Exhibit 4.37
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of July 6, 2004 (this
"First Supplemental Indenture"), among REVLON CONSUMER PRODUCTS CORPORATION, a
Delaware corporation (the "Company"), the guarantors identified on the
signature pages hereto (the "Guarantors") and WILMINGTON TRUST COMPANY, as
trustee under the indenture referred to herein (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company, the Guarantors and the Trustee have
heretofore executed and delivered an indenture (the "Indenture"), dated as of
November 26, 2001, in respect of the 12% Senior Secured Notes due 2005 (the
"Securities") pursuant to which the Company issued $363,000,000 aggregate
principal amount of the Securities;
WHEREAS, on February 24, 2003, the Company, the Guarantors
and the Trustee executed and delivered the Subsidiary Supplemental Indenture,
whereby Revlon Development Corp. provided an Indenture Guarantee (as defined
in the Indenture) as set forth in Article X of the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that the
Company, the Guarantors and the Trustee may, with certain exceptions, amend
the Indenture, the Securities or any other Indenture Document with the written
consent of the Holders of at least a majority in Principal amount of the
Outstanding Securities;
WHEREAS, Section 9.02(b) of the Indenture provides that
except in certain circumstances, without the consent of Holders of at least
66 2/3% of the outstanding Principal amount of the Securities (the "Required
Consents"), an amendment may not release any Guarantor from its obligation
under its Indenture Guarantee, change any Indenture Guarantee in any manner
that adversely affects the rights of any Security holder under such Indenture
Guarantee in any material respect or release any Collateral from the Liens of
the Security Documents;
WHEREAS, on April 29, 2004, the Company, the Guarantors and
the Trustee, upon the receipt of the Required Consents in the tender offer and
consent solicitation commenced on April 16, 2004 and withdrawn on May 13, 2004
(the "Withdrawal"), entered into a supplemental indenture (the "April
Supplemental Indenture"), which, as a result of the Withdrawal, did not become
operative and the Indenture, in its then current form, remained in full force
and effect;
WHEREAS, the Company has distributed an Offer to Purchase
for Cash and Consent Solicitation, dated June 22, 2004 (the "Offer to
Purchase"), and accompanying letter of transmittal and consent (the "Letter of
Transmittal") to the Holders of the Securities in connection with certain
proposed amendments to the Indenture as described in the Offer to Purchase
(the "Proposed Amendments") and the release (the "Release") of (i) each
Guarantor from its obligations under its Indenture Guarantee, and (ii) all
Collateral from all liens created by the Second Lien Documents (as defined in
the Collateral Agency Agreement); and
WHEREAS, the Holders of at least 66 2/3% of the outstanding
Principal amount of the Securities have approved the Proposed Amendments and
the Release; and
WHEREAS, the execution and delivery of this First
Supplemental Indenture have been duly authorized by all necessary corporate
action on the part of the Company and the Guarantors and all conditions and
requirements necessary to make this instrument a valid and binding agreement
have been duly performed and complied with;
NOW THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Company, the Guarantors and the Trustee mutually
covenant and agree, for the equal and ratable benefit of the Holders of the
Securities, as follows:
ARTICLE I - AMENDMENTS
Section 1.1. Amendments to the Indenture and Securities.
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(a) The following Sections and Articles of the Indenture, and any
corresponding provisions in the Securities, are hereby deleted in their
entirety and replaced with "Intentionally Omitted.":
Existing Section/Article Number Caption
- ------------------------------- -------
Section 4.02................... SEC Reports
Section 4.03................... Limitation on Debt
Section 4.04................... Limitation Liens
Section 4.05................... Limitation on Restricted Payments
Section 4.06................... Limitation on Restrictions on Distributions
from Subsidiaries
Section 4.07................... Limitation on Sales of Assets and
Subsidiary Stock
Section 4.08................... Limitations on Transactions with Affiliates
Section 4.09................... Change of Control
Section 4.10(a) ............... Additional Guarantees; Releases of Guarantors
Section 4.12................... Additional Security Documents
Article X...................... Guarantees
Article XI..................... Security Arrangements
(b) Paragraphs (a)(iii), (a)(iv) and (c) of Section 5.01
of the Indenture are hereby deleted and replaced with "Intentionally Omitted."
(c) The references to "Parent Guarantor" in Sections 6.01 (6),
(7), (8) and (9) of the Indenture are hereby deleted.
(d) Any definitions used exclusively in the provisions of the
Indenture or Securities that are deleted pursuant to Paragraphs (a) and (b) of
this Section 1.1, and any definitions used exclusively within such
definitions, are hereby deleted in their entirety from the Indenture and the
Securities, and all references in the Indenture and the Securities to
paragraphs, Sections, Articles or other terms or provisions of the Indenture
referred to in Section 1.1(a) above or that have been otherwise deleted
pursuant to this First Supplemental Indenture are hereby deleted in their
entirety.
ARTICLE II - MISCELLANEOUS
Section 2.1. Effect of Supplemental Indenture. From and after the
Amendment Operative Date (as defined below), the Indenture shall be amended
and 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 2.2. Indenture Remains in Full Force and Effect. Except as
amended and supplemented by this First Supplemental Indenture, all provisions
in the Indenture shall remain in full force and effect.
Section 2.3. References to Supplemental Indenture. Any and all
notices, requests, certificates and other instruments executed and delivered
after the execution and delivery of this First Supplemental Indenture may
refer to the Indenture without making specific reference to this Supplemental
Indenture, but nevertheless all such references shall include this
Supplemental Indenture unless the context requires otherwise.
Section 2.4. 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 2.5. 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 2.6. Terms Defined in the Indenture. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 2.7. 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.
Section 2.8. 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 any
benefit of any legal or equitable right, remedy or claim under the Indenture,
this First Supplemental Indenture or the Securities.
Section 2.9. Successors. All agreements of the Company and the
Guarantors in this First Supplemental Indenture shall bind their respective
successors. All agreements of the Trustee in this First Supplemental Indenture
shall bind its successors.
Section 2.10. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company and the
Guarantors and the Trustee assumes no responsibility for their correctness.
Section 2.11. 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 2.12. 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 2.13. 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.
Section 2.14. Acknowledgement of Release of Collateral. The Trustee
hereby acknowledges that upon the obtaining of the Required Consents by the
Company (i) the applicable conditions for the release of each Guarantor from
its obligations under its Indenture Guarantee set forth in Section 9.02(b) of
the Indenture have been satisfied, (ii) the applicable conditions for the
release of all Collateral from the Liens created by the Second Lien Documents
(as defined in the Collateral Agency Agreement) set forth in Sections 9.02(b)
and 11.02 of the Indenture and Section 8.05(a)(ii)(y) of the Collateral Agency
Agreement have been satisfied, (iii) all of the Liens created by the Second
Lien Documents are automatically released without further action on the part
of the Trustee, the Holders of Securities or the Note Collateral Trustee (as
defined in the Collateral Agency Agreement), pursuant to Section 8.05(b) of
the Collateral Agency Agreement and (iv) the Second Lien Termination Date (as
defined in the Collateral Agency Agreement) has occurred, and all of the
Second Lien Documents and all obligations of the Note Collateral Agent are
automatically terminated in accordance with Section 10.6 of the Collateral
Agency Agreement. The Trustee further acknowledges that, pursuant to Section
8.05(b) of the Collateral Agency Agreement, the Note Collateral Agent is
required to execute or cause to be executed such release documents and
instruments and take such further actions as the Company may request to
evidence the release of the Collateral described above, including, without
limitation, any financing statements, endorsements, assignments or other
instruments of transfer or release.
Section 2.15. Effectiveness. This First Supplemental Indenture shall
become effective upon execution by the Company, the Guarantors and the
Trustee, provided that if the Amendment Operative Date shall not occur, the
First Supplemental Indenture shall cease to be effective. As used herein, the
"Amendment Operative Date", which is the date that the Proposed Amendments
shall be operative, shall mean the date that the Company delivers written
notice to the Trustee that the Securities validly tendered and not withdrawn
pursuant to the Offer to Purchase, have been accepted for purchase.
Section 2.16. Acknowledgement. The parties hereto acknowledge and
agree that the April Supplemental Indenture never become operative in
accordance with its terms and, therefore, the April Supplemental Indenture is
not in effect.
Section 2.17. Further Instruments and Acts. Upon request of the
Company, the Trustee will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this First Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Robert K. Kretzman
--------------------------------------
Name: Robert K. Kretzman
Title: Executive Vice President, General
Counsel and Secretary
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Steven Cimalore
--------------------------------------
Name: Steven Cimalore
Title: Vice President
ALMAY, INC.
CHARLES OF THE RITZ GROUP LTD.
CHARLES REVLON INC.
COSMETICS & MORE INC.
PPI TWO CORPORATION
REVLON CONSUMER CORP.
REVLON DEVELOPMENT CORP.
REVLON GOVERNMENT SALES, INC.
REVLON INTERNATIONAL CORPORATION
REVLON PRODUCTS CORP.
REVLON REAL ESTATE CORPORATION*
RIROS CORPORATION
RIROS GROUP INC.
RIT INC.
as Subsidiary Guarantors
By: /s/ Robert K. Kretzman
-------------------------------------
Name: Robert K. Kretzman
Title: Vice President and Secretary
* President and Secretary
REVLON, INC.,
as Parent Guarantor
By: /s/ Robert K. Kretzman
--------------------------------------
Name: Robert K. Kretzman
Title: Executive Vice President, General
Counsel and Secretary
NORTH AMERICA REVSALE INC.,
By: /s/ Michael T. Sheehan
-------------------------------------
Name: Michael T. Sheehan
Title: Vice President and Secretary