder to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. The Trustee and the Holders
shall have all the rights and remedies granted in the Indenture and available at
law or in equity, and these same rights and remedies may be pursued separately,
successively or concurrently against the Company or the Guarantor.
Section 1.7. Successors and Assigns. Until this Indenture Guarantee is
released pursuant to Section 8.01(b) of the Indenture, this Article I shall be
binding upon
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the Guarantor and its successors and assigns and shall enure to the benefit of
the successors and assigns of the Trustee and the Holders and, in the event of
any transfer or assignment of rights by any Holder or the Trustee, the rights
and privileges conferred upon that party in the Indenture and in the Securities
shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of the Indenture.
Section 1.8. Severability. Any provision of this Article I which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
ARTICLE II
Subordination of Indenture Guarantee
Section 2.1. Agreement To Subordinate Indenture Guarantee. The
Guarantor and the Company agree, that the obligations of the Guarantor under the
Indenture Guarantee set forth in Article I above are subordinated in all
respects, including in right of payment, to the extent and in the manner
provided in this Article II, to the prior payment of all Senior Debt (as defined
below) and that the subordination is for the benefit of and enforceable by the
holders of Senior Debt. The Indenture Guarantee shall in all respects rank pari
passu with all other Pari Passu Debt (as defined below) of the Guarantor and
senior in right of payment to all Subordinated Debt (as defined below) of the
Guarantor and only indebtedness of the Guarantor which is Senior Debt shall rank
senior to this Indenture Guarantee in accordance with the provisions set forth
herein. All provisions of this Article II shall be subject to Section 2.11
below.
Section 2.2. Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of the Guarantor to creditors upon a total or partial
liquidation or a total or partial dissolution of the Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Guarantor or its property:
(1) holders of Senior Debt shall be entitled to receive payment in full
of the Senior Debt before Holders shall be entitled to receive any payment
or distribution with respect to this Indenture Guarantee; and
(2) until the Senior Debt is paid in full, any payment or distribution
to which Holders would be entitled but for this Article II shall be made to
holders of Senior Debt as their interests may appear, except that so long
as the Holders are not in the same or a higher class of creditors in such
liquidation, dissolution or proceeding as the holders of the Senior Debt,
Holders may receive shares of stock and any debt securities that are
subordinated to Senior Debt to at least the same extent as this Indenture
Guarantee.
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Section 2.3. Default on Senior Debt. The Guarantor may not make any
payment with respect to the Guaranteed Obligations or make any deposit pursuant
to Section 8.01 of the Indenture and may not repurchase, redeem or otherwise
retire any Securities (collectively, "pay the Guaranteed Obligations") if (i)
any Senior Debt is not paid when due or (ii) any other default on Senior Debt
occurs and the maturity of such Senior Debt is accelerated in accordance with
its terms unless, in either case, (x) the default has been cured or waived and
any such acceleration has been rescinded or (y) such Senior Debt has been paid
in full. During the continuance of any default (other than a default described
in clause (i) or (ii) of the preceding sentence) with respect to any Senior Debt
pursuant to which the maturity thereof may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Guarantor
may not pay the Guaranteed Obligations for a period (a "Payment Blockage
Period") commencing upon the receipt by the Company, the Guarantor and the
Trustee of written notice (a "Payment Blockage Notice") of such default from the
Representative (as defined below) of such Senior Debt specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter (or earlier if
such Payment Blockage Period is terminated (i) by written notice to the Trustee,
the Guarantor and the Company from the Representative which gave such Payment
Blockage Notice, (ii) by repayment in full of such Senior Debt or (iii) because
the default specified in such Payment Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section),
unless the holders of such Senior Debt or the Representative of such holders
shall have accelerated the maturity of such Senior Debt, the Guarantor may
resume payments (including any missed payments) with respect to the Guaranteed
Obligations after the termination of such Payment Blockage Period. Not more than
one Payment Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to Senior Debt during such
period; provided, however, that if any Payment Blockage Notice within such
360-day period is given by or on behalf of any holders of any Senior Debt (other
than Bank Debt) (the "Initial Payment Blockage Notice"), the Representative of
the Bank Debt may give another Payment Blockage Notice within such period;
provided further, however, that in no event may the total number of days during
which any Payment Blockage Period or Periods is in effect exceed 179 days in the
aggregate during any 360 consecutive day period.
Section 2.4. When Distribution Must Be Paid Over. If a distribution is
made to Holders that because of this Article II should not have been made to
them, the Holders who receive the distribution shall hold it in trust for
holders of Senior Debt and pay it over to them as their interests may appear.
Section 2.5. Subrogation. After all Senior Debt is paid in full and
until the Securities are paid in full, the Holders shall be subrogated to the
rights of holders of Senior Debt to receive distributions applicable to Senior
Debt. A distribution made under this Article II to holders of Senior Debt which
otherwise would have been made to the Holders is not, as between the Guarantor
and the Holders, a payment by the Guarantor on Senior Debt.
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Section 2.6. Relative Rights. This Article II defines the relative
rights of the Holders and holders of Senior Debt. Nothing in this Second
Supplemental Indenture shall:
(1) impair, as between the Guarantor and Holders, the obligation of the
Guarantor, which is absolute and unconditional, to pay the Guaranteed
Obligations to the extent set forth in Article I above; or
(2) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior Debt to
receive distributions otherwise payable to the Holders.
Section 2.7. Subordination May Not Be Impaired by Guarantor. No right
of any holder of Senior Debt to enforce the subordination of this Indenture
Guarantee shall be impaired by any act or failure to act by the Guarantor or by
its failure to comply with this Second Supplemental Indenture.
Section 2.8. Rights of Trustee and Paying Agent. The Guarantor shall
give prompt written notice to the Trustee of any fact known to the Guarantor
which would prohibit the making of any payment to or by the Trustee in respect
of the Guaranteed Obligations. Notwithstanding Section 2.3 above, the Trustee or
Paying Agent may continue to make payments on the Guaranteed Obligations and
shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless, not less than one Business Day
prior to the date of such payment, a Trust Officer of the Trustee receives
actual notice satisfactory to it that payments may not be made under this
Article II. The Guarantor, the Company, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Debt may give such notice;
provided, however, that, if an issue of Senior Debt has a Representative, only
such Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. The Registrar
and co-registrar and the Paying Agent may do the same with like rights. The
Trustee shall be entitled to all the rights set forth in this Article II with
respect to any Senior Debt which may at any time be held by it, to the same
extent as any other holder of Senior Debt; and nothing in Article VII of the
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article II shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.07 of the Indenture.
Section 2.9. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative (if any).
Section 2.10. Article II Not To Prevent Events of Default or Limit
Right To Accelerate. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article II shall not be construed as preventing
the occurrence of a Default. Nothing in this Article II shall have any effect on
the right of the Holders or the
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Trustee to accelerate the maturity of the Securities or make a demand for
payment under this Indenture Guarantee.
Section 2.11. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article VIII of the Indenture by the
Trustee for the payment of Principal of and interest on the Securities shall not
be subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article II, and none of the Holders shall be
obligated to pay over any such amount to the Company, the Guarantor or any
holder of Senior Debt of the Guarantor or any other creditor of the Guarantor.
Section 2.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article II, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 2.2
above are pending, (ii) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Senior Debt for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article II.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article II, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article II, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 of the
Indenture shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article II.
Section 2.13. Trustee To Effectuate Subordination. Each Holder
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination between
the Holders and the holders of Senior Debt as provided in this Article II and
appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 2.14. Trustee Not Fiduciary for Holders of Senior Debt. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall not be liable to any such holders if it shall mistakenly pay over
or distribute to Holders or the Company or any other Person, money or assets to
which any holders of Senior Debt shall be entitled by virtue of this Article II
or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article II and no implied
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covenants or obligations with respect to holders of Senior Debt shall be read
into this Indenture against the Trustee.
Section 2.15. Reliance by Holders of Senior Debt on Subordination
Provisions. Each Holder agrees that the foregoing subordination provisions are,
and are intended to be, an inducement and a consideration to each holder of any
Senior Debt, whether such Senior Debt was created or acquired before or after
the issuance of the Securities, to acquire and continue to hold, or to continue
to hold, such Senior Debt and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt.
Section 2.16. Definitions.
"Pari Passu Debt" as used herein means (i) the Guarantor's Guaranteed
Obligations (as defined in the Indenture, dated as of November 26, 2001, among
the Company, the guarantors party thereto, and Wilmington Trust Company, as
trustee, in respect of the 12% Senior Secured Notes due 2005 and the 12% Senior
Secured Exchange Notes due 2005, as amended, supplemented and otherwise modified
from time to time (the "12% Senior Secured Notes Indenture")) under the 12%
Senior Secured Notes Indenture, (ii) the Guarantor's Guaranteed Obligations (as
defined in the First Supplemental Indenture, dated as of February 11, 2004 in
respect of the 9% Senior Notes due 2006 (the "9% Senior Notes First Supplemental
Indenture"), among the Guarantor, the Company, and the Trustee, as trustee, to
the Indenture, dated November 6, 1998, between the Company and the Trustee, as
further amended, supplemented and otherwise modified from time to time) under
the 9% Senior Notes First Supplemental Indenture, and (iii) and any other Debt
of the Guarantor that is not Senior Debt or Subordinated Debt.
"Representative" as used herein means the trustee, agent or
representative (if any) for an issue of Senior Debt.
"Senior Debt" as used herein means the (i) the Guarantor's obligations
under the Second Amended and Restated Credit Agreement, dated as of November 30,
2001, as amended, supplemented and otherwise modified from time to time (the
"Credit Agreement") and the Security Documents and the Credit Documents (each as
defined in the Credit Agreement) related thereto and (iii) any future
indebtedness of the Guarantor that is designated by the Guarantor as Senior
Debt.
"Subordinated Debt" as used herein means (i) the Guarantor's Guaranteed
Obligations (as defined in the Second Supplemental Indenture, dated as of
February 11, 2004 in respect of the 8 5/8% Senior Subordinated Notes due 2008
(the "8 5/8% Senior Subordinated Notes Second Supplemental Indenture"), among
the Guarantor, the Company and the Trustee, as trustee, to the Indenture, dated
February 1, 1998, among the Company, Revlon Escrow Corp. ("Escrow Corp.") and
the Trustee, as supplemented by the First Supplemental Indenture, dated as of
March 4, 1998, among the Company, Escrow Corp. and the Trustee, as further
amended, supplemented and otherwise modified
9
from time to time) under the 8 5/8% Senior Notes Second Supplemental Indenture
and (ii) any indebtedness, Guarantee or obligation of the Guarantor that
specifically provides that such indebtedness, Guarantee or obligation is to rank
junior in right of payment with the Guaranteed Obligations.
ARTICLE III
Miscellaneous
Section 3.1. Effect of Supplemental Indenture. Upon the execution and
delivery of this Second Supplemental Indenture by the Company, the Guarantor and
the Trustee, the Indenture shall be supplemented in accordance herewith, and
this Second Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Securities heretofore or hereafter authenticated
and delivered under the Indenture shall be bound thereby.
Section 3.2. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 3.3. Indenture and Supplemental Indenture Construed Together.
This Second Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Second Supplemental
Indenture shall henceforth be read and construed together.
Section 3.4. Confirmation and Preservation of Indenture. The Indenture
as supplemented by this Second Supplemental Indenture shall in all respects
remain in full force and effect.
Section 3.5. Conflict with Trust Indenture Act. If any provision of
this Second Supplemental Indenture limits, qualifies or conflicts with any
provision of the TIA that is required under the TIA to be part of and govern any
provision of this Second Supplemental Indenture, the provision of the TIA shall
control. If any provision of this Second Supplemental Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the
provision of the TIA shall be deemed to apply to the Indenture as so modified or
to be excluded by this Second Supplemental Indenture, as the case may be.
Section 3.6. Severability. If any court of competent jurisdiction shall
determine that any provision in this Second Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.7. Terms Defined in the Indenture. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 3.8. Headings. The Article and Section headings of this Second
Supplemental Indenture have been inserted for convenience of reference only, are
not to
10
be considered a part of this Second Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 3.9. Benefits of Second Supplemental Indenture. Nothing in this
Second Supplemental Indenture or the Securities, express or implied, shall give
to any Person, other than the parties hereto and thereto and their successors
hereunder and thereunder and the Holders of the Securities and (with respect to
Article II hereof) the holders of Senior Debt, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Second Supplemental
Indenture or the Securities.
Section 3.10. Successors. All agreements of the Company in this Second
Supplemental Indenture shall bind its successors. All agreements of the
Guarantor in this Second Supplemental Indenture shall bind its successors. All
agreements of the Trustee in this Second Supplemental Indenture shall bind its
successors.
Section 3.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company and the
Guarantor and the Trustee assumes no responsibility for their correctness.
Section 3.12. Certain Duties and Responsibilities of the Trustee. In
entering into this Second Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture and the Securities relating
to the conduct or affecting the liability or affording protection to the
Trustee, whether or not elsewhere herein so provided.
Section 3.13. Governing Law. This Second Supplemental Indenture 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 3.14. Counterpart Originals. The parties may sign any number of
copies of this Second Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
11
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date first above written.
REVLON, INC.
By: /s/ Robert K. Kretzman
-------------------------------------
Name: Robert K. Kretzman
Title: Executive Vice President
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Robert K. Kretzman
-------------------------------------
Name: Robert K. Kretzman
Title: Executive Vice President
U.S. BANK NATIONAL ASSOCIATION as Trustee
By: /s/ Julie Eddington
-------------------------------------
Name: Julie Eddington
Title: Assistant Vice President
12
EXHIBIT 4.30
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of February 11, 2004 (this
"First Supplemental Indenture"), among REVLON, INC., a Delaware corporation (the
"Guarantor"), REVLON CONSUMER PRODUCTS CORPORATION, a Delaware corporation and a
direct, wholly-owned subsidiary of the Guarantor (the "Company"), and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as trustee under the
indenture referred to herein (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an Indenture, dated as of November 6, 1998, in respect of the 9%
Senior Notes due 2006 (the "Securities") pursuant to which an aggregate
principal amount of $250,000,000 of the Securities were issued;
WHEREAS, the Guarantor desires to guarantee, as described below, the
obligations of the Company pursuant to the Indenture;
WHEREAS, pursuant to Section 9.01(4) of the Indenture, the Trustee and
the Company are authorized to amend the Indenture and the Securities without
notice to or consent of any Holders of the Securities when adding a Guarantee
with respect to the Securities;
WHEREAS, this First Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of the Guarantor and the Company; and
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Company and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
Guarantee
Section 1.1. Indenture Guarantee. Subject to the provisions of this
Article I, the Guarantor, as primary obligor and not merely as surety,
irrevocably and unconditionally guarantees to each Holder and to the Trustee and
its successors and assigns (a) the full and punctual payment of Principal of and
interest, if any, on the Securities when due, whether at Stated Maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under the Indenture and the Securities and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company under the Indenture and the Securities whether expenses, indemnification
or otherwise (all such obligations guaranteed hereby by the Guarantor being the
"Guaranteed Obligations"). The guaranty of the Guarantor under this Article I is
herein referred to as this "Indenture Guarantee".
The Guarantor agrees to pay, in addition to the amount stated above,
any and all reasonable expenses (including reasonable counsel fees and expenses)
incurred by the Trustee or the Holders in enforcing any rights under this
Article I.
Without limiting the generality of the foregoing, this Indenture
Guarantee guarantees, to the extent provided herein, the payment of all amounts
which constitute part of the Guaranteed Obligations and would be owed by the
Company under the Indenture or the Securities but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
Section 1.2. Guaranty Absolute. This Indenture Guarantee is
irrevocable, absolute, present and unconditional. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
the Indenture, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Trustee or the Holders with respect thereto. The Guarantor further agrees that
this Indenture Guarantee constitutes a guarantee of payment, performance and
compliance (and not a guarantee of collection). The obligations of the Guarantor
under this Indenture Guarantee are independent of the Guaranteed Obligations,
and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Indenture Guarantee, irrespective of whether any
action is brought against the Company or whether the Company is joined in any
such action or actions. The liability of the Guarantor under this Indenture
Guarantee shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or the
Securities with respect to the Company or any agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from the Indenture, including
any increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Company or otherwise;
(c) the failure to give notice to the Guarantor of the occurrence
of an Event of Default under the provisions of the Indenture or the Securities;
(d) any taking, exchange, release or nonperfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(e) any failure, omission, delay by or inability on the part of
the Trustee or the Holders to assert or exercise any right, power or remedy
conferred on the Trustee or the Holders in the Indenture or the Securities;
(f) any change in the corporate structure, or termination,
dissolution, consolidation or merger of the Company or the Guarantor with or
into any other entity, the voluntary or involuntary liquidation, dissolution,
sale or other disposition
2
of all or substantially all the assets of the Company or the Guarantor, the
marshaling of the assets and liabilities of the Company or any guarantor, the
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors, or readjustment of, or
other similar proceedings affecting the Company or the Guarantor, or any of the
assets of either of them;
(g) the assignment of any right, title or interest of the Trustee
or any Holder in the Indenture or the Securities to any other Person; or
(h) any other event or circumstance, whether foreseen or
unforeseen and whether similar or dissimilar to any of the foregoing, that might
otherwise constitute a defense available to, or a discharge of, the Company or
the Guarantor, other than payment in full of the Guaranteed Obligations; it
being the intent of the Guarantor that its obligations hereunder shall not be
discharged except by payment of all amounts owing pursuant to the Indenture or
the Securities.
This Indenture Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment or performance with
respect to any of the Guaranteed Obligations is rescinded or must otherwise be
returned by the Trustee, any Holder or any other Person upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, all as though such
payment or performance had not been made or occurred. Except as expressly set
forth in Section 1.3 below, and Section 8.01(b) of the Indenture, the
obligations of the Guarantor under this Indenture Guarantee shall not be subject
to reduction, termination or other impairment by any set-off, recoupment,
counterclaim or defense or for any other reason.
Section 1.3. Limitation on Liability. Any term or provision of the
Indenture to the contrary notwithstanding, the maximum, aggregate amount of the
Guaranteed Obligations Guaranteed by the Guarantor shall not exceed the maximum
amount that can be hereby Guaranteed without rendering this Indenture Guarantee,
as it relates to the Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
Section 1.4. Waivers. The Guarantor hereby irrevocably waives, to the
extent permitted by applicable law:
(a) promptness, diligence, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and this Indenture
Guarantee;
(b) any requirement that the Trustee, any Holder or any other
Person protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against the Company or any other
Person or any collateral, or obtain any relief pursuant to the Indenture or
pursue any other available remedy;
(c) all rights to trial by jury in any action, proceeding or
counterclaim arising out of or relating to the Indenture or the Securities;
3
(d) any defense arising by reason of any claim or defense based
upon an election of remedies by the Trustee or any Holder which in any manner
impairs, reduces, releases or otherwise adversely affects its subrogation,
contribution or reimbursement rights or other rights to proceed against the
Company or any other Person or any collateral; and
(e) any duty on the part of the Trustee or any Holder to disclose
to the Guarantor any matter, fact or thing relating to the business, operation
or condition of the Company and its assets now known or hereafter known by the
Trustee or such Holder.
Section 1.5. Waiver of Subrogation and Contribution. Until the
Indenture has been discharged, the Guarantor hereby irrevocably waives any claim
or other right which it may now or hereafter acquire against the Company that
arises from the existence, payment, performance or enforcement of the
Guarantor's obligations under this Indenture Guarantee, including any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Trustee or any Holder against
the Company or any collateral which the Trustee or any Holder now has or
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including the right to take or receive
from the Company, directly or indirectly, in cash or other property or by setoff
or in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to the Guarantor in violation of the
preceding sentence and the Guaranteed Obligations shall not have been paid in
full in accordance with the terms and conditions of the Indenture, such amount
shall be deemed to have been paid to the Guarantor for the benefit of, and held
in trust for the benefit of, the Trustee, and the Holders, and shall forthwith
be paid to the Trustee for the benefit of the Holders to be credited and applied
to the Guaranteed Obligations, whether matured or unmatured, in accordance with
the terms of the Indenture. The Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by the
Indenture and that the waivers set forth in this Section 1.5 are knowingly made
in contemplation of such benefits.
Section 1.6. No Waiver; Cumulative Remedies. No failure on the part of
the Trustee or any Holder to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. The Trustee and the Holders
shall have all the rights and remedies granted in the Indenture and available at
law or in equity, and these same rights and remedies may be pursued separately,
successively or concurrently against the Company or the Guarantor.
Section 1.7. Successors and Assigns. Until this Indenture Guarantee is
released pursuant to Section 8.01(b) of the Indenture, this Article I shall be
binding upon the Guarantor and its successors and assigns and shall enure to the
benefit of the successors and assigns of the Trustee and the Holders and, in the
event of any transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges conferred
4
upon that party in the Indenture and in the Securities shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions of the Indenture.
Section 1.8. Severability. Any provision of this Article I which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
ARTICLE II
Subordination of Indenture Guarantee
Section 2.1. Agreement To Subordinate Indenture Guarantee. The
Guarantor and the Company agree, that the obligations of the Guarantor under the
Indenture Guarantee set forth in Article I above are subordinated in all
respects, including in right of payment, to the extent and in the manner
provided in this Article II, to the prior payment of all Senior Debt (as defined
below) and that the subordination is for the benefit of and enforceable by the
holders of Senior Debt. This Indenture Guarantee shall in all respects rank pari
passu with all other Pari Passu Debt (as defined below) of the Guarantor and
senior in right of payment to all Subordinated Debt (as defined below) of the
Guarantor and only indebtedness of the Guarantor which is Senior Debt shall rank
senior to this Indenture Guarantee in accordance with the provisions set forth
herein. All provisions of this Article II shall be subject to Section 2.11
below.
Section 2.2. Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of the Guarantor to creditors upon a total or partial
liquidation or a total or partial dissolution of the Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Guarantor or its property:
(1) holders of Senior Debt shall be entitled to receive payment in full
of the Senior Debt before Holders shall be entitled to receive any payment
or distribution with respect to this Indenture Guarantee; and
(2) until the Senior Debt is paid in full, any payment or distribution
to which Holders would be entitled but for this Article II shall be made to
holders of Senior Debt as their interests may appear, except that so long
as the Holders are not in the same or a higher class of creditors in such
liquidation, dissolution or proceeding as the holders of the Senior Debt,
Holders may receive shares of stock and any debt securities that are
subordinated to Senior Debt to at least the same extent as this Indenture
Guarantee.
Section 2.3. Default on Senior Debt. The Guarantor may not make any
payment with respect to the Guaranteed Obligations or make any deposit pursuant
to Section 8.01 of the Indenture and may not repurchase, redeem or otherwise
retire any
5
Securities (collectively, "pay the Guaranteed Obligations") if (i) any Senior
Debt is not paid when due or (ii) any other default on Senior Debt occurs and
the maturity of such Senior Debt is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Senior Debt has been paid in full.
During the continuance of any default (other than a default described in clause
(i) or (ii) of the preceding sentence) with respect to any Senior Debt pursuant
to which the maturity thereof may be accelerated immediately without further
notice (except such notice as may be required to effect such acceleration) or
the expiration of any applicable grace periods, the Guarantor may not pay the
Guaranteed Obligations for a period (a "Payment Blockage Period") commencing
upon the receipt by the Company, the Guarantor and the Trustee of written notice
(a "Payment Blockage Notice") of such default from the Representative (as
defined below) of such Senior Debt specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (i) by written notice to the Trustee, the
Guarantor and the Company from the Representative which gave such Payment
Blockage Notice, (ii) by repayment in full of such Senior Debt or (iii) because
the default specified in such Payment Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section),
unless the holders of such Senior Debt or the Representative of such holders
shall have accelerated the maturity of such Senior Debt, the Guarantor may
resume payments (including any missed payments) with respect to the Guaranteed
Obligations after the termination of such Payment Blockage Period. Not more than
one Payment Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to Senior Debt during such
period; provided, however, that if any Payment Blockage Notice within such
360-day period is given by or on behalf of any holders of any Senior Debt (other
than Bank Debt) (the "Initial Payment Blockage Notice"), the Representative of
the Bank Debt may give another Payment Blockage Notice within such period;
provided further, however, that in no event may the total number of days during
which any Payment Blockage Period or Periods is in effect exceed 179 days in the
aggregate during any 360 consecutive day period.
Section 2.4. When Distribution Must Be Paid Over. If a distribution is
made to Holders that because of this Article II should not have been made to
them, the Holders who receive the distribution shall hold it in trust for
holders of Senior Debt and pay it over to them as their interests may appear.
Section 2.5. Subrogation. After all Senior Debt is paid in full and
until the Securities are paid in full, the Holders shall be subrogated to the
rights of holders of Senior Debt to receive distributions applicable to Senior
Debt. A distribution made under this Article II to holders of Senior Debt which
otherwise would have been made to the Holders is not, as between the Guarantor
and the Holders, a payment by the Guarantor on Senior Debt.
Section 2.6. Relative Rights. This Article II defines the relative
rights of the Holders and holders of Senior Debt. Nothing in this First
Supplemental Indenture shall:
6
(1) impair, as between the Guarantor and Holders, the obligation of the
Guarantor, which is absolute and unconditional, to pay the Guaranteed
Obligations to the extent set forth in Article I above; or
(2) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior Debt to
receive distributions otherwise payable to the Holders.
Section 2.7. Subordination May Not Be Impaired by Guarantor. No right
of any holder of Senior Debt to enforce the subordination of this Indenture
Guarantee shall be impaired by any act or failure to act by the Guarantor or by
its failure to comply with this First Supplemental Indenture.
Section 2.8. Rights of Trustee and Paying Agent. The Guarantor shall
give prompt written notice to the Trustee of any fact known to the Guarantor
which would prohibit the making of any payment to or by the Trustee in respect
of the Guaranteed Obligations. Notwithstanding Section 2.3 above, the Trustee or
Paying Agent may continue to make payments on the Guaranteed Obligations and
shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless, not less than one Business Day
prior to the date of such payment, a Trust Officer of the Trustee receives
actual notice satisfactory to it that payments may not be made under this
Article II. The Guarantor, the Company, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Debt may give such notice;
provided, however, that, if an issue of Senior Debt has a Representative, only
such Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. The Registrar
and co-registrar and the Paying Agent may do the same with like rights. The
Trustee shall be entitled to all the rights set forth in this Article II with
respect to any Senior Debt which may at any time be held by it, to the same
extent as any other holder of Senior Debt; and nothing in Article VII of the
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article II shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.07 of the Indenture.
Section 2.9. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative (if any).
Section 2.10. Article II Not To Prevent Events of Default or Limit
Right To Accelerate. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article II shall not be construed as preventing
the occurrence of a Default. Nothing in this Article II shall have any effect on
the right of the Holders or the Trustee to accelerate the maturity of the
Securities or make a demand for payment under this Indenture Guarantee.
7
Section 2.11. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article VIII of the Indenture by the
Trustee for the payment of Principal of and interest on the Securities shall not
be subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article II, and none of the Holders shall be
obligated to pay over any such amount to the Company, the Guarantor or any
holder of Senior Debt of the Guarantor or any other creditor of the Guarantor.
Section 2.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article II, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 2.2
above are pending, (ii) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Senior Debt for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article II.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article II, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article II, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 of the
Indenture shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article II.
Section 2.13. Trustee To Effectuate Subordination. Each Holder
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination between
the Holders and the holders of Senior Debt as provided in this Article II and
appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 2.14. Trustee Not Fiduciary for Holders of Senior Debt. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall not be liable to any such holders if it shall mistakenly pay over
or distribute to Holders or the Company or any other Person, money or assets to
which any holders of Senior Debt shall be entitled by virtue of this Article II
or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article II and no implied covenants or
obligations with respect to holders of Senior Debt shall be read into this
Indenture against the Trustee.
8
Section 2.15. Reliance by Holders of Senior Debt on Subordination
Provisions. Each Holder agrees that the foregoing subordination provisions are,
and are intended to be, an inducement and a consideration to each holder of any
Senior Debt, whether such Senior Debt was created or acquired before or after
the issuance of the Securities, to acquire and continue to hold, or to continue
to hold, such Senior Debt and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt.
Section 2.16. Definitions.
"Pari Passu" as used herein means (i) the Guarantor's Guaranteed
Obligations (as defined in the Indenture, dated as of November 26, 2001, among
the Company, the other guarantors party thereto and Wilmington Trust Company, as
trustee, in respect of the 12% Senior Secured Notes due 2005 and the 12% Senior
Secured Exchange Notes due 2005, as amended, supplemented and otherwise modified
from time to time (the "12% Senior Secured Notes Indenture")) under the 12%
Senior Secured Notes Indenture, (ii) the Guarantor's Guaranteed Obligations (as
defined in the Second Supplemental Indenture, dated as of February 11, 2004 in
respect of the 8 1/8% Senior Notes due 2006 (the "8 1/8% Senior Notes Second
Supplemental Indenture"), among the Guarantor, the Company and the Trustee, as
trustee, to the Indenture, dated February 1, 1998, among the Company, Revlon
Escrow Corp. ("Escrow Corp.") and the Trustee, as further amended, supplemented
and otherwise modified from time to time) under the 8 1/8% Senior Notes Second
Supplemental Indenture, and (iii) and any other Debt of the Guarantor that is
not Senior Debt or Subordinated Debt.
"Representative" as used herein means the trustee, agent or
representative (if any) for an issue of Senior Debt.
"Senior Debt" as used herein means the (i) the Guarantor's obligations
under the Second Amended and Restated Credit Agreement, dated as of November 30,
2001, as amended, supplemented and otherwise modified from time to time (the
"Credit Agreement") and the Security Documents and the Credit Documents (each as
defined in the Credit Agreement) related thereto, and (ii) any future
indebtedness of the Guarantor that is designated by the Guarantor as Senior
Debt.
"Subordinated Debt" as used herein means (i) the Guarantor's Guaranteed
Obligations (as defined in the Second Supplemental Indenture, dated as of
February 11, 2004 in respect of the 8 5/8% Senior Subordinated Notes due 2008
(the "8 5/8% Senior Subordinated Notes Second Supplemental Indenture"), among
the Guarantor, the Company and the Trustee, as trustee, to the Indenture, dated
February 1, 1998, among the Company, Escrow Corp. and the Trustee, as
supplemented by the First Supplemental Indenture, dated as of March 4, 1998,
among the Company, Escrow Corp. and the Trustee, as further amended,
supplemented or otherwise modified from time to time) under the 8 5/8% Senior
Subordinated Notes Second Supplemental Indenture, and (ii) any indebtedness,
Guarantee or obligation of the Guarantor that specifically provides that
9
such indebtedness, Guarantee or obligation is to rank junior in right of payment
with the Guaranteed Obligations.
ARTICLE III
Miscellaneous
Section 3.1. Effect of Supplemental Indenture. Upon the execution and
delivery of this First Supplemental Indenture by the Company, the Guarantor and
the Trustee, the Indenture shall be supplemented in accordance herewith, and
this First Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Securities heretofore or hereafter authenticated
and delivered under the Indenture shall be bound thereby.
Section 3.2. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 3.3. Indenture and Supplemental Indenture Construed Together.
This First Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this First Supplemental
Indenture shall henceforth be read and construed together.
Section 3.4. Confirmation and Preservation of Indenture. The Indenture
as supplemented by this First Supplemental Indenture shall remain in full force
and effect.
Section 3.5. Conflict with Trust Indenture Act. If any provision of
this First Supplemental Indenture limits, qualifies or conflicts with any
provision of the TIA that is required under the TIA to be part of and govern any
provision of this First Supplemental Indenture, the provision of the TIA shall
control. If any provision of this First Supplemental Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the
provision of the TIA shall be deemed to apply to the Indenture as so modified or
to be excluded by this First Supplemental Indenture, as the case may be.
Section 3.6. Severability. If any court of competent jurisdiction shall
determine that any provision in this First Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.7. Terms Defined in the Indenture. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 3.8. Headings. The Article and Section headings of this First
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this First Supplemental Indenture and shall in no
way modify or restrict any of the terms or provisions hereof.
10
Section 3.9. Benefits of First Supplemental Indenture. Nothing in this
First Supplemental Indenture or the Securities, express or implied, shall give
to any Person, other than the parties hereto and thereto and their successors
hereunder and thereunder and the Holders of the Securities and (with respect to
Article II hereof) the holders of Senior Debt, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this First Supplemental
Indenture or the Securities.
Section 3.10. Successors. All agreements of the Company in this First
Supplemental Indenture shall bind its successors. All agreements of the
Guarantor in this First Supplemental Indenture shall bind its successors. All
agreements of the Trustee in this First Supplemental Indenture shall bind its
successors.
Section 3.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company and the
Guarantor and the Trustee assumes no responsibility for their correctness.
Section 3.12. Certain Duties and Responsibilities of the Trustee. In
entering into this First Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture and the Securities relating
to the conduct or affecting the liability or affording protection to the
Trustee, whether or not elsewhere herein so provided.
Section 3.13. Governing Law. This First Supplemental Indenture 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 3.14. Counterpart Originals. The parties may sign any number of
copies of this First Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
11
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
REVLON, INC.
By: /s/ Robert K. Kretzman
-------------------------------------
Name: Robert K. Kretzman
Title: Executive Vice President
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Robert K. Kretzman
-------------------------------------
Name: Robert K. Kretzman
Title: Executive Vice President
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Julie Eddington
-------------------------------------
Name: Julie Eddington
Title: Assistant Vice President
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EXHIBIT 4.31
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of February 11, 2004 (this
"Second Supplemental Indenture"), among REVLON, INC., a Delaware corporation
(the "Guarantor"), REVLON CONSUMER PRODUCTS CORPORATION, a Delaware corporation
and a direct, wholly-owned subsidiary of the Guarantor (the "Company"), and U.S.
BANK NATIONAL ASSOCIATION (formerly known as First Trust National Association),
a national banking association, as trustee under the indenture referred to
herein (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an Indenture, dated as of February 1, 1998, as supplemented by the
First Supplemental Indenture, dated as of March 4, 1998 (as so supplemented, the
"Indenture"), in respect of the 8 5/8% Senior Subordinated Notes due 2008 (the
"Securities") pursuant to which an aggregate principal amount of $650,000,000 of
the Securities were issued;
WHEREAS, the Guarantor desires to guarantee, as described below, the
obligations of the Company pursuant to the Indenture;
WHEREAS, pursuant to Section 9.01(5) of the Indenture, the Trustee and
the Company are authorized to amend the Indenture and the Securities without
notice to or consent of any Holders of the Securities when adding a Guarantee
with respect to the Securities;
WHEREAS, this Second Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of the Guarantor and the Company; and
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Company and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
Guarantee
Section 1.1. Indenture Guarantee. Subject to the provisions of this
Article I, the Guarantor, as primary obligor and not merely as surety,
irrevocably and unconditionally guarantees to each Holder and to the Trustee and
its successors and assigns (a) the full and punctual payment of Principal of and
interest, if any, on the Securities when due, whether at Stated Maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under the Indenture and the Securities and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company under the Indenture and the Securities whether
expenses, indemnification or otherwise (all such obligations guaranteed hereby
by the Guarantor being the "Guaranteed Obligations"). The guaranty of the
Guarantor under this Article I is herein referred to as this "Indenture
Guarantee".
The Guarantor agrees to pay, in addition to the amount stated above,
any and all reasonable expenses (including reasonable counsel fees and expenses)
incurred by the Trustee or the Holders in enforcing any rights under this
Article I.
Without limiting the generality of the foregoing, this Indenture
Guarantee guarantees, to the extent provided herein, the payment of all amounts
which constitute part of the Guaranteed Obligations and would be owed by the
Company under the Indenture or the Securities but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
Section 1.2. Guaranty Absolute. This Indenture Guarantee is
irrevocable, absolute, present and unconditional. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
the Indenture, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Trustee or the Holders with respect thereto. The Guarantor further agrees that
this Indenture Guarantee constitutes a guarantee of payment, performance and
compliance (and not a guarantee of collection). The obligations of the Guarantor
under this Indenture Guarantee are independent of the Guaranteed Obligations,
and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Indenture Guarantee, irrespective of whether any
action is brought against the Company or whether the Company is joined in any
such action or actions. The liability of the Guarantor under this Indenture
Guarantee shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or the
Securities with respect to the Company or any agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from the Indenture, including
any increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Company or otherwise;
(c) the failure to give notice to the Guarantor of the occurrence
of an Event of Default under the provisions of the Indenture or the Securities;
(d) any taking, exchange, release or nonperfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(e) any failure, omission, delay by or inability on the part of
the Trustee or the Holders to assert or exercise any right, power or remedy
conferred on the Trustee or the Holders in the Indenture or the Securities;
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(f) any change in the corporate structure, or termination,
dissolution, consolidation or merger of the Company or the Guarantor with or
into any other entity, the voluntary or involuntary liquidation, dissolution,
sale or other disposition of all or substantially all the assets of the Company
or the Guarantor, the marshaling of the assets and liabilities of the Company or
any guarantor, the receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition with creditors,
or readjustment of, or other similar proceedings affecting the Company or the
Guarantor, or any of the assets of either of them;
(g) the assignment of any right, title or interest of the Trustee
or any Holder in the Indenture or the Securities to any other Person; or
(h) any other event or circumstance, whether foreseen or
unforeseen and whether similar or dissimilar to any of the foregoing, that might
otherwise constitute a defense available to, or a discharge of, the Company or
the Guarantor, other than payment in full of the Guaranteed Obligations; it
being the intent of the Guarantor that its obligations hereunder shall not be
discharged except by payment of all amounts owing pursuant to the Indenture or
the Securities.
This Indenture Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment or performance with
respect to any of the Guaranteed Obligations is rescinded or must otherwise be
returned by the Trustee, any Holder or any other Person upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, all as though such
payment or performance had not been made or occurred. Except as expressly set
forth in Section 1.3 below, and Section 8.01(b) of the Indenture, the
obligations of the Guarantor under this Indenture Guarantee shall not be subject
to reduction, termination or other impairment by any set-off, recoupment,
counterclaim or defense or for any other reason.
Section 1.3. Limitation on Liability. Any term or provision of the
Indenture to the contrary notwithstanding, the maximum, aggregate amount of the
Guaranteed Obligations Guaranteed by the Guarantor shall not exceed the maximum
amount that can be hereby Guaranteed without rendering this Indenture Guarantee,
as it relates to the Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
Section 1.4. Waivers. The Guarantor hereby irrevocably waives, to the
extent permitted by applicable law:
(a) promptness, diligence, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and this Indenture
Guarantee;
(b) any requirement that the Trustee, any Holder or any other
Person protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against the Company or any other
Person or any collateral, or obtain any relief pursuant to the Indenture or
pursue any other available remedy;
3
(c) all rights to trial by jury in any action, proceeding or
counterclaim arising out of or relating to the Indenture or the Securities;
(d) any defense arising by reason of any claim or defense based
upon an election of remedies by the Trustee or any Holder which in any manner
impairs, reduces, releases or otherwise adversely affects its subrogation,
contribution or reimbursement rights or other rights to proceed against the
Company or any other Person or any collateral; and
(e) any duty on the part of the Trustee or any Holder to disclose
to the Guarantor any matter, fact or thing relating to the business, operation
or condition of the Company and its assets now known or hereafter known by the
Trustee or such Holder.
Section 1.5. Waiver of Subrogation and Contribution. Until the
Indenture has been discharged, the Guarantor hereby irrevocably waives any claim
or other right which it may now or hereafter acquire against the Company that
arises from the existence, payment, performance or enforcement of the
Guarantor's obligations under this Indenture Guarantee, including any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Trustee or any Holder against
the Company or any collateral which the Trustee or any Holder now has or
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including the right to take or receive
from the Company, directly or indirectly, in cash or other property or by setoff
or in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to the Guarantor in violation of the
preceding sentence and the Guaranteed Obligations shall not have been paid in
full in accordnace with the terms and conditions of the Indenture, such amount
shall be deemed to have been paid to the Guarantor for the benefit of, and held
in trust for the benefit of, the Trustee, and the Holders, and shall forthwith
be paid to the Trustee for the benefit of the Holders to be credited and applied
to the Guaranteed Obligations, whether matured or unmatured, in accordance with
the terms of the Indenture. The Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by the
Indenture and that the waivers set forth in this Section 1.5 are knowingly made
in contemplation of such benefits.
Section 1.6. No Waiver; Cumulative Remedies. No failure on the part of
the Trustee or any Holder to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. The Trustee and the Holders
shall have all the rights and remedies granted in the Indenture and available at
law or in equity, and these same rights and remedies may be pursued separately,
successively or concurrently against the Company or the Guarantor.
Section 1.7. Successors and Assigns. Until this Indenture Guarantee is
released pursuant to Section 8.01(b) of the Indenture, this Article I shall be
binding upon
4
the Guarantor and its successors and assigns and shall enure to the benefit of
the successors and assigns of the Trustee and the Holders and, in the event of
any transfer or assignment of rights by any Holder or the Trustee, the rights
and privileges conferred upon that party in the Indenture and in the Securities
shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of the Indenture.
Section 1.8. Severability. Any provision of this Article I which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
ARTICLE II
Subordination of Indenture Guarantee
Section 2.1. Agreement To Subordinate Indenture Guarantee. The
Guarantor and the Company agree, that the obligations of the Guarantor under the
Indenture Guarantee set forth in Article I above are subordinated in all
respects, including in right of payment, to the extent and in the manner
provided in this Article II, to the prior payment of all Senior Debt (as defined
below) and that the subordination is for the benefit of and enforceable by the
holders of Senior Debt. The Indenture Guarantee shall in all respects rank pari
passu with all other Subordinated Debt (as defined below) of the Guarantor and
only indebtedness of the Guarantor which is Senior Debt shall rank senior to
this Indenture Guarantee in accordance with the provisions set forth herein. All
provisions of this Article II shall be subject to Section 2.11 below.
Section 2.2. Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of the Guarantor to creditors upon a total or partial
liquidation or a total or partial dissolution of the Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Guarantor or its property:
(1) holders of Senior Debt shall be entitled to receive payment in full
of the Senior Debt before Holders shall be entitled to receive any payment
or distribution with respect to this Indenture Guarantee; and
(2) until the Senior Debt is paid in full, any payment or distribution
to which Holders would be entitled but for this Article II shall be made to
holders of Senior Debt as their interests may appear, except that so long
as the Holders are not in the same or a higher class of creditors in such
liquidation, dissolution or proceeding as the holders of the Senior Debt,
Holders may receive shares of stock and any debt securities that are
subordinated to Senior Debt to at least the same extent as this Indenture
Guarantee.
5
Section 2.3. Default on Senior Debt. The Guarantor may not make any
payment with respect to the Guaranteed Obligations or make any deposit pursuant
to Section 8.01 of the Indenture and may not repurchase, redeem or otherwise
retire any Securities (collectively, "pay the Guaranteed Obligations") if (i)
any Senior Debt is not paid when due or (ii) any other default on Senior Debt
occurs and the maturity of such Senior Debt is accelerated in accordance with
its terms unless, in either case, (x) the default has been cured or waived and
any such acceleration has been rescinded or (y) such Senior Debt has been paid
in full. During the continuance of any default (other than a default described
in clause (i) or (ii) of the preceding sentence) with respect to any Senior Debt
pursuant to which the maturity thereof may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Guarantor
may not pay the Guaranteed Obligations for a period (a "Payment Blockage
Period") commencing upon the receipt by the Company, the Guarantor and the
Trustee of written notice (a "Payment Blockage Notice") of such default from the
Representative (as defined below) of such Senior Debt specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter (or earlier if
such Payment Blockage Period is terminated (i) by written notice to the Trustee,
the Guarantor and the Company from the Representative which gave such Payment
Blockage Notice, (ii) by repayment in full of such Senior Debt or (iii) because
the default specified in such Payment Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section),
unless the holders of such Senior Debt or the Representative of such holders
shall have accelerated the maturity of such Senior Debt, the Guarantor may
resume payments (including any missed payments) with respect to the Guaranteed
Obligations after the termination of such Payment Blockage Period. Not more than
one Payment Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to Senior Debt during such
period; provided, however, that if any Payment Blockage Notice within such
360-day period is given by or on behalf of any holders of any Senior Debt (other
than Bank Debt) (the "Initial Payment Blockage Notice"), the Representative of
the Bank Debt may give another Payment Blockage Notice within such period;
provided further, however, that in no event may the total number of days during
which any Payment Blockage Period or Periods is in effect exceed 179 days in the
aggregate during any 360 consecutive day period.
Section 2.4. When Distribution Must Be Paid Over. If a distribution is
made to Holders that because of this Article II should not have been made to
them, the Holders who receive the distribution shall hold it in trust for
holders of Senior Debt and pay it over to them as their interests may appear.
Section 2.5. Subrogation. After all Senior Debt is paid in full and
until the Securities are paid in full, the Holders shall be subrogated to the
rights of holders of Senior Debt to receive distributions applicable to Senior
Debt. A distribution made under this Article II to holders of Senior Debt which
otherwise would have been made to the Holders is not, as between the Guarantor
and the Holders, a payment by the Guarantor on Senior Debt.
6
Section 2.6. Relative Rights. This Article II defines the relative
rights of the Holders and holders of Senior Debt. Nothing in this Second
Supplemental Indenture shall:
(1) impair, as between the Guarantor and Holders, the obligation of the
Guarantor, which is absolute and unconditional, to pay the Guaranteed
Obligations to the extent set forth in Article I above; or
(2) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior Debt to
receive distributions otherwise payable to the Holders.
Section 2.7. Subordination May Not Be Impaired by Guarantor. No right
of any holder of Senior Debt to enforce the subordination of this Indenture
Guarantee shall be impaired by any act or failure to act by the Guarantor or by
its failure to comply with this Second Supplemental Indenture.
Section 2.8. Rights of Trustee and Paying Agent. The Guarantor shall
give prompt written notice to the Trustee of any fact known to the Guarantor
which would prohibit the making of any payment to or by the Trustee in respect
of the Guaranteed Obligations. Notwithstanding Section 2.3 above, the Trustee or
Paying Agent may continue to make payments on the Guaranteed Obligations and
shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless, not less than one Business Day
prior to the date of such payment, a Trust Officer of the Trustee receives
actual notice satisfactory to it that payments may not be made under this
Article II. The Guarantor, the Company, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Debt may give such notice;
provided, however, that, if an issue of Senior Debt has a Representative, only
such Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. The Registrar
and co-registrar and the Paying Agent may do the same with like rights. The
Trustee shall be entitled to all the rights set forth in this Article II with
respect to any Senior Debt which may at any time be held by it, to the same
extent as any other holder of Senior Debt; and nothing in Article VII of the
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article II shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.07 of the Indenture.
Section 2.9. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative (if any).
Section 2.10. Article II Not To Prevent Events of Default or Limit
Right To Accelerate. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article II shall not be construed as preventing
the occurrence of a Default. Nothing in this Article II shall have any effect on
the right of the Holders or the
7
Trustee to accelerate the maturity of the Securities or make a demand for
payment under this Indenture Guarantee.
Section 2.11. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article VIII of the Indenture by the
Trustee for the payment of Principal of and interest on the Securities shall not
be subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article II, and none of the Holders shall be
obligated to pay over any such amount to the Company, the Guarantor or any
holder of Senior Debt of the Guarantor or any other creditor of the Guarantor.
Section 2.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article II, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 2.2
above are pending, (ii) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Senior Debt for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article II.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article II, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article II, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 of the
Indenture shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article II.
Section 2.13. Trustee To Effectuate Subordination. Each Holder
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination between
the Holders and the holders of Senior Debt as provided in this Article II and
appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 2.14. Trustee Not Fiduciary for Holders of Senior Debt. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall not be liable to any such holders if it shall mistakenly pay over
or distribute to Holders or the Company or any other Person, money or assets to
which any holders of Senior Debt shall be entitled by virtue of this Article II
or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article II and no implied
8
covenants or obligations with respect to holders of Senior Debt shall be read
into this Indenture against the Trustee.
Section 2.15. Reliance by Holders of Senior Debt on Subordination
Provisions. Each Holder agrees that the foregoing subordination provisions are,
and are intended to be, an inducement and a consideration to each holder of any
Senior Debt, whether such Senior Debt was created or acquired before or after
the issuance of the Securities, to acquire and continue to hold, or to continue
to hold, such Senior Debt and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt.
Section 2.16. Definitions.
"Representative" as used herein means the trustee, agent or
representative (if any) for an issue of Senior Debt.
"Senior Debt" as used herein means (i) the Guarantor's obligations
under the Second Amended and Restated Credit Agreement, dated as of November 30,
2001, as amended, supplemented and otherwise modified from time to time (the
"Credit Agreement") and the Security Documents and the Credit Documents (each as
defined in the Credit Agreement) related thereto, (ii) the Guarantor's
Guaranteed Obligations (as defined in the Indenture, dated as of November 26,
2001, among the Company, Wilmington Trust Company, as trustee, and the
guarantors party thereto, in respect of the 12% Senior Secured Notes due 2005
and the 12% Senior Secured Exchange Notes due 2005, as amended, supplemented and
otherwise modified from time to time (the "12% Senior Secured Notes Indenture"))
under the 12% Senior Secured Notes Indenture, (iii) the Guarantor's Guaranteed
Obligations (as defined in the Second Supplemental Indenture, dated as of
February 11, 2004 in respect of the 8 1/8% Senior Notes due 2006 (the "8 1/8%
Senior Notes Second Supplemental Indenture"), among the Guarantor, the Company
and the Trustee, as trustee, to the Indenture, dated February 1, 1998, among the
Company, Revlon Escrow Corp. ("Escrow Corp.") and the Trustee, as further
amended, supplemented and otherwise modified from time to time) under the 8 1/8%
Senior Notes Second Supplemental Indenture, (iv) the Guarantor's Guaranteed
Obligations (as defined in the First Supplemental Indenture, dated as of
Febraury 11, 2004 in respect of the 9% Senior Notes due 2006 (the "9% Senior
Notes First Supplemental Indenture"), among the Guarantor, the Company and the
Trustee, as trustee, to the Indenture, dated November 6, 1998, between the
Company and the Trustee, as further amended, supplemented and otherwise modified
from time to time) under the 9% Senior Notes First Supplemental Indenture, and
(v) any future indebtedness of the Guarantor that is designated by the Guarantor
as Senior Debt.
"Subordinated Debt" as used herein means any indebtedness, Guarantee or
obligation of the Guarantor that specifically provides that such indebtedness,
Guarantee or obligation is to rank pari passu in right of payment with the
Guaranteed Obligations.
9
ARTICLE III
Miscellaneous
Section 3.1. Effect of Supplemental Indenture. Upon the execution and
delivery of this Second Supplemental Indenture by the Company, the Guarantor and
the Trustee, the Indenture shall be supplemented in accordance herewith, and
this Second Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Securities heretofore or hereafter authenticated
and delivered under the Indenture shall be bound thereby.
Section 3.2. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 3.3. Indenture and Supplemental Indenture Construed Together.
This Second Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Second Supplemental
Indenture shall henceforth be read and construed together.
Section 3.4. Confirmation and Preservation of Indenture. The Indenture
as supplemented by this Second Supplemental Indenture shall in all respects
remain in full force and effect.
Section 3.5. Conflict with Trust Indenture Act. If any provision of
this Second Supplemental Indenture limits, qualifies or conflicts with any
provision of the TIA that is required under the TIA to be part of and govern any
provision of this Second Supplemental Indenture, the provision of the TIA shall
control. If any provision of this Second Supplemental Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the
provision of the TIA shall be deemed to apply to the Indenture as so modified or
to be excluded by this Second Supplemental Indenture, as the case may be.
Section 3.6. Severability. If any court of competent jurisdiction shall
determine that any provision in this Second Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.7. Terms Defined in the Indenture. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 3.8. Headings. The Article and Section headings of this Second
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Second Supplemental Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
Section 3.9. Benefits of Second Supplemental Indenture. Nothing in this
Second Supplemental Indenture or the Securities, express or implied, shall give
to any Person, other than the parties hereto and thereto and their successors
hereunder and
10
thereunder and the Holders of the Securities, and (with respect to Article II
hereof) the holders of Senior Debt any benefit of any legal or equitable right,
remedy or claim under the Indenture, this Second Supplemental Indenture or the
Securities.
Section 3.10. Successors. All agreements of the Company in this Second
Supplemental Indenture shall bind its successors. All agreements of the
Guarantor in this Second Supplemental Indenture shall bind its successors. All
agreements of the Trustee in this Second Supplemental Indenture shall bind its
successors.
Section 3.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company and the
Guarantor and the Trustee assumes no responsibility for their correctness.
Section 3.12. Certain Duties and Responsibilities of the Trustee. In
entering into this Second Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture and the Securities relating
to the conduct or affecting the liability or affording protection to the
Trustee, whether or not elsewhere herein so provided.
Section 3.13. Governing Law. This Second Supplemental Indenture 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 3.14. Counterpart Originals. The parties may sign any number of
copies of this Second Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
11
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date first above written.
REVLON, INC.
By: /s/ Robert K. Kretzman
-------------------------------------
Name: Robert K. Kretzman
Title: Executive Vice President
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Robert K. Kretzman
-------------------------------------
Name: Robert K. Kretzman
Title: Executive Vice President
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Julie Eddington
-------------------------------------
Name: Julie Eddington
Title: Assistant Vice President
12
EXHIBIT 10.23
February 11, 2004
Mafco Holdings Inc.
35 East 62nd Street
New York, New York 10021
Attention: Barry F. Schwartz
Executive Vice President and
General Counsel
Facsimile: (212) 572-5170
email: bschwartz@mafgrp.com
Ladies and Gentlemen:
This exchange support agreement ("Support Agreement") is to confirm
that if, on or prior to 5:00 p.m. New York City time, on March 1, 2004, Revlon,
Inc. ("Revlon") commences an exchange offer (the "Exchange Offer") for certain
series of notes of Revlon Consumer Products Corporation ("RCPC" and, together
with Revlon, the "Company") for or into a combination of equity and cash and
other related transactions to exchange or convert, as applicable, certain
indebtedness of RCPC and preferred stock of Revlon (collectively, with the
Exchange Offer, the "Refinancing Transactions") in accordance with the terms set
forth on Exhibit A hereto (the "Term Sheet"), the undersigned holder (the
"Noteholder") holding (i) 9% Senior Notes due 2006 of RCPC and guaranteed by
Revlon (the "9% Senior Notes"), (ii) 8 1/8% Senior Notes due 2006 of RCPC and
guaranteed by Revlon (the "8 1/8% Senior Notes"), and/or (iii) 8 5/8% Senior
Subordinated Notes due 2008 of RCPC and guaranteed by Revlon (the "8 5/8% Senior
Subordinated Notes" and, collectively with the 9% Senior Notes and the 8 1/8%
Senior Notes, the "Notes"), will, as soon as practical but no later than the
fifteenth business day following the commencement of the Exchange Offer (the
"Tender Date"), tender, and will cause its affiliates other than Revlon or any
of its subsidiaries (the "Affiliates") to tender, into the Exchange Offer, in
exchange for shares of Revlon Class A common stock (as defined in the Term
Sheet), the aggregate principal amount and series of Notes set forth under the
Noteholder's name and any and all Notes acquired by the Noteholder subsequent to
the date of this Support Agreement, each in accordance with the applicable
procedures set forth in the definitive offering circular relating to the
Exchange Offer. In exchange for any interest accrued and unpaid on the tendered
Notes at the applicable rate and in accordance with the applicable procedures
set forth in the definitive offering circular relating to the Exchange Offer,
the Noteholder (and its Affiliates) shall elect to receive Revlon Class A common
stock in lieu of cash. Any and all Notes acquired by the Noteholder (and its
Affiliates) after the Tender Date (or otherwise held by the Noteholder and its
Affiliates at any time prior to the expiration date of the Exchange Offer) shall
be tendered into the Exchange Offer on or before the expiration of the Exchange
Offer in accordance with the applicable procedures set forth in the definitive
offering circular relating to the Exchange Offer.
In addition, the Noteholder, being entitled to amounts owing to it
under (i) the $100 Million Senior Unsecured Multiple-Draw Term Loan Agreement
dated February 5, 2003, between RCPC and MacAndrews & Forbes Holdings Inc.
("MacAndrews Holdings"), as amended, (ii) the $65 Million Senior Unsecured
Supplemental Line of Credit Agreement dated February 5, 2003, between RCPC and
MacAndrews Holdings, as amended, (iii) the 2004 $125 Million Senior Unsecured
Multiple-Draw Term Loan Agreement dated January 28, 2004, between RCPC and
MacAndrews Holdings, and (iv) an aggregate of $24.1 million outstanding under
certain non-interest bearing subordinated promissory notes payable by RCPC
(items (i) through (iv) are referred to herein collectively as, the "Other
Company Indebtedness"), will, upon the closing of the Exchange Offer, exchange
and cause its Affiliates to exchange, any and all amounts outstanding, including
accrued and unpaid interest thereon at the applicable rate, under the Other
Company Indebtedness as of the closing of the Exchange Offer (which amounts, as
of the date hereof, are set forth under the Noteholder's name) at the exchange
ratios set forth in the Term Sheet.
In addition, the Noteholder, holding (i) 546 outstanding shares of
Series A preferred stock of Revlon, par value $0.01 per share, having an
aggregate liquidation preference of $54.6 million and (ii) 4,333 outstanding
shares of Series B convertible preferred stock of Revlon, par value $0.01 per
share, (items (i) and (ii) are referred to herein collectively as the "Preferred
Stock"), will, upon the closing of the Exchange Offer, exchange or convert, as
applicable, and cause its Affiliates to exchange or convert, as applicable, the
Preferred Stock at the exchange ratios set forth in the Term Sheet.
The closing of the Refinancing Transactions and the M&F Equity
Contribution (as defined in the Term Sheet) shall take place on the same day and
the issuance of the shares of Revlon Class A common stock to the Noteholder (and
its Affiliates) shall occur in the following order: first, in the Exchange
Offer; second, upon exchange of the Other Company Indebtedness; and last, upon
exchange or conversion, as applicable, of the Preferred Stock.
Prior to the Termination Date (as defined below), at every meeting of
the stockholders of Revlon called with respect to the Refinancing Transactions,
and at every postponement or adjournment thereof, and on every action or
approval by written consent of Revlon's stockholders with respect to the
Refinancing Transactions, the Noteholder agrees to vote such holder's shares of
Revlon's voting securities in favor of, or consent to, and, to the extent
applicable, cause its Affiliates to vote in favor of, or consent to, the
Refinancing Transactions and the transactions contemplated by the Term Sheet and
any matter that could reasonably be expected to facilitate the Refinancing
Transactions and the transactions contemplated by the Term Sheet. Prior to the
Termination Date, the Noteholder will not, and will cause its Affiliates not to,
enter into any agreement or understanding with any person or entity to vote or
give instructions in any manner inconsistent with this Support Agreement.
Prior to the Termination Date and subject to the terms and conditions
of this Support Agreement, the Noteholder agrees not to, and will cause its
Affiliates not to,
2
take, or cause to be taken, directly or indirectly, any action inconsistent with
the consummation of, or opposing, the Refinancing Transactions or the
transactions contemplated by the Term Sheet. Prior to the Termination Date, the
Noteholder agrees to, and will cause its Affiliates to, take, or cause to be
taken, all actions reasonably necessary to facilitate, encourage or otherwise
support the Refinancing Transactions and the transactions contemplated by the
Term Sheet.
Prior to the Termination Date, the Noteholder will not, and will cause
its Affiliates not to, withdraw or revoke any tender, consent or vote
contemplated by this Support Agreement unless the Exchange Offer is terminated
before its expiration or modified without such Noteholder's prior written
consent or this Support Agreement is terminated in accordance with its terms.
The Noteholder further agrees that it will not, and will cause its
Affiliates not to, exercise its Public Rights (as defined in the Term Sheet).
The Noteholder's obligation to tender, consent and vote, as applicable,
as contemplated by this Support Agreement, is subject to the following
conditions (each a "Condition" and collectively, the "Conditions"): (a) the
preparation and, as appropriate, the dissemination or execution of definitive
documentation, in form and substance reasonably satisfactory to the Noteholder,
necessary to implement the Refinancing Transactions and the transactions
contemplated by the Term Sheet in accordance with the terms of such Term Sheet,
including, without limitation (i) offering materials, (ii) certificates and
agreements, if any, relating to the securities to be issued in the Refinancing
Transactions (the foregoing documents and agreements in (i) and (ii) above, as
amended or supplemented, the "Documents"), (iii) amendments to RCPC's senior
secured credit facility if required to consummate the transactions contemplated
by this Support Agreement and (iv) the execution by Revlon of an Investment
Agreement by and between the Noteholder and the Company (the "Investment
Agreement"), and the execution by Revlon and Fidelity of a Shareholders
Agreement by and among Fidelity, the Noteholder and the Company (the
"Shareholders Agreement"); (b) the Documents not containing any misstatement of
a material fact or omitting to state a material fact necessary to make
statements therein, in the light of the circumstances under which they are made,
not misleading (a "Material Misstatement"); (c) the Company receiving all
material third party consents and approvals contemplated by the Term Sheet or
otherwise required to consummate the transactions contemplated hereby and in the
Term Sheet; and (d) no material breach by the Company of the Covenants set forth
below.
Each of the parties covenants and agrees as follows (each a "Covenant"
and collectively, the "Covenants"): (a) except as contemplated by this Support
Agreement, the definitive offering circular for the Exchange Offer, the Term
Sheet and the Fidelity Support Agreement (as defined below), between the date
hereof and the Termination Date, the Company shall (i) conduct business in the
ordinary course in accordance with past practice, and (ii) not issue or agree to
issue any securities of the Company (other than to employees pursuant to the
Revlon, Inc. Fourth Amended and Restated 1996 Stock Plan or any other equity
based compensation plan), make any distributions to equity
3
holders or incur any material indebtedness other than under existing facilities
or the Additional Credit Facility (as defined in the Term Sheet), without the
consent of the Noteholder; (b) the Company will conduct the Rights Offering and
the Additional Offerings (each as defined in the Term Sheet) in accordance with
the terms set forth in the Term Sheet and applicable law; (c) the Company and
the Noteholder shall negotiate in good faith, and enter into the Investment
Agreement and the Shareholders Agreement each containing such terms as are set
forth in the Term Sheet; and (d) the Noteholder shall make the investments in
the Revlon Class A common stock in accordance with the Term Sheet.
Revlon's acceptance of any Notes tendered by the Noteholder (or an
Affiliate) shall be subject to satisfaction of each of the Conditions (or waiver
by the Noteholder of each of the Conditions), provided, however, that Revlon
will not make any material modification of the terms of the Exchange Offer,
without the Noteholder's consent. This Support Agreement shall terminate upon
the first to occur (the "Termination Date") of (a) the termination, expiration
or consummation of the Exchange Offer; (b) any court of competent jurisdiction
or other competent governmental or regulatory authority issuing an order making
illegal or otherwise restricting, preventing or prohibiting the Exchange Offer
in a way that cannot be reasonably remedied by the Company; (c) material breach
by the Company of any of the Covenants; (d) the lenders under RCPC's senior
secured credit facility having accelerated any amounts owed thereunder; (e) June
30, 2004, if the Exchange Offer has not been consummated by such date; (f) the
Documents not being consistent in all material respects with the terms and
provisions of the Term Sheet or containing any provision materially inconsistent
with the Term Sheet; or (g) a Material Misstatement.
Prior to the Termination Date, the Noteholder agrees that, without
Revlon's prior written consent, it will not, and will cause its Affiliates not
to, directly or indirectly, sell, assign, grant an option with respect to,
transfer or otherwise dispose of any of the Notes, Other Company Indebtedness or
Preferred Stock set forth under the Noteholder's (or Affiliate's) name, in whole
or in part, unless the transferee agrees in writing to be bound by the terms of
this Support Agreement with respect to the Notes purchased by such transferee as
though it was an original signatory hereto, which writing the Noteholder (or
Affiliate) shall provide to the Company and is found by the Company to be
reasonably acceptable.
Unless required by applicable law or regulation, prior to the initial
press release (which press release shall be in form and substance reasonably
satisfactory to the Noteholder except in all cases as required by applicable
law) describing the Refinancing Transactions, this Support Agreement and the
Fidelity Support Agreement (as defined below), the Company shall not disclose
the Noteholder's (or any Affiliate's) identity or its individual holdings of
Notes, Other Company Indebtedness or Preferred Stock without the prior written
consent of the Noteholder; and if such announcement or disclosure is so required
by law or regulation, the Company shall use its commercially reasonable best
efforts to afford the Noteholder a reasonable opportunity to review, comment
upon, object to or seek a consent order preventing any such announcement or
disclosure prior to
4
the Company's making such announcement or disclosure. The foregoing shall not
prohibit the Company from disclosing the approximate aggregate principal amount
of Notes, Other Company Indebtedness and Preferred Stock held by the Noteholder
(and its Affiliates).
Each of the parties represents to each other party that, as of the date
of this Support Agreement, such party is, and at all times thereafter until the
Termination Date such party will be duly organized, validly existing, and in
good standing under the laws of the state of its organization, and has all
requisite corporate, partnership, or limited liability company power and
authority to enter into this Support Agreement and to carry out the transactions
contemplated by, and perform its respective obligations under, this Support
Agreement.
Without limiting the rights of each party hereto to pursue all other
legal and equitable rights available to such party for any other party's failure
to perform each of its obligations under this Support Agreement, it is
understood and agreed by each of the parties that any breach of or threatened
breach of this Support Agreement would give rise to irreparable harm for which
money damages would not be an adequate remedy and, accordingly, the parties
agree that, in addition to any other remedies, each non-breaching party shall be
entitled to specific performance and injunctive or other equitable relief for
any such breach or threatened breach. To the extent any of the parties may be
entitled to the benefit of any provision of law requiring any party in any suit,
action or proceeding arising out of or in connection with this Support Agreement
or any of the transactions contemplated hereby to post security for litigation
costs or otherwise post a performance bond or guaranty or to take any similar
action, each party hereby irrevocably waives such benefit, in each case to the
fullest extent now or hereafter permitted under the laws of any such other
jurisdiction.
This Support Agreement is intended to bind and inure to the benefit of
the parties and their respective successors, assigns, heirs, executors,
administrators and representatives.
This Support Agreement, as may be supplemented by the Investment
Agreement and the Shareholders Agreement, upon execution thereof, including the
exhibit(s) hereto and thereto, constitutes the entire agreement of the parties
with respect to the subject matter of this Support Agreement, and supersedes all
other prior negotiations, agreements, and understandings, whether written or
oral, among the parties with respect to the subject matter of this Support
Agreement; provided, however, that any confidentiality agreement executed by any
party hereto shall survive this agreement and shall continue in full force and
effect irrespective of the terms hereof, including, without limitation, the
Confidentiality Agreement dated December 23, 2003, between MacAndrews Holdings,
Bondholder Advisor and Revlon.
The Noteholder acknowledges, that on the date hereof, Revlon has
entered into an exchange support agreement with Fidelity Management & Research
Co. ("Fidelity") with respect to certain debt securities held by Fidelity or its
affiliates or consolidated funds,
5
the form of which agreement is attached as Exhibit B hereto (the "Fidelity
Support Agreement"). Revlon agrees that it will not agree to any amendment or
waiver to the terms of the Fidelity Support Agreement without the prior written
consent of the Noteholder.
This Support Agreement may be executed in one or more counterparts
(which may be by facsimile), each of which shall be deemed an original and all
of which shall constitute one and the same agreement.
All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or mailed (first class postage prepaid) or emailed
to the parties at the following addresses, facsimile numbers or email addresses:
If to the Noteholder:
As specified on the signature page hereto, with one copy
(which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
51 W. 52nd Street
New York, N.Y. 10019
Attention: Trevor S. Norwitz
Facsimile: (212) 403-2333
Email: tsnorwitz@wlrk.com
If to Revlon, to:
Revlon, Inc.
237 Park Avenue
New York, NY 10017
Attention: Steven Schiffman, Senior Vice President
and Treasurer
Facsimile: 212-527-5530
Email: steven.schiffman@revlon.com
With one copy to:
Revlon, Inc.
237 Park Avenue
New York, NY
Attention: Robert K. Kretzman
Executive Vice President and Chief Legal Officer
Facsimile: 212-527-5693
Email: robert.kretzman@revlon.com
With one copy (which shall not constitute notice) to:
6
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: J. Gregory Milmoe
Facsimile: 212-735-2000
Email: jmilmoe@skadden.com
This Support Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York (without regard to its laws
relating to conflicts of laws). The parties agree that all actions or
proceedings arising in connection with this Support Agreement shall be tried and
litigated only in the federal or state courts located in the County of New York,
State of New York. The parties hereto hereby irrevocably submit to the exclusive
jurisdiction of the federal and state courts located in the County of New York,
State of New York for the purpose of any such action or proceeding. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Nothing expressed or referred to in this Support Agreement will be
construed to give any person, other than the parties to this Support Agreement
or Fidelity, any legal or equitable right, remedy, or claim under or with
respect to this Support Agreement or any provision of this Support Agreement.
This Support Agreement and all of its provisions and conditions are for the sole
and exclusive benefit of the parties to this Support Agreement, provided,
however, Fidelity is an intended third party beneficiary of this Support
Agreement and Fidelity's prior written consent shall be required for any
amendment or waiver of this Support Agreement.
Any provision of this Support Agreement may be amended or waived, if,
and only if, such amendment or waiver is in writing and signed by each of the
parties hereto. No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
7
If any provision of this Support Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Support Agreement will remain in full force and effect. Any provision of
this Support Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
Very truly yours,
REVLON, INC.
By: /s/ Robert K. Kretzman
----------------------
Name: Robert K. Kretzman
Title: Executive Vice President
8
ACKNOWLEDGED AND AGREED:
Mafco Holdings Inc.
/s/ Howard Gittis
-------------------------------------
Howard Gittis
Vice Chairman
$1,000,000
----------
Principal Amount of 9% Senior Notes due 2006 as of
the date hereof
$0
--
Principal Amount of 8 5/8% Senior Notes due 2006
as of the date hereof
$284,770,000
------------
Principal Amount of 8 5/8% Senior Subordinated
Notes due 2008 as of the date hereof
$108,086,000
------------
Outstanding Amount Under the $100 Million Senior
Unsecured Multiple-Draw Term Loan Agreement
dated February 5, 2003 as of the date hereof
$26,082,000
-----------
Outstanding Amount Under the $65 Million Senior
Unsecured Supplemental Line of Credit Agreement
dated February 5, 2003 as of the date hereof
$12,426,000
-----------
Outstanding Amount under the 2004 $125 Million
Senior Unsecured Multiple-Draw Term Loan
Agreement dated January 28, 2004 as of the date
hereof
$24,086,000
-----------
Outstanding Amount of Subordinated Demand
Notes and Capital Contribution Notes as of the date
hereof
9
Address for Notices to Noteholder:
Mafco Holdings Inc.
35 East 62nd Street
New York, New York 10021
Attention: Barry F. Schwartz
Executive Vice President and
General Counsel
Facsimile: (212) 572-5170
email: bschwartz@mafgrp.com
10
Exhibit A
---------
TERMS OF
EXCHANGE OFFER FOR ANY AND ALL
- ------------------------------------------ ------------------------------------------------------------------
I. EXCHANGE OFFER Revlon, Inc. ("Revlon") agrees, in reliance on the exemption
-------------- from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act"), provided by Section
3(a)(9) thereof, to conduct an exchange offer (the "Exchange
Offer"), pursuant to which Revlon will offer holders of certain
series of notes issued by its wholly owned subsidiary, Revlon
Consumer Products Corporation ("Products Corporation"), and
guaranteed by Revlon, the option to receive (i) shares of Class
A common stock of Revlon, par value $0.01 per share ("Revlon
Class A common stock"), or (ii) cash, subject to proration as
described below, in exchange for their notes and guaranties.
As described below, Fidelity and M&F (as such terms
are defined below) agree to exchange notes and
guaranties thereof and, in the case of M&F, certain
other debt obligations of Products Corporation and
preferred stock of Revlon for shares of Revlon Class
A common stock.
- ------------------------------------------ ------------------------------------------------------------------
EXCHANGE OFFER
CONSIDERATION
For each $1,000 principal amount of notes tendered in
the Exchange Offer, holders of Products Corporation's
8 1/8% Senior Notes due 2006 (the "8 1/8% Senior Notes")
and 9% Senior Notes due 2006 (the "9% Senior Notes")
(together, the "Senior Notes") may elect to receive:
o 400 shares of Revlon Class A common stock; or
o $830, in the case of the 8 1/8% Senior Notes, in cash; or
o $800, in the case of the 9% Senior Notes, in cash;
o plus, in each case, accrued and unpaid interest,
which will be paid in Revlon Class A common stock or
cash at the option of the holder
(without regard to whether such holder has
elected to receive Revlon Class A common
stock or cash in exchange for its Notes).
For each $1,000 principal amount of notes
tendered in the Exchange Offer, holders of
Products Corporation's 8 5/8% Senior
Subordinated Notes due 2008 (the
"Subordinated Notes" and, together with the
Senior Notes, the "Notes") may elect to
receive:
o 300 shares of Revlon Class A common stock; or
o $620 in cash;
o plus, in each case, accrued and unpaid
interest, which will be paid in Revlon Class
A common stock or cash at the option of the
holder (without regard to whether such
holder has elected to receive Revlon Class A
common stock or cash in exchange for its
Notes).
Notwithstanding the foregoing, Fidelity, with respect to the
Initial Fidelity Notes (as such term is defined below), and M&F
agree to receive Revlon Class A common stock in exchange for the
principal amount of Notes tendered and M&F agrees to receive
Revlon Class A common stock with respect to accrued and unpaid
interest, in each case as described below in the section
entitled "Support Agreements."
- ------------------------------------------ ------------------------------------------------------------------
PRORATION The maximum aggregate principal amount of Notes that may be
tendered for cash (the "Cash Exchange Amount") in the Exchange
Offer will be limited to $150 million, which amount will be
reduced by the aggregate principal amount of Additional Tendered
Notes (as such term is defined below) tendered and exchanged for
Revlon Class A common stock. In the event that holders of Notes
with an aggregate principal amount in excess of the Cash
Exchange Amount elect to receive cash, the cash consideration
will be apportioned pro rata first, among the tendering holders
of Subordinated Notes that elected to receive cash consideration
and then, to the extent that any portion of the Cash Exchange
Amount has not been allocated, pro rata among the tendering
holders of Senior Notes
2
that elected to receive cash consideration.
Holders that have elected to receive cash
consideration may further elect, in the event that
they are subject to proration, to have the portion of
their tendered Notes for which they will not receive
cash returned to them. If they do not make such
election, holders will receive Revlon Class A common
stock for the portion of their tendered Notes for
which they will not receive cash.
- ------------------------------------------ ------------------------------------------------------------------
WITHDRAWAL RIGHTS None.
- ------------------------------------------ ------------------------------------------------------------------
SUPPORT AGREEMENTS Fidelity Management & Research Co. and its affiliates and
consolidated funds, (collectively, "Fidelity") hold $155.06
million aggregate principal amount of Notes (the "Initial
Fidelity Notes"). Fidelity will enter into a Support Agreement
with Revlon, whereby it will agree to exchange the Initial
Fidelity Notes in the Exchange Offer, for shares of Revlon Class
A common stock. Fidelity may elect to receive either cash or
Revlon Class A common stock in exchange for accrued and unpaid
interest (at the applicable rate) on such tendered Notes.
Mafco Holdings Inc. and its affiliates other than
Revlon or any of its subsidiaries (collectively,
"M&F") hold $285.77 million aggregate principal
amount of Notes (the "Initial M&F Notes" and,
together with the Initial Fidelity Notes, the
"Initial Notes"). M&F will enter into a Support
Agreement with Revlon, whereby it will agree to
exchange in the Exchange Offer the Initial M&F Notes,
together with any additional Notes acquired by it
from the date of the Support Agreement through the
closing of the Exchange Offer, in exchange for shares
of Revlon Class A common stock, including with
respect to accrued and unpaid interest (at the
applicable rate) on such tendered Notes.
In addition, pursuant to the Support Agreement, M&F
will agree to exchange (x) any and all amounts
outstanding (including accrued and unpaid interest
thereon at the applicable rate), as of the date of
the closing of the Exchange Offer, under each of (i)
the $100 Million Senior Unsecured Multiple-Draw Term
Loan Agreement, dated as of February 5, 2003, between
Products Corporation and M&F, as amended,
3
(ii) the $65 Million Senior Unsecured Supplemental
Line of Credit Agreement, dated as of February 5,
2003, between Products Corporation and M&F, as
amended (the "M&F $65 Million Line of Credit"), and
(iii) the $125 Million 2004 Senior Unsecured
Multiple-Draw Term Loan Agreement, dated as of
January 28, 2004, between Products Corporation and
M&F (the "M&F $125 Million Loan"), each at an
exchange ratio of 400 shares of Revlon Class A common
stock for each $1,000 of indebtedness outstanding
thereunder, and (y) an aggregate of $24.1 million
outstanding under certain non-interest bearing
subordinated promissory notes payable by Products
Corporation, at an exchange ratio of 300 shares of
Revlon Class A common stock for each $1,000 of
indebtedness outstanding thereunder. This exchange
will be consummated simultaneously with the Exchange
Offer.
In addition, pursuant to the Support Agreement, M&F
will agree to (i) exchange all 546 outstanding shares
of Series A preferred stock of Revlon, par value
$0.01 per share, having an aggregate liquidation
preference of $54.6 million, for shares of Revlon
Class A common stock at an exchange ratio of 160
shares of Revlon Class A common stock for each $1,000
of liquidation preference outstanding, and (ii)
convert all 4,333 outstanding shares of Series B
convertible preferred stock of Revlon, par value
$0.01 per share, into 433,333 shares of Revlon Class
A common stock in accordance with the terms of the
certificate of designations for such Series B
convertible preferred stock. This exchange and
conversion will be consummated simultaneously with
the Exchange Offer.
In addition, pursuant to the Support Agreement, M&F
will vote in favor of, or consent to, the issuance of
shares of Revlon Class A common stock in the Exchange
Offer and pursuant to the Support Agreements with
Fidelity and M&F and the other transactions
contemplated by this term sheet and will agree to
take all actions reasonably necessary to facilitate
or otherwise support the Exchange Offer and the
transactions contemplated by this term sheet.
------------------------------------------ ------------------------------------------------------------------
4
MACANDREWS & FORBES
EQUITY CONTRIBUTION Promptly following the expiration of the Exchange
Offer, M&F agrees to subscribe for additional shares
of Revlon Class A common stock at a purchase price of
$2.50 per share in an aggregate subscription amount
equal to the sum of (x) $150 million less the
aggregate principal amount of the Additional Tendered
Notes plus (y) an amount necessary (if any) to
maintain M&F's ownership immediately after the
closing of the Exchange Offer at no less than 49% of
the Common Stock ((x) and (y) together, the "M&F
Equity Contribution", which amount shall not be less
than zero) plus (z) the amount, if any, of cash to be
paid by Revlon in exchange for Notes tendered in the
Exchange Offer, excluding cash to be paid with
respect to accrued interest at the applicable rate
(the "M&F Stock Subscription").
The "Additional Tendered Notes" are those Notes
validly tendered by any party and accepted by Revlon
in the Exchange Offer in excess of the aggregate
principal amount of the Initial Notes.
- --------------------------- ---------------------------------------------------------------------------------
USE OF PROCEEDS The net cash proceeds received by Revlon as the M&F Equity
Contribution, if any, will be contributed to Products
Corporation. Revlon will cause Products Corporation to use any
such amounts to reduce outstanding indebtedness, other than
revolving indebtedness unless there is a corresponding
commitment reduction.
Any cash received by Revlon as the M&F Stock
Subscription will be used for the cash consideration
in the Exchange Offer.
- --------------------------- --------------------------------------------------------------------------------
II. PUBLIC RIGHTS OFFERING
---------------------- As soon as reasonably practicable after the consummation of the
Exchange Offer, Revlon agrees to consummate a rights offering
(the "Public Rights Offering") pursuant to which Revlon will
distribute, on a pro rata basis and at no charge,
non-transferable rights (the "Public Rights") to each holder of
record, as of a date prior to the expiration of the Exchange
Offer, of Revlon Class A common stock and the Class B common
stock of Revlon, par value $0.01 per share ("Revlon Class B
common stock" and, together with the Revlon Class A common
stock, the "Common Stock"), to purchase its pro rata number of
shares ("Public Rights Shares") of Revlon Class A common
5
stock (the "Public Basic Subscription Privilege") at a price
per Public Rights Share equal to $2.50 (the "Public
Subscription Price"), such that the aggregate number of Public
Rights Shares to be offered in the Public Rights Offering
multiplied by the Public Subscription Price will equal the
Public Offering Amount. The "Public Offering Amount" shall be
equal to (A) the sum of (i) the M&F Equity Contribution, if
any, and (ii) the M&F Stock Subscription, divided by (B) the
M&F Ownership Percentage.
The "M&F Ownership Percentage" means the percentage of Common
Stock owned by M&F on the record date of the Public Rights
Offering.
Although M&F will receive Public Rights, it will agree in its
Support Agreement not to exercise such Public Rights.
Each holder of Public Rights who exercises in full its Public
Basic Subscription Privilege will be entitled, on a pro rata
basis, to subscribe for additional Public Rights Shares at the
Public Subscription Price, to the extent that other holders of
Public Rights do not exercise all of their Public Rights in
the Public Basic Subscription Privilege; provided that such
oversubscription privilege will be limited, in the aggregate,
to those Public Rights Shares underlying the Public Rights of
holders other than M&F.
- --------------------------- --------------------------------------------------------------------------------
USE OF PROCEEDS The net cash proceeds received by Revlon as payment for the
Public Subscription Price in the Public Rights Offering will
be contributed to Products Corporation. Revlon will cause
Products Corporation to use any such amounts to reduce
outstanding indebtedness, other than revolving indebtedness
unless there is a corresponding commitment reduction.
- --------------------------- --------------------------------------------------------------------------------
III. SECOND RIGHTS OFFERING On or prior to December 31, 2004, Revlon agrees to have closed
---------------------- an additional rights offering (the "Rights Offering") pursuant
to which Revlon will distribute, on a pro rata basis and at no
charge, rights (the "Rights") to each holder of record of the
Common Stock, to purchase its pro rata number of shares
("Rights Shares") of Revlon Class A common stock (the "Basic
Subscription Privilege") at a price per
6
Rights Share to be determined by the Board of Directors of
Revlon at the time of the Rights Offering (the "Subscription
Price"), such that the aggregate number of Rights Shares to be
offered in the Rights Offering multiplied by the Subscription
Price will equal the Aggregate Offering Amount. The "Aggregate
Offering Amount" shall be equal to the positive excess, if
any, of $200 million over the sum of (i) the aggregate
principal amount of the Additional Tendered Notes, (ii) the
M&F Equity Contribution, if any, and (iii) the aggregate
proceeds of the Public Rights Offering (such excess, if any,
being the "Aggregate Back-Stop Amount").
Each of M&F and Fidelity may exercise their Basic Subscription
Privilege and their Over-Subscription Privilege.
Each holder of Rights who exercises in full its Basic
Subscription Privilege will be entitled, on a pro rata basis,
to subscribe for additional Rights Shares at the Subscription
Price (the "Over-Subscription Privilege"), to the extent that
other holders of Rights do not exercise all of their Rights in
the Basic Subscription Privilege.
- --------------------------- --------------------------------------------------------------------------------
MACANDREWS & FORBES
BACK-STOP In the event the Rights Offering is not fully subscribed, M&F
shall, on or prior to December 31, 2004, on the same
terms as the Rights Offering, purchase all of the Back-Stop
Shares (as such term is defined below).
"Back-Stop Shares" shall mean such number of shares of Revlon
Class A common stock as equals all of the Rights Shares that
are not otherwise subscribed and paid for by the holders of
Rights under either their Basic Subscription Privilege or
their Over-Subscription Privilege, provided, however, that the
maximum number of Back-Stop Shares shall not exceed:
o (x) the Aggregate Back-Stop Amount
o divided by (y) the Subscription Price.
- --------------------------- --------------------------------------------------------------------------------
7
USE OF PROCEEDS The net cash proceeds received by Revlon as payment for the
Subscription Price in the Rights Offering will be contributed to
Products Corporation. Revlon will cause Products Corporation to
use any such amounts to reduce outstanding indebtedness, other
than revolving indebtedness unless there is a corresponding
commitment reduction.
- --------------------------- --------------------------------------------------------------------------------
IV. ADDITIONAL EQUITY OFFERINGS To the extent that the sum of (i) the aggregate principal amount
--------------------------- of the Additional Tendered Notes, (ii) the M&F Equity
Contribution, if any, (iii) the aggregate proceeds of the Public
Rights Offering, (iv) the aggregate proceeds of the Rights
Offering (including the Aggregate Back-Stop Amount) and (v) the
aggregate proceeds of any other equity offering(s) consummated
after the Exchange Offer and used by Products Corporation to
reduce outstanding indebtedness, other than revolving
indebtedness unless there is a corresponding commitment
reduction, is less than $300 million (such shortfall, if any,
the "Aggregate Additional Offering Amount"), Revlon will agree
to consummate, on or prior to March 31, 2006, one or more
offerings (which may be rights offerings and/or issuances of
Revlon Class A common stock in a public offering or private
placement or other exempt transactions either for cash or in
exchange for outstanding indebtedness of Products Corporation)
in order to reduce the outstanding indebtedness of Products
Corporation, other than revolving indebtedness unless there is a
corresponding commitment reduction, by the Aggregate Additional
Offering Amount (the "Additional Offerings").
The offering price and terms of any Additional Offerings shall
be determined by the Board of Directors of Revlon at the time
of the Additional Offerings.
In the event that by March 31, 2006 the proceeds (or aggregate
principal amount of notes tendered in any exchange) of the
Additional Offerings are less than the Aggregate Additional
Offering Amount, M&F will agree to purchase shares (the
"Aggregate Additional Back-Stop Amount") of Revlon Class A
common stock for an amount of cash such that Products
Corporation reduces indebtedness, other than
8
revolving indebtedness unless there is a corresponding
commitment reduction, in an aggregate principal amount equal
to the Aggregate Additional Offering Amount.
M&F may satisfy its obligations by making an investment in
Revlon Class A common stock in an amount equal to the
Aggregate Additional Back-Stop Amount pursuant to any
transaction approved by Revlon's Board of Directors, which may
include a rights offering.
- --------------------------- --------------------------------------------------------------------------------
USE OF PROCEEDS The net cash proceeds received by Revlon in the Additional
Offerings (including the Aggregate Additional Back-Stop Amount)
will be contributed to Products Corporation. Revlon will cause
Products Corporation to use any such amounts to reduce
outstanding indebtedness, other than revolving indebtedness
unless there is a corresponding commitment reduction.
- --------------------------- --------------------------------------------------------------------------------
AMENDMENTS, WAIVERS
-------------------
The terms will not be amended or waived without the written
consent of each of Fidelity, M&F and Revlon.
- --------------------------- --------------------------------------------------------------------------------
V. CORPORATE GOVERNANCE As of the date of the closing of the Exchange Offer, Revlon, M&F
-------------------- and Fidelity shall enter into a shareholders agreement pursuant
to which the parties will agree that:
o Revlon will maintain a majority of Independent
Directors on its Board of Directors. "Independent
Directors" shall be those directors who satisfy the
"independence" criteria set forth in the New York Stock
Exchange ("NYSE") listing rules; provided, however,
that any Fidelity Appointees (as such term is defined
below) shall be deemed to be Independent Directors for
purposes of the shareholders agreement;
o Fidelity shall be entitled to nominate to the Board
of Directors (i) two directors for so long as
Fidelity holds at least 10% of the outstanding voting
stock of Revlon or (ii) one director for so long as
Fidelity holds at least 5% but less than 10% of the
outstanding voting stock of Revlon (each a "Fidelity
Appointee"
9
and, collectively, the "Fidelity Appointees");
o One Fidelity Appointee, to be designated by Fidelity,
shall be entitled to sit on all standing committees
of the Board of Directors of Revlon, subject to
satisfaction of applicable listing standards and
other applicable laws, rules and regulations;
o Fidelity, M&F and all controlled affiliates of M&F
will vote their respective shares of Common Stock to
give effect to the agreements referred to in the
prior three bullet points;
o Revlon shall establish within 30 days after the
consummation of the Exchange Offer and maintain a
Nominating and Corporate Governance Committee of the
Board of Directors;
o Revlon shall not conduct any business or enter into any
transaction or series of similar transactions with any
affiliate of Revlon (other than Revlon's subsidiaries)
or a legal or beneficial owner of 10% or more of the
voting power of the voting stock of Revlon or an
affiliate of such owner (other than any transaction (i)
contemplated herein or pursuant to agreements or
arrangements entered into prior to the date hereof and
disclosed to Fidelity or (ii) specifically permitted by
the indentures pursuant to which the Notes were issued)
unless: (a) with respect to a transaction or series of
related transactions, other than the purchase or sale
of inventory in the ordinary course of business,
involving aggregate payments or other consideration in
excess of $5.0 million, such transaction or series of
related transactions has been approved by all the
Independent Directors of the Board of Directors of
Revlon, and (b) with respect to a transaction or series
of related transactions, other than the purchase or
sale of inventory in the ordinary course of business,
involving aggregate payments or other consideration in
10
excess of $20.0 million, 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 Revlon.
The shareholders agreement shall terminate at such time as
Fidelity ceases to hold at least 5% of the outstanding voting
stock of Revlon. From the date hereof, Revlon shall not enter
into any material transaction pending the appointment of the
Fidelity Appointees as set forth above.
Without the consent of Fidelity, Revlon, Inc. will not permit
Products Corporation to have outstanding aggregate borrowings
under the M&F $125 Million Loan and the M&F $65 Million Line
of Credit at any time in excess of (i) $190 million minus (ii)
the principal amount of borrowings under the M&F $125 Million
Loan and the M&F $65 Million Line of Credit exchanged for
Revlon Class A common stock in the Exchange Offer minus (iii)
the original commitment amount of the Additional Credit
Facility.
- --------------------------- --------------------------------------------------------------------------------
VI. ADDITIONAL CREDIT
FACILITY UBS or a lender under Products Corporation's bank credit
----------------- agreement shall provide $65 million of additional liquidity to
Products Corporation by becoming part of Products
Corporation's bank credit agreement or increasing such
lender's commitment thereunder, as the case may be.
--------------------------- --------------------------------------------------------------------------------
VII. PRESS RELEASE The text of any press release describing the Exchange Offers
------------- or other transactions contemplated by this Term Sheet shall be
reasonably satisfactory to Fidelity, except as required by
applicable law.
- --------------------------- --------------------------------------------------------------------------------
11
Exhibit B
---------
[Fidelity Support Agreement]
EXHIBIT 10.24
February 11, 2004
Fidelity Management & Research Co.
c/o Fidelity Investments
82 Devonshire Street E31C
Boston, Massachusetts 02109
Attention: Nate Van Duzer
Assistant General Counsel
Facsimile: (617) 476-5174
email: Nate.VanDuzer@FMR.COM
Ladies and Gentlemen:
This exchange support agreement ("Support Agreement") is to confirm
that if, on or prior to 5:00 p.m. New York City time, on March 1, 2004, Revlon,
Inc. ("Revlon") commences an exchange offer (the "Exchange Offer") for certain
series of notes of Revlon Consumer Products Corporation ("RCPC" and, together
with Revlon, the "Company") for or into a combination of equity and cash and
other related transactions to exchange or convert, as applicable, certain
indebtedness of RCPC and preferred stock of Revlon (collectively, with the
Exchange Offer, the "Refinancing Transactions") in accordance with the terms set
forth on Exhibit A hereto (the "Term Sheet"), the undersigned holder (the
"Noteholder") holding (i) 9% Senior Notes due 2006 of RCPC and guaranteed by
Revlon (the "9% Senior Notes"), (ii) 8 1/8% Senior Notes due 2006 of RCPC and
guaranteed by Revlon (the "8 1/8% Senior Notes"), and/or (iii) 8 5/8% Senior
Subordinated Notes due 2008 of RCPC and guaranteed by Revlon (the "8 5/8% Senior
Subordinated Notes" and, collectively with the 9% Senior Notes and the 8 1/8%
Senior Notes, the "Notes"), will, as soon as practical but no later than the
fifteenth business day following the commencement of the Exchange Offer (the
"Tender Date"), tender, and will cause its affiliates and consolidated funds to
tender, into the Exchange Offer, in exchange for shares of Revlon Class A common
stock (as defined in the Term Sheet), the aggregate principal amount and series
of Notes set forth under the Noteholder's name (collectively, the "Initial
Fidelity Notes"), in accordance with the applicable procedures set forth in the
definitive offering circular relating to the Exchange Offer. In exchange for any
interest accrued and unpaid on the tendered Notes at the applicable rate and in
accordance with the applicable procedures set forth in the definitive offering
circular relating to the Exchange Offer, the Noteholder (and its affiliates and
consolidated funds) shall elect to receive either cash or Revlon Class A common
stock.
The closing of the Refinancing Transactions and the M&F Equity
Contribution (as defined in the Term Sheet) shall take place on the same day.
Prior to the Termination Date (as defined below) and subject to the
terms and conditions of this Support Agreement, the Noteholder agrees not to,
and will cause its
controlled affiliates and consolidated funds not to, take, or cause to be taken,
directly or indirectly, any action inconsistent with the consummation of, or
opposing, the Refinancing Transactions or the transactions contemplated by the
Term Sheet. Prior to the Termination Date, the Noteholder agrees to, and will
cause its controlled affiliates and consolidated funds to, take, or cause to be
taken, all actions reasonably necessary to facilitate, encourage or otherwise
support the Refinancing Transactions and the transactions contemplated by the
Term Sheet.
Prior to the Termination Date, the Noteholder will not, and will cause
its controlled affiliates and consolidated funds not to, withdraw or revoke any
tender contemplated by this Support Agreement unless the Exchange Offer is
terminated before its expiration or modified without such Noteholder's prior
written consent or this Support Agreement is terminated in accordance with its
terms.
The Noteholder's obligation to tender as contemplated by this Support
Agreement, is subject to the following conditions (each a "Condition" and
collectively, the "Conditions"): (a) the preparation and, as appropriate, the
dissemination or execution of definitive documentation, in form and substance
reasonably satisfactory to the Noteholder, necessary to implement the
Refinancing Transactions and the transactions contemplated by the Term Sheet in
accordance with the terms of such Term Sheet, including, without limitation (i)
offering materials, (ii) certificates and agreements, if any, relating to the
securities to be issued in the Refinancing Transactions (the foregoing documents
and agreements in (i) and (ii) above, as amended or supplemented, the
"Documents"), (iii) amendments to RCPC's senior secured credit facility if
required to consummate the transactions contemplated by this Support Agreement,
and (iv) the execution by Revlon and Mafco of a Shareholders Agreement by and
among Mafco, the Noteholder and the Company (the "Shareholders Agreement"); (b)
the Documents not containing any misstatement of a material fact or omitting to
state a material fact necessary to make statements therein, in the light of the
circumstances under which they are made, not misleading (a "Material
Misstatement"); (c) the Company receiving all material third party consents and
approvals contemplated by the Term Sheet or otherwise required to consummate the
transactions contemplated hereby and in the Term Sheet; and (d) no material
breach by the Company of the Covenants set forth below.
Each of the parties covenants and agrees as follows (each a "Covenant"
and collectively, the "Covenants"): (a) except as contemplated by this Support
Agreement, the definitive offering circular for the Exchange Offer, the Term
Sheet and the Mafco Support Agreement (as defined below), between the date
hereof and the Termination Date, the Company shall (i) conduct business in the
ordinary course in accordance with past practice, and (ii) not issue or agree to
issue any securities of the Company (other than to employees pursuant to the
Revlon, Inc. Fourth Amended and Restated 1996 Stock Plan or any other equity
based compensation plan), make any distributions to equity holders or incur any
material indebtedness other than under existing facilities or the Additional
Credit Facility (as defined in the Term Sheet), without the consent of the
Noteholder; (b) the Company will conduct the Rights Offering and the Additional
Offerings (each as defined in the Term Sheet) in accordance with the terms set
forth in
2
the Term Sheet and applicable law; (c) the Company shall pay, if the Exchange
Offer is consummated, on the expiration date of the Exchange Offer, and
otherwise on the Termination Date, all reasonable fees and documented expenses
incurred by Kramer Levin Naftalis & Frankel LLP ("Bondholder Counsel") and
Jefferies & Co. Inc. ("Bondholder Advisor") in connection with the Term Sheet,
this Support Agreement and any transactions contemplated hereby, as to the
Bondholder Advisor, on the terms set forth in the Engagement Letter Agreement
between Bondholder Advisor and Noteholder dated as of January 14, 2004 in the
form approved by Revlon, without any amendments or modifications thereto, and,
as to Bondholder Counsel, on the terms set forth in the fee letter agreement
between the Noteholder, Bondholder Counsel and Revlon dated January 14, 2004;
and (d) the Company and the Noteholder shall negotiate in good faith, and enter
into the Shareholders Agreement containing such terms as are set forth in the
Term Sheet.
Without the Noteholder's consent, Revlon shall not permit RCPC to have
outstanding aggregate borrowings, at any time, under the (i) $125 Million 2004
Senior Unsecured Multiple-Draw Term Loan Agreement, dated as of January 28,
2004, between RCPC and MacAndrews & Forbes Holdings Inc. ("MacAndrews Holdings")
(the "$125 Million Term Loan") and (ii) $65 Million Senior Unsecured
Supplemental Line of Credit Agreement, dated as of February 5, 2003, between
RCPC and MacAndrews Holdings, as amended (the "$65 Million Line of Credit"), in
excess of (a) $190 million minus (b) the aggregate principal amount of
borrowings under the $125 Million Term Loan and the $65 Million Line of Credit
exchanged by MacAndrews Holdings for Revlon Class A common stock in the
Refinancing Transactions minus (c) the original commitment amount of the
Additional Credit Facility (the "Borrowing Limitation").
Revlon's acceptance of any Notes tendered by the Noteholder (or an
affiliate or consolidated fund) shall be subject to satisfaction of each of the
Conditions (or waiver by the Noteholder of each of the Conditions), provided,
however, that Revlon will not make any material modification of the terms of the
Exchange Offer, without the Noteholder's consent. This Support Agreement shall
terminate upon the first to occur (the "Termination Date") of (a) the
termination, expiration or consummation of the Exchange Offer; (b) any court of
competent jurisdiction or other competent governmental or regulatory authority
issuing an order making illegal or otherwise restricting, preventing or
prohibiting the Exchange Offer in a way that cannot be reasonably remedied by
the Company; (c) material breach by the Company of any of the Covenants; (d) the
lenders under RCPC's senior secured credit facility having accelerated any
amounts owed thereunder; (e) June 30, 2004, if the Exchange Offer has not been
consummated by such date; (f) the Documents not being consistent in all material
respects with the terms and provisions of the Term Sheet or containing any
provision materially inconsistent with the Term Sheet; or (g) a Material
Misstatement.
Prior to the Termination Date, the Noteholder agrees that, without
Revlon's prior written consent, it will not, and will cause its affiliates and
consolidated funds not to, directly or indirectly, sell, assign, grant an option
with respect to, transfer or otherwise dispose of any of the Initial Fidelity
Notes, in whole or in part, unless the transferee
3
agrees in writing to be bound by the terms of this Support Agreement with
respect to the Notes purchased by such transferee as though it was an original
signatory hereto, which writing the Noteholder (or affiliate or consolidated
fund) shall provide to the Company and is found by the Company to be reasonably
acceptable.
Unless required by applicable law or regulation, prior to the initial
press release (which press release shall be in form and substance reasonably
satisfactory to the Noteholder except in all cases as required by applicable
law) describing the Refinancing Transactions, this Support Agreement and the
Mafco Support Agreement (as defined below), the Company shall not disclose the
Noteholder's (or any affiliate's or consolidated fund's) identity or its
individual holdings of Notes without the prior written consent of the
Noteholder; and if such announcement or disclosure is so required by law or
regulation, the Company shall use its commercially reasonable best efforts to
afford the Noteholder a reasonable opportunity to review, comment upon, object
to or seek a consent order preventing any such announcement or disclosure prior
to the Company's making such announcement or disclosure. The foregoing shall not
prohibit the Company from disclosing the approximate aggregate principal amount
of the Initial Fidelity Notes held by the Noteholder (and its affiliates and
consolidated funds).
Each of the parties represents to each other party that, as of the date
of this Support Agreement, such party is, and at all times thereafter until the
Termination Date such party will be duly organized, validly existing, and in
good standing under the laws of the state of its organization, and has all
requisite corporate, partnership, or limited liability company power and
authority to enter into this Support Agreement and to carry out the transactions
contemplated by, and perform its respective obligations under, this Support
Agreement.
Without limiting the rights of each party hereto to pursue all other
legal and equitable rights available to such party for any other party's failure
to perform each of its obligations under this Support Agreement, it is
understood and agreed by each of the parties that any breach of or threatened
breach of this Support Agreement would give rise to irreparable harm for which
money damages would not be an adequate remedy and, accordingly, the parties
agree that, in addition to any other remedies, each non-breaching party shall be
entitled to specific performance and injunctive or other equitable relief for
any such breach or threatened breach. To the extent any of the parties may be
entitled to the benefit of any provision of law requiring any party in any suit,
action or proceeding arising out of or in connection with this Support Agreement
or any of the transactions contemplated hereby to post security for litigation
costs or otherwise post a performance bond or guaranty or to take any similar
action, each party hereby irrevocably waives such benefit, in each case to the
fullest extent now or hereafter permitted under the laws of any such other
jurisdiction.
This Support Agreement is intended to bind and inure to the benefit of
the parties and their respective successors, assigns, heirs, executors,
administrators and representatives.
4
This Support Agreement, as may be supplemented by the Shareholders
Agreement, upon execution thereof, including the exhibit(s) hereto and thereto,
constitutes the entire agreement of the parties with respect to the subject
matter of this Support Agreement, and supersedes all other prior negotiations,
agreements, and understandings, whether written or oral, among the parties with
respect to the subject matter of this Support Agreement; provided, however, that
any confidentiality agreement executed by any party hereto shall survive this
agreement and shall continue in full force and effect irrespective of the terms
hereof, including, without limitation, the Confidentiality Agreement dated
January 13, 2004, between Fidelity Management & Research Co., Bondholder Advisor
and Revlon.
The Noteholder acknowledges, that on the date hereof, Revlon has
entered into an exchange support agreement with Mafco Holdings Inc. ("Mafco")
with respect to certain debt securities, other indebtedness and preferred stock
held by Mafco or its affiliates other than Revlon and its subsidiaries, the form
of which agreement is attached as Exhibit B hereto (the "Mafco Support
Agreement"). Revlon agrees that it will not agree to any amendment or waiver to
the terms of the Mafco Support Agreement without the prior written consent of
the Noteholder.
This Support Agreement may be executed in one or more counterparts
(which may be by facsimile), each of which shall be deemed an original and all
of which shall constitute one and the same agreement.
All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or mailed (first class postage prepaid) or emailed
to the parties at the following addresses, facsimile numbers or email addresses:
If to the Noteholder:
As specified on the signature page hereto, with one copy
(which shall not constitute notice) to:
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, N.Y. 10022
Attention: Mitchell Seider
Facsimile: (212) 715-7582
Email: mseider@kramerlevin.com
If to Revlon, to:
Revlon, Inc.
237 Park Avenue
New York, NY 10017
Attention: Steven Schiffman, Senior Vice President
and Treasurer
5
Facsimile: 212-527-5530
Email: steven.schiffman@revlon.com
With one copy to:
Revlon, Inc.
237 Park Avenue
New York, NY
Attention: Robert K. Kretzman
Executive Vice President and Chief Legal Officer
Facsimile: 212-527-5693
Email: robert.kretzman@revlon.com
With one copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: J. Gregory Milmoe
Facsimile: 212-735-2000
Email: jmilmoe@skadden.com
This Support Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York (without regard to its laws
relating to conflicts of laws). The parties agree that all actions or
proceedings arising in connection with this Support Agreement shall be tried and
litigated only in the federal or state courts located in the County of New York,
State of New York. The parties hereto hereby irrevocably submit to the exclusive
jurisdiction of the federal and state courts located in the County of New York,
State of New York for the purpose of any such action or proceeding. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Nothing expressed or referred to in this Support Agreement will be
construed to give any person, other than the parties to this Support Agreement
or Mafco, any legal or equitable right, remedy, or claim under or with respect
to this Support Agreement or any provision of this Support Agreement. This
Support Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Support Agreement, provided, however,
Mafco is an intended third party beneficiary of this Support Agreement (other
than with respect to the Borrowing Limitation) and Mafco's prior written consent
shall be required for any amendment or waiver of this Support Agreement (other
than with respect to the Borrowing Limitation).
Any provision of this Support Agreement may be amended or waived, if,
and only if, such amendment or waiver is in writing and signed by each of the
parties hereto. No
6
failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
7
If any provision of this Support Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Support Agreement will remain in full force and effect. Any provision of
this Support Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
Very truly yours,
REVLON, INC.
By: /s/ Robert K. Kretzman
------------------------------
Name: Robert K. Kretzman
Title: Executive Vice President
8
ACKNOWLEDGED AND AGREED:
Fidelity Management & Research Co.
/s/ Nate Van Duzer
------------------------------------------
Authorized Signature
Nate Van Duzer, Assistant General Counsel
-----------------------------------------
(Type or Print Name and Title of Authorized
Signatory)
$47,368,000
-----------
Principal Amount of 9% Senior Notes due 2006 as
of the date hereof
$75,620,000
-----------
Principal Amount of 8 1/8% Senior Notes due 2006
as of the date hereof
$32,072,000
-----------
Principal Amount of 8 5/8% Senior Subordinated
Notes due 2008 as of the date hereof
Address for Notices to Noteholder:
Fidelity Management & Research Co.
c/o Fidelity Investments
82 Devonshire Street E31C
Boston, MA 02109
Attention: Nate Van Duzer
Assistant General Counsel
Facsimile: (617) 476-5174
9
Exhibit A
---------
TERMS OF
EXCHANGE OFFER FOR ANY AND ALL
- ------------------------------------------ ------------------------------------------------------------------
I. EXCHANGE OFFER Revlon, Inc. ("Revlon") agrees, in reliance on the exemption
-------------- from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act"), provided by Section
3(a)(9) thereof, to conduct an exchange offer (the "Exchange
Offer"), pursuant to which Revlon will offer holders of certain
series of notes issued by its wholly owned subsidiary, Revlon
Consumer Products Corporation ("Products Corporation"), and
guaranteed by Revlon, the option to receive (i) shares of Class
A common stock of Revlon, par value $0.01 per share ("Revlon
Class A common stock"), or (ii) cash, subject to proration as
described below, in exchange for their notes and guaranties.
As described below, Fidelity and M&F (as such terms
are defined below) agree to exchange notes and
guaranties thereof and, in the case of M&F, certain
other debt obligations of Products Corporation and
preferred stock of Revlon for shares of Revlon Class
A common stock.
- ------------------------------------------ ------------------------------------------------------------------
EXCHANGE OFFER
CONSIDERATION
For each $1,000 principal amount of notes tendered in
the Exchange Offer, holders of Products Corporation's
8 1/8% Senior Notes due 2006 (the "8 1/8% Senior Notes")
and 9% Senior Notes due 2006 (the "9% Senior Notes")
(together, the "Senior Notes") may elect to receive:
o 400 shares of Revlon Class A common stock; or
o $830, in the case of the 8 1/8% Senior Notes, in cash; or
o $800, in the case of the 9% Senior Notes, in cash;
o plus, in each case, accrued and unpaid interest,
which will be paid in Revlon Class A common stock or
cash at the option of the holder
(without regard to whether such holder has
elected to receive Revlon Class A common
stock or cash in exchange for its Notes).
For each $1,000 principal amount of notes
tendered in the Exchange Offer, holders of
Products Corporation's 8 5/8% Senior
Subordinated Notes due 2008 (the
"Subordinated Notes" and, together with the
Senior Notes, the "Notes") may elect to
receive:
o 300 shares of Revlon Class A common stock; or
o $620 in cash;
o plus, in each case, accrued and unpaid
interest, which will be paid in Revlon Class
A common stock or cash at the option of the
holder (without regard to whether such
holder has elected to receive Revlon Class A
common stock or cash in exchange for its
Notes).
Notwithstanding the foregoing, Fidelity, with respect to the
Initial Fidelity Notes (as such term is defined below), and M&F
agree to receive Revlon Class A common stock in exchange for the
principal amount of Notes tendered and M&F agrees to receive
Revlon Class A common stock with respect to accrued and unpaid
interest, in each case as described below in the section
entitled "Support Agreements."
- ------------------------------------------ ------------------------------------------------------------------
PRORATION The maximum aggregate principal amount of Notes that may be
tendered for cash (the "Cash Exchange Amount") in the Exchange
Offer will be limited to $150 million, which amount will be
reduced by the aggregate principal amount of Additional Tendered
Notes (as such term is defined below) tendered and exchanged for
Revlon Class A common stock. In the event that holders of Notes
with an aggregate principal amount in excess of the Cash
Exchange Amount elect to receive cash, the cash consideration
will be apportioned pro rata first, among the tendering holders
of Subordinated Notes that elected to receive cash consideration
and then, to the extent that any portion of the Cash Exchange
Amount has not been allocated, pro rata among the tendering
holders of Senior Notes
2
that elected to receive cash consideration.
Holders that have elected to receive cash
consideration may further elect, in the event that
they are subject to proration, to have the portion of
their tendered Notes for which they will not receive
cash returned to them. If they do not make such
election, holders will receive Revlon Class A common
stock for the portion of their tendered Notes for
which they will not receive cash.
- ------------------------------------------ ------------------------------------------------------------------
WITHDRAWAL RIGHTS None.
- ------------------------------------------ ------------------------------------------------------------------
SUPPORT AGREEMENTS Fidelity Management & Research Co. and its affiliates and
consolidated funds, (collectively, "Fidelity") hold $155.06
million aggregate principal amount of Notes (the "Initial
Fidelity Notes"). Fidelity will enter into a Support Agreement
with Revlon, whereby it will agree to exchange the Initial
Fidelity Notes in the Exchange Offer, for shares of Revlon Class
A common stock. Fidelity may elect to receive either cash or
Revlon Class A common stock in exchange for accrued and unpaid
interest (at the applicable rate) on such tendered Notes.
Mafco Holdings Inc. and its affiliates other than
Revlon or any of its subsidiaries (collectively,
"M&F") hold $285.77 million aggregate principal
amount of Notes (the "Initial M&F Notes" and,
together with the Initial Fidelity Notes, the
"Initial Notes"). M&F will enter into a Support
Agreement with Revlon, whereby it will agree to
exchange in the Exchange Offer the Initial M&F Notes,
together with any additional Notes acquired by it
from the date of the Support Agreement through the
closing of the Exchange Offer, in exchange for shares
of Revlon Class A common stock, including with
respect to accrued and unpaid interest (at the
applicable rate) on such tendered Notes.
In addition, pursuant to the Support Agreement, M&F
will agree to exchange (x) any and all amounts
outstanding (including accrued and unpaid interest
thereon at the applicable rate), as of the date of
the closing of the Exchange Offer, under each of (i)
the $100 Million Senior Unsecured Multiple-Draw Term
Loan Agreement, dated as of February 5, 2003, between
Products Corporation and M&F, as amended,
3
(ii) the $65 Million Senior Unsecured Supplemental
Line of Credit Agreement, dated as of February 5,
2003, between Products Corporation and M&F, as
amended (the "M&F $65 Million Line of Credit"), and
(iii) the $125 Million 2004 Senior Unsecured
Multiple-Draw Term Loan Agreement, dated as of
January 28, 2004, between Products Corporation and
M&F (the "M&F $125 Million Loan"), each at an
exchange ratio of 400 shares of Revlon Class A common
stock for each $1,000 of indebtedness outstanding
thereunder, and (y) an aggregate of $24.1 million
outstanding under certain non-interest bearing
subordinated promissory notes payable by Products
Corporation, at an exchange ratio of 300 shares of
Revlon Class A common stock for each $1,000 of
indebtedness outstanding thereunder. This exchange
will be consummated simultaneously with the Exchange
Offer.
In addition, pursuant to the Support Agreement, M&F
will agree to (i) exchange all 546 outstanding shares
of Series A preferred stock of Revlon, par value
$0.01 per share, having an aggregate liquidation
preference of $54.6 million, for shares of Revlon
Class A common stock at an exchange ratio of 160
shares of Revlon Class A common stock for each $1,000
of liquidation preference outstanding, and (ii)
convert all 4,333 outstanding shares of Series B
convertible preferred stock of Revlon, par value
$0.01 per share, into 433,333 shares of Revlon Class
A common stock in accordance with the terms of the
certificate of designations for such Series B
convertible preferred stock. This exchange and
conversion will be consummated simultaneously with
the Exchange Offer.
In addition, pursuant to the Support Agreement, M&F
will vote in favor of, or consent to, the issuance of
shares of Revlon Class A common stock in the Exchange
Offer and pursuant to the Support Agreements with
Fidelity and M&F and the other transactions
contemplated by this term sheet and will agree to
take all actions reasonably necessary to facilitate
or otherwise support the Exchange Offer and the
transactions contemplated by this term sheet.
------------------------------------------ ------------------------------------------------------------------
4
MACANDREWS & FORBES
EQUITY CONTRIBUTION Promptly following the expiration of the Exchange
Offer, M&F agrees to subscribe for additional shares
of Revlon Class A common stock at a purchase price of
$2.50 per share in an aggregate subscription amount
equal to the sum of (x) $150 million less the
aggregate principal amount of the Additional Tendered
Notes plus (y) an amount necessary (if any) to
maintain M&F's ownership immediately after the
closing of the Exchange Offer at no less than 49% of
the Common Stock ((x) and (y) together, the "M&F
Equity Contribution", which amount shall not be less
than zero) plus (z) the amount, if any, of cash to be
paid by Revlon in exchange for Notes tendered in the
Exchange Offer, excluding cash to be paid with
respect to accrued interest at the applicable rate
(the "M&F Stock Subscription").
The "Additional Tendered Notes" are those Notes
validly tendered by any party and accepted by Revlon
in the Exchange Offer in excess of the aggregate
principal amount of the Initial Notes.
- --------------------------- ---------------------------------------------------------------------------------
USE OF PROCEEDS The net cash proceeds received by Revlon as the M&F Equity
Contribution, if any, will be contributed to Products
Corporation. Revlon will cause Products Corporation to use any
such amounts to reduce outstanding indebtedness, other than
revolving indebtedness unless there is a corresponding
commitment reduction.
Any cash received by Revlon as the M&F Stock
Subscription will be used for the cash consideration
in the Exchange Offer.
- --------------------------- --------------------------------------------------------------------------------
II. PUBLIC RIGHTS OFFERING
---------------------- As soon as reasonably practicable after the consummation of the
Exchange Offer, Revlon agrees to consummate a rights offering
(the "Public Rights Offering") pursuant to which Revlon will
distribute, on a pro rata basis and at no charge,
non-transferable rights (the "Public Rights") to each holder of
record, as of a date prior to the expiration of the Exchange
Offer, of Revlon Class A common stock and the Class B common
stock of Revlon, par value $0.01 per share ("Revlon Class B
common stock" and, together with the Revlon Class A common
stock, the "Common Stock"), to purchase its pro rata number of
shares ("Public Rights Shares") of Revlon Class A common
5
stock (the "Public Basic Subscription Privilege") at a price
per Public Rights Share equal to $2.50 (the "Public
Subscription Price"), such that the aggregate number of Public
Rights Shares to be offered in the Public Rights Offering
multiplied by the Public Subscription Price will equal the
Public Offering Amount. The "Public Offering Amount" shall be
equal to (A) the sum of (i) the M&F Equity Contribution, if
any, and (ii) the M&F Stock Subscription, divided by (B) the
M&F Ownership Percentage.
The "M&F Ownership Percentage" means the percentage of Common
Stock owned by M&F on the record date of the Public Rights
Offering.
Although M&F will receive Public Rights, it will agree in its
Support Agreement not to exercise such Public Rights.
Each holder of Public Rights who exercises in full its Public
Basic Subscription Privilege will be entitled, on a pro rata
basis, to subscribe for additional Public Rights Shares at the
Public Subscription Price, to the extent that other holders of
Public Rights do not exercise all of their Public Rights in
the Public Basic Subscription Privilege; provided that such
oversubscription privilege will be limited, in the aggregate,
to those Public Rights Shares underlying the Public Rights of
holders other than M&F.
- --------------------------- --------------------------------------------------------------------------------
USE OF PROCEEDS The net cash proceeds received by Revlon as payment for the
Public Subscription Price in the Public Rights Offering will
be contributed to Products Corporation. Revlon will cause
Products Corporation to use any such amounts to reduce
outstanding indebtedness, other than revolving indebtedness
unless there is a corresponding commitment reduction.
- --------------------------- --------------------------------------------------------------------------------
III. SECOND RIGHTS OFFERING On or prior to December 31, 2004, Revlon agrees to have closed
---------------------- an additional rights offering (the "Rights Offering") pursuant
to which Revlon will distribute, on a pro rata basis and at no
charge, rights (the "Rights") to each holder of record of the
Common Stock, to purchase its pro rata number of shares
("Rights Shares") of Revlon Class A common stock (the "Basic
Subscription Privilege") at a price per
6
Rights Share to be determined by the Board of Directors of
Revlon at the time of the Rights Offering (the "Subscription
Price"), such that the aggregate number of Rights Shares to be
offered in the Rights Offering multiplied by the Subscription
Price will equal the Aggregate Offering Amount. The "Aggregate
Offering Amount" shall be equal to the positive excess, if
any, of $200 million over the sum of (i) the aggregate
principal amount of the Additional Tendered Notes, (ii) the
M&F Equity Contribution, if any, and (iii) the aggregate
proceeds of the Public Rights Offering (such excess, if any,
being the "Aggregate Back-Stop Amount").
Each of M&F and Fidelity may exercise their Basic Subscription
Privilege and their Over-Subscription Privilege.
Each holder of Rights who exercises in full its Basic
Subscription Privilege will be entitled, on a pro rata basis,
to subscribe for additional Rights Shares at the Subscription
Price (the "Over-Subscription Privilege"), to the extent that
other holders of Rights do not exercise all of their Rights in
the Basic Subscription Privilege.
- --------------------------- --------------------------------------------------------------------------------
MACANDREWS & FORBES
BACK-STOP In the event the Rights Offering is not fully subscribed, M&F
shall, on or prior to December 31, 2004, on the same
terms as the Rights Offering, purchase all of the Back-Stop
Shares (as such term is defined below).
"Back-Stop Shares" shall mean such number of shares of Revlon
Class A common stock as equals all of the Rights Shares that
are not otherwise subscribed and paid for by the holders of
Rights under either their Basic Subscription Privilege or
their Over-Subscription Privilege, provided, however, that the
maximum number of Back-Stop Shares shall not exceed:
o (x) the Aggregate Back-Stop Amount
o divided by (y) the Subscription Price.
- --------------------------- --------------------------------------------------------------------------------
7
USE OF PROCEEDS The net cash proceeds received by Revlon as payment for the
Subscription Price in the Rights Offering will be contributed to
Products Corporation. Revlon will cause Products Corporation to
use any such amounts to reduce outstanding indebtedness, other
than revolving indebtedness unless there is a corresponding
commitment reduction.
- --------------------------- --------------------------------------------------------------------------------
IV. ADDITIONAL EQUITY OFFERINGS To the extent that the sum of (i) the aggregate principal amount
--------------------------- of the Additional Tendered Notes, (ii) the M&F Equity
Contribution, if any, (iii) the aggregate proceeds of the Public
Rights Offering, (iv) the aggregate proceeds of the Rights
Offering (including the Aggregate Back-Stop Amount) and (v) the
aggregate proceeds of any other equity offering(s) consummated
after the Exchange Offer and used by Products Corporation to
reduce outstanding indebtedness, other than revolving
indebtedness unless there is a corresponding commitment
reduction, is less than $300 million (such shortfall, if any,
the "Aggregate Additional Offering Amount"), Revlon will agree
to consummate, on or prior to March 31, 2006, one or more
offerings (which may be rights offerings and/or issuances of
Revlon Class A common stock in a public offering or private
placement or other exempt transactions either for cash or in
exchange for outstanding indebtedness of Products Corporation)
in order to reduce the outstanding indebtedness of Products
Corporation, other than revolving indebtedness unless there is a
corresponding commitment reduction, by the Aggregate Additional
Offering Amount (the "Additional Offerings").
The offering price and terms of any Additional Offerings shall
be determined by the Board of Directors of Revlon at the time
of the Additional Offerings.
In the event that by March 31, 2006 the proceeds (or aggregate
principal amount of notes tendered in any exchange) of the
Additional Offerings are less than the Aggregate Additional
Offering Amount, M&F will agree to purchase shares (the
"Aggregate Additional Back-Stop Amount") of Revlon Class A
common stock for an amount of cash such that Products
Corporation reduces indebtedness, other than
8
revolving indebtedness unless there is a corresponding
commitment reduction, in an aggregate principal amount equal
to the Aggregate Additional Offering Amount.
M&F may satisfy its obligations by making an investment in
Revlon Class A common stock in an amount equal to the
Aggregate Additional Back-Stop Amount pursuant to any
transaction approved by Revlon's Board of Directors, which may
include a rights offering.
- --------------------------- --------------------------------------------------------------------------------
USE OF PROCEEDS The net cash proceeds received by Revlon in the Additional
Offerings (including the Aggregate Additional Back-Stop Amount)
will be contributed to Products Corporation. Revlon will cause
Products Corporation to use any such amounts to reduce
outstanding indebtedness, other than revolving indebtedness
unless there is a corresponding commitment reduction.
- --------------------------- --------------------------------------------------------------------------------
AMENDMENTS, WAIVERS
-------------------
The terms will not be amended or waived without the written
consent of each of Fidelity, M&F and Revlon.
- --------------------------- --------------------------------------------------------------------------------
V. CORPORATE GOVERNANCE As of the date of the closing of the Exchange Offer, Revlon, M&F
-------------------- and Fidelity shall enter into a shareholders agreement pursuant
to which the parties will agree that:
o Revlon will maintain a majority of Independent
Directors on its Board of Directors. "Independent
Directors" shall be those directors who satisfy the
"independence" criteria set forth in the New York Stock
Exchange ("NYSE") listing rules; provided, however,
that any Fidelity Appointees (as such term is defined
below) shall be deemed to be Independent Directors for
purposes of the shareholders agreement;
o Fidelity shall be entitled to nominate to the Board
of Directors (i) two directors for so long as
Fidelity holds at least 10% of the outstanding voting
stock of Revlon or (ii) one director for so long as
Fidelity holds at least 5% but less than 10% of the
outstanding voting stock of Revlon (each a "Fidelity
Appointee"
9
and, collectively, the "Fidelity Appointees");
o One Fidelity Appointee, to be designated by Fidelity,
shall be entitled to sit on all standing committees
of the Board of Directors of Revlon, subject to
satisfaction of applicable listing standards and
other applicable laws, rules and regulations;
o Fidelity, M&F and all controlled affiliates of M&F
will vote their respective shares of Common Stock to
give effect to the agreements referred to in the
prior three bullet points;
o Revlon shall establish within 30 days after the
consummation of the Exchange Offer and maintain a
Nominating and Corporate Governance Committee of the
Board of Directors;
o Revlon shall not conduct any business or enter into any
transaction or series of similar transactions with any
affiliate of Revlon (other than Revlon's subsidiaries)
or a legal or beneficial owner of 10% or more of the
voting power of the voting stock of Revlon or an
affiliate of such owner (other than any transaction (i)
contemplated herein or pursuant to agreements or
arrangements entered into prior to the date hereof and
disclosed to Fidelity or (ii) specifically permitted by
the indentures pursuant to which the Notes were issued)
unless: (a) with respect to a transaction or series of
related transactions, other than the purchase or sale
of inventory in the ordinary course of business,
involving aggregate payments or other consideration in
excess of $5.0 million, such transaction or series of
related transactions has been approved by all the
Independent Directors of the Board of Directors of
Revlon, and (b) with respect to a transaction or series
of related transactions, other than the purchase or
sale of inventory in the ordinary course of business,
involving aggregate payments or other consideration in
10
excess of $20.0 million, 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 Revlon.
The shareholders agreement shall terminate at such time as
Fidelity ceases to hold at least 5% of the outstanding voting
stock of Revlon. From the date hereof, Revlon shall not enter
into any material transaction pending the appointment of the
Fidelity Appointees as set forth above.
Without the consent of Fidelity, Revlon, Inc. will not permit
Products Corporation to have outstanding aggregate borrowings
under the M&F $125 Million Loan and the M&F $65 Million Line
of Credit at any time in excess of (i) $190 million minus (ii)
the principal amount of borrowings under the M&F $125 Million
Loan and the M&F $65 Million Line of Credit exchanged for
Revlon Class A common stock in the Exchange Offer minus (iii)
the original commitment amount of the Additional Credit
Facility.
- --------------------------- --------------------------------------------------------------------------------
VI. ADDITIONAL CREDIT
FACILITY UBS or a lender under Products Corporation's bank credit
----------------- agreement shall provide $65 million of additional liquidity to
Products Corporation by becoming part of Products
Corporation's bank credit agreement or increasing such
lender's commitment thereunder, as the case may be.
--------------------------- --------------------------------------------------------------------------------
VII. PRESS RELEASE The text of any press release describing the Exchange Offers
------------- or other transactions contemplated by this Term Sheet shall be
reasonably satisfactory to Fidelity, except as required by
applicable law.
- --------------------------- --------------------------------------------------------------------------------
11
Exhibit B
---------
[Mafco Support Agreement]
Exhibit 99.1
FOR IMMEDIATE RELEASE
- ---------------------
REVLON ANNOUNCES ACTIONS TO DRAMATICALLY STRENGTHEN ITS BALANCE
SHEET AND REDUCE DEBT
Agreements Signed to Reduce Debt by $930 Million, or Approximately 50%
At Least $780 Million in Debt Reduction this Quarter
----------------------------------------------------
NEW YORK, February 12, 2004 - Revlon, Inc. (NYSE: REV) today announced that its
Board of Directors has approved agreements with Fidelity Management & Research
Co. (the "Institutional Investor") and MacAndrews & Forbes, the Company's
principal shareholder, which will dramatically strengthen the Company's balance
sheet and increase the liquidity and float of the Company's common stock.
As a result of the agreements reached, debt will be reduced by approximately
$930 million, or roughly 50%. The Company anticipates that at least $780 million
of debt will be eliminated during the first quarter of 2004 through a debt for
equity exchange. An additional $50 million of debt will be reduced by a rights
offering to be consummated before the end of 2004. Finally, an additional $100
million equity offering will be made, if necessary. The Company indicated that
if public participation in the debt for equity exchange offer being launched in
the first quarter of 2004 results in the exchange of more than $150 million of
debt from holders other than the Institutional Investor and MacAndrews & Forbes,
the rights offering and equity offering components will be reduced by such
amounts greater than $150 million.
The exchange offer was negotiated and agreed to with the Institutional Investor.
MacAndrews & Forbes agreed to participate on the same basis. The offer under the
same terms will be made available to all other unsecured note holders of the
Company.
MacAndrews & Forbes commitments include contributing the approximately $475
million of debt it holds in exchange for equity and backstopping an additional
$300 million of debt reduction. The backstop is reduced by debt for equity
exchanges from other bondholders and proceeds from the rights and equity
offerings. The MacAndrews & Forbes commitments, along with the $155 million debt
for equity exchange by the Institutional Investor, ensures a total debt
reduction of approximately $930 million.
Commenting on the announcement, Revlon President & Chief Executive Officer Jack
Stahl stated, "This refinancing is a crucial step in the Company's journey to
achieve long-term profitable growth. We have made significant progress to
strengthen the business over the past 18 months, and this dramatic de-leveraging
provides an important platform from which we can further build momentum. I am
delighted by the continued support of Ronald Perelman and this vote of
confidence from a large holder of our securities in the people and future of
Revlon."
Further commenting on the announcement, MacAndrews & Forbes Chairman
Ronald O. Perelman stated, "Revlon is a great American brand and one of the most
identifiable consumer imprints worldwide. Jack Stahl and his team have done a
masterful job, and I believe that Revlon is now in a position to deliver
industry-leading performance."
THE COMPONENTS OF THE DEBT REDUCTIONS MAY BE SUMMARIZED AS FOLLOWS:
MacAndrews & Forbes has agreed to exchange preferred stock and an aggregate of
approximately $475 million of indebtedness of Revlon for shares of Class A
common stock of Revlon, par value $0.01 per share. The Institutional Investor
has also agreed to exchange an aggregate of $155 million of indebtedness of
Revlon for shares of Revlon Class A common stock. The Company intends to
commence exchange offers to holders of any and all of the outstanding 8 1/8%
Senior Notes due 2006, 9% Senior Notes due 2006 and 8 5/8% Senior Subordinated
Notes due 2008 of Revlon's wholly owned subsidiary, Revlon Consumer Products
Corporation ("RCPC"), each of which is fully and unconditionally guaranteed by
Revlon, on the same terms as agreed with the Institutional Investor and
MacAndrews & Forbes.
The Institutional Investor and MacAndrews & Forbes have agreed to tender for
exchange in the exchange offers an aggregate of approximately $440 million
outstanding 8 1/8% Senior Notes, 9% Senior Notes and 8 5/8% Senior Subordinated
Notes for shares of Revlon Class A common stock, at a ratio of 400 shares for
each $1,000 principal amount of 8 1/8% Senior Notes or 9% Senior Notes tendered
for exchange or 300 shares for each $1,000 principal amount of 8 5/8% Senior
Subordinated Notes tendered for exchange. The Institutional Investor may elect
to receive cash or additional shares of Revlon Class A common stock in respect
of accrued interest payable on the notes tendered by it.
In the exchange offers for the outstanding 8 1/8% Senior Notes, 9% Senior Notes
and 8 5/8% Senior Subordinated Notes, other holders will be offered the
opportunity to exchange their notes for (i) shares of Revlon Class A common
stock at the same ratios applicable to the Institutional Investor and MacAndrews
& Forbes in the agreements, or (ii) cash up to a maximum of $150 million
aggregate principal amount of tendered notes, subject to pro-ration. Notes
tendered for cash would receive $830 per $1,000 face amount for the 8 1/8%
Senior Notes, $800 per $1,000 face amount for the 9% Senior Notes and $620 per
$1,000 face amount for the 8 5/8% Senior Subordinated Notes. Accrued interest
will also be paid
on tendered notes in cash or additional shares of Revlon Class A common stock,
at the holder's option.
The maximum principal amount of notes that may be exchanged for cash is $150
million reduced by the aggregate principal amount of any notes tendered and
exchanged in the exchange offers for shares of Revlon Class A common stock in
excess of the amounts the Institutional Investor and MacAndrews & Forbes
currently hold and have agreed to tender for exchange. The exchange offers are
expected to commence on or before March 1, 2004.
To the extent that $150 million aggregate principal amount of notes, other than
the notes to be tendered by the Institutional Investor and MacAndrews & Forbes,
are not tendered in the exchange offers, MacAndrews & Forbes has agreed to
subscribe for additional shares of Revlon Class A common stock at a purchase
price of $2.50 per share, with the proceeds of such investment to be used to
repay RCPC's indebtedness. MacAndrews & Forbes has also agreed to subscribe for
additional shares of Revlon Class A common stock in an aggregate subscription
amount equal to the amount of cash required to be paid by Revlon in exchange for
notes which are tendered for cash, excluding cash payable with respect to
accrued interest.
If as a result of these transactions MacAndrews & Forbes makes an investment in
Revlon Class A common stock for cash, the other shareholders of record of Revlon
as of the date prior to such investment will be provided the opportunity to
subscribe for Revlon Class A common stock at the same $2.50 subscription price.
In addition to the exchange offers which will reduce indebtedness by an
aggregate of approximately $780 million, the Company's plan also includes
further rights and equity offerings in such amounts as to ensure that the total
debt reduction will be at least $830 million by the end of 2004 and at least
$930 million by March 2006. The terms of the rights offering to be consummated
prior to December 31, 2004 and any other equity offerings to be undertaken in
connection with the refinancing plan, including the subscription prices will be
determined by the Board of Directors at the appropriate times.
Included in the obligations to be exchanged for Revlon Class A common stock are
any and all outstanding amounts owing to MacAndrews & Forbes, as of the closing
date of the exchange offers, under the RCPC $100 million term loan, $125 million
term loan, $65 million line of credit and certain subordinated promissory notes
payable to MacAndrews & Forbes. Each $1,000 principal amount of indebtedness
outstanding under the $100 million term loan, $125 million term loan and the $65
million line of credit will be exchanged for 400 shares of Revlon Class A common
stock and each $1,000 principal amount of indebtedness outstanding under
subordinated promissory notes will be exchanged for 300 shares of Revlon Class A
common stock. MacAndrews & Forbes, which beneficially owns 100% of Revlon
outstanding shares of Revlon's Series A preferred stock, having an aggregate
liquidation preference of $54.6 million, and 100% of
the outstanding Series B convertible preferred stock, has also agreed to
exchange its shares of Revlon's Series A preferred stock for 160 shares of
Revlon Class A common stock per $1000 liquidation preference and to convert its
shares of Series B convertible preferred stock into an aggregate of 433,333
shares of Revlon Class A common stock.
MacAndrews & Forbes, Revlon's majority stockholder, has agreed to act by written
consent to approve the refinancing transactions discussed above to the extent
that such approval is required, including the approval of the issuance of the
necessary additional shares of Revlon Class A common stock as consideration in
the exchange offers and the transactions contemplated by the agreements with the
Institutional Investor and MacAndrews & Forbes. The Board of Directors has fixed
February 17, 2004 as the record date for the determination of stockholders
entitled to notice of the action by written consent.
The decision to enter into the transactions described above follows the
announcement in December 2003 that the Board of Directors had authorized
management to begin exploring various alternatives to strengthen the Company's
balance sheet and increase equity.
The Company currently expects to file an Information Statement with the SEC and
mail exchange offer materials to note holders by March 1, 2004. The Company
indicated that certain aspects of the refinancing may be subject to Board of
Director, stockholder, lender, and regulatory approvals.
The securities mentioned in this press release have not been registered under
the Securities Act of 1933, as amended, and may not be offered or sold in the
United States except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and applicable
state securities laws. This press release shall not constitute an offer to sell
or the solicitation of an offer to buy any securities, nor shall there be any
sale of securities mentioned in this press release in any state in which such
offer, solicitation or sale would be unlawful prior to the registration or
qualification under the securities laws of any such state.
INVESTOR RELATIONS CONTACT FOR REVLON:
MARIA A. SCEPPAGUERCIO
(212) 527-5230
MEDIA CONTACTS:
CATHERINE FISHER
REVLON, INC.
(212) 527-5727
FORWARD-LOOKING STATEMENTS
--------------------------
Statements in this press release which are not historical facts, including
statements about the Company's plans, strategies, beliefs and expectations, are
forward-looking and subject to the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. Forward-looking statements speak only
as of the date they are made, and, except for the Company's ongoing obligations
under the U.S. federal securities laws, the Company undertakes no obligation to
publicly update any forward-looking statement, whether as a result of new
information, future events or otherwise. Such forward-looking statements
include, without limitation, the Company's expectations and estimates about
future events; and the Company's estimates regarding the consummation of the
refinancing transactions and the targeted debt reduction amounts and the timing
thereof, as well as the impact of such transactions on the Company's future
financial performance. Actual results may differ materially from such
forward-looking statements for a number of reasons, including those set forth in
the Company's filings with the Securities and Exchange Commission, including the
Company's Annual Report on Form 10-K and Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K filed with the SEC (which may be viewed on the SEC's
website at http://sec.gov or on the Company's website at
http://www.revloninc.com), as well as reasons including difficulties, delays,
unexpected costs or the inability of the Company to achieve its planned debt
reduction and refinancing transactions or to achieve the anticipated financial
performance as a result of such transactions. Factors other than those listed
above could also cause the Company's results to differ materially from expected
results.
