FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT")
is dated as of December 10, 1998 and entered into by and among PACIFIC FINANCE
& DEVELOPMENT CORP., a California corporation ("COMPANY"), and THE LONG-TERM
CREDIT BANK OF JAPAN, LTD., acting through its Los Angeles Agency ("BANK") and,
for purposes of Section 5 hereof, the Credit Support Parties (as defined in
Section 5 hereof) listed on the signature pages hereof, and is made with
reference to that certain Third Amended and Restated Credit Agreement dated as
of June 30, 1997, (the "CREDIT AGREEMENT"), by and between Company and Bank.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Bank desire to amend the Credit Agreement to (i)
amend certain prepayment provisions, (ii) amend certain events of default, and
(iii) make certain other amendments as set forth below, and Company and Bank
desire to terminate the PFC Pledge Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: PROVISIONS RELATING TO DEFINED TERMS
A. Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definition which shall be inserted in proper alphabetical
order:
"CASH COLLATERAL AGREEMENT" means that certain Cash Collateral
Agreement dated as of December 10, 1998 between Company and Bank.
"`LATEST SHORTFALL AMOUNT' means, as of any date of determination,
the difference between (a) the outstanding principal amount of the
Loan as of such date or, in the event that a Default or an Event of
Default shall have occurred and be continuing, the Loan Obligations
and (b) 70% of the Appraised Value (based on the latest Appraisal)."
B. Subsection 1.1 of the Credit Agreement is hereby amended by adding
immediately after the phrase "the Pledge Agreement" appearing in each of the
definitions "Operative Agreements" and "Security Instruments" the phrase ", the
Cash Collateral Agreement".
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1.2 AMENDMENTS TO SECTION 2: AMOUNT AND TERMS OF LOAN
A. Subsection 2.03(b) of the Credit Agreement is hereby amended by
deleting therefrom the phrase "the London Branch of" appearing therein.
B. Subsection 2.06(a) of the Credit Agreement is hereby amended by
deleting the text appearing therein and substituting therefor the following:
"The Company shall prepay the Loan on December 14, 1998 in the amount
of (Y)2,220,000,000 and such obligation to prepay shall be deemed to
have been satisfied upon the making of the deposit of $18,950,711.87
in accordance with subsection 3(b) of the Cash Collateral Agreement,
which deemed prepayment shall be effective as of December 14, 1998.
The Company hereby authorizes the Bank to apply the amount deposited
by the Company pursuant to the Cash Collateral Agreement to the
prepayment of the Loan in the amount of (Y)2,220,000,000 and to the
payment of accrued interest (accruing on or prior to December 14,
1998), fees and other Bank Charges and expenses to be paid on or
before such date."
C. Subsection 2.06(c) of the Credit Agreement is hereby amended by
deleting the phrase "[Intentionally Omitted]" appearing therein and
substituting therefor the following:
"Within three (3) Business Days after receiving notice from the Bank
that the Latest Shortfall Amount is greater than zero, the Company
shall prepay the Loan by an aggregate amount equal to the Latest
Shortfall Amount."
D. Subsection 2.06(f) of the Credit Agreement is hereby amended by
deleting the first sentence appearing therein and substituting therefor the
following:
"The Bank shall notify the Company that it will be obtaining
an Appraisal prior to obtaining an Appraisal and the Bank
shall deliver an Appraisal to the Company not more than 30
days after receiving the Appraisal; provided that (i) the
Bank shall not obtain more than two Appraisals per calendar
year and (ii)the Bank shall not have obtained any Appraisal
within the last 180 days.
E. Subsection 2.07(a) of the Credit Agreement is hereby amended by
(i) deleting therefrom the phrase "at its office at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xx. Xxxxxx Xxxx (or such
other account in the United States as the Bank may notify the Company in
writing)" and substituting therefor the following: "(i) in the case of Yen
payments, at its head office at 0-0, Xxxxxxxxxxxxx 0, Xxxxxxx-xx, Xxxxx 000,
Xxxxx, Reference: Pacific Finance and Development Corp. (or to such other
account in Japan as the Bank may notify the Company in writing), and (ii)
in the case of U.S. dollar payments, at its New York Branch (such payments to
be made to Chase Manhattan Bank, New York; ABA: 000000000; for the account of
The Long-Term Credit Bank of Japan, Ltd., New York Branch; Account Number:
000-0-00000; Reference: Pacific Finance and Development Corp., or to such other
account in the United States as the Bank may notify the Company in writing)"
and (ii)
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deleting the phrase "Los Angeles, California" appearing in the tenth
line thereof and substituting therefor the phrase "New York, New York, or
Tokyo, Japan, as the case may be."
1.3 AMENDMENTS TO SECTION 7: DEFAULTS
Subsection 7.01 of the Credit Agreement is hereby amended by deleting
subsections 7.01(s) and 7.01(t) in their entirety.
SECTION 2. TERMINATION OF PFC PLEDGE AGREEMENT
Subject to the terms and conditions of this Amendment, the parties
hereto agree that the PFC Pledge Agreement is terminated and is of no further
force and effect and the Bank shall send a notice to The Chase Manhattan Bank
on the First Amendment Effective Date (but only after receiving confirmation
satisfactory to it that Company has deposited with Bank cash collateral in an
amount not less than $18,950,711.87) notifying The Chase Manhattan Bank that
the Bank is terminating the PFC Pledge Agreement pursuant to the terms of this
Amendment. Company hereby acknowledges and agrees that, in the absence of
Bank's gross negligence, bad faith or willful misconduct, it releases Bank from
any claim, cause of action or liability at any time arising out of or with
respect to the PFC Pledge Agreement, this Section 2 or transactions
contemplated by this Section 2.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Sections 1 and 2 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FIRST
AMENDMENT EFFECTIVE DATE"):
A. On or before the First Amendment Effective Date, Company shall
deliver to Bank the following, each, unless otherwise noted, dated the First
Amendment Effective Date:
(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of State
of the State of California, each dated a recent date prior to the
First Amendment Effective Date;
(ii) Copies of its Bylaws, certified as of the First Amendment
Effective Date by its corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this
Amendment and the Cash Collateral Agreement, certified as of the
First Amendment Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates of its officers
executing this Amendment and the Cash Collateral Agreement; and
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(v) Executed copies of this Amendment executed by Company and
each Credit Support Party and executed copies of the Cash Collateral
Agreement executed by Company.
B. On or before the First Amendment Effective Date, Bank shall have
received from Company $18,950,711.87 for deposit pursuant to and in accordance
with Section 3 of the Cash Collateral Agreement and Bank shall have received
confirmation satisfactory to it that such amount has been deposited.
SECTION 4. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, Company represents and warrants
to Bank that the following statements are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each Obligor has all requisite
corporate power and authority to enter into this Amendment and the Cash
Collateral Agreement as applicable, and to carry out the transactions
contemplated by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "AMENDED AGREEMENT") and each of the other
Operative Agreements and the Cash Collateral Agreement, as applicable.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement and the execution,
delivery and performance of the Cash Collateral Agreement have been duly
authorized by all necessary corporate action on the part of Company and the
execution and delivery of this Amendment have been duly authorized by all
necessary corporate action on the part of each of the other Obligors.
C. NO CONFLICT. The execution and delivery by each Obligor of this
Amendment and the performance by Company of the Amended Agreement and the
execution, delivery and performance of the Cash Collateral Agreement by Company
do not and will not (i) violate any provision of any law or any governmental
rule or regulation applicable to any Obligor or any of their respective
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of any
Obligor or any of their respective Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on any Obligor or any
of their respective Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
material contractual obligation of any Obligor or any of their respective
Subsidiaries (including without limitation the New Consumer Products Credit
Agreement, the Subsidiary Guaranty and the Revlon Senior Notes), (iii) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of any Obligor or any of its Subsidiaries (other than Liens created
under any of the Operative Agreements in favor of Bank), or (iv) require any
approval of stockholders or any approval or consent of any Person under any
material contractual obligation of any Obligor or any of their respective
Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each
Obligor of this Amendment and the performance by Company of the Amended
Agreement and the execution, delivery and performance of the Cash Collateral
Agreement by Company do not and
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will not require any registration with, consent or approval of, or notice to,
or other action to, with or by, any federal, state or other governmental
authority or regulatory body.
E. BINDING OBLIGATION. This Amendment and, in the case of Company,
the Amended Agreement and the Cash Collateral Agreement have been duly executed
and delivered by each Obligor and are the legally valid and binding obligations
of each Obligor, enforceable against each Obligor in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing and
after giving effect to this Amendment, no event will result that would
constitute an Event of Default or a Potential Event of Default.
SECTION 5. ACKNOWLEDGEMENT AND CONSENT
Company is a party to the Pledge Agreement, as amended through the
First Amendment Effective Date, pursuant to which Company has created Liens in
favor of Bank on certain collateral to secure the Loan Obligations. Mortgagor
is a party to the Mortgage and the Mortgagor Acknowledgment, in each case as
amended through the First Amendment Effective Date, pursuant to which Mortgagor
has created Liens in favor of Bank on certain collateral to secure the Loan
Obligations. Revlon International is a party to the Stock Pledge Agreement, as
amended through the First Amendment Effective Date, pursuant to which Revlon
International has pledged certain collateral to Bank to secure the Loan
Obligations. Consumer Products is a party to the Consumer Products Guarantee,
as amended through the First Amendment Effective Date, pursuant to which
Consumer Products has guaranteed the Loan Obligations. Company, Revlon
International, Mortgagor and Consumer Products are collectively referred to
herein as the "CREDIT SUPPORT PARTIES," and the Mortgage, the Pledge Agreement,
the Stock Pledge Agreement, and the Consumer Products Guarantee are
collectively referred to herein as the "CREDIT SUPPORT DOCUMENTS."
Each Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all collateral
encumbered thereby will continue to guaranty or secure, as the case may be, to
the fullest extent possible the payment and performance of all "Loan
Obligations," "Guarantied Obligations" and "Secured Obligations," as the case
may be (in each case as such terms are defined in the applicable Credit Support
Document), including without limitation the payment and performance of all such
"Loan Obligations," "Guarantied Obligations" or "Secured
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Obligations," as the case may be, in respect of the Loan Obligations of Company
now or hereafter existing under or in respect of the Amended Agreement and the
Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in
the Amended Agreement and the Credit Support Documents to which it is a party
or otherwise bound are true, correct and complete in all material respects on
and as of the First Amendment Effective Date to the same extent as though made
on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
Each Credit Support Party (other than Company) acknowledges and
agrees that (i) notwithstanding the conditions to effectiveness set forth in
this Amendment, such Credit Support Party is not required by the terms of the
Credit Agreement or any other Operative Agreements to consent to the amendments
to the Credit Agreement effected pursuant to this Amendment and (ii) nothing in
the Credit Agreement, this Amendment or any other Operative Agreements shall be
deemed to require the consent of such Credit Support Party to any future
amendments to the Credit Agreement.
SECTION 6. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
OPERATIVE AGREEMENTS.
(i) On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Operative Agreements to
the "Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Operative Agreements shall remain in
full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver
of any provision of, or operate as a waiver of any right, power or
remedy of Bank under, the Credit Agreement or any of the other
Operative Agreements.
B. FEES AND EXPENSES. Company acknowledges that all costs, Bank
Charges, fees and expenses (including those described in subsection 8.04 of the
Credit Agreement) incurred by Bank and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of Company.
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C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive
effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (INCLUDING
WITHOUT LIMITATION SECTION 1646.5 OF THE CIVIL CODE OF THE STATE OF
CALIFORNIA), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Sections 1 and 2 hereof, the effectiveness of which is governed
by Section 3 hereof) shall become effective upon the execution of a counterpart
hereof by Company, Bank and each of the Credit Support Parties and receipt by
Company and Bank of written or telephonic notification of such execution and
authorization of delivery thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
PACIFIC FINANCE & DEVELOPMENT CORP.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Title: Vice President and Secretary
------------------------------------
REVLON CONSUMER PRODUCTS CORPORATION,
(for purposes of Section 5 only) as a
Credit Support Party
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Title: Senior Vice President, Deputy
General Counsel and Secretary
------------------------------------
REVLON INTERNATIONAL CORPORATION,
(for purposes of Section 5 only) as a
Credit Support Party
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Title: Vice President and Secretary
------------------------------------
REVLON REAL ESTATE KABUSHIKI KAISHA,
(for purposes of Section 5 only) as a
Credit Support Party
By: /s/ H. Xxxxxxx Xxxxx
---------------------------------------
Title: Director
------------------------------------
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
acting through its Los Angeles Agency
By: /s/ Xxxxxx Xxxx
---------------------------------------
Title: Deputy General Manager
------------------------------------
