Exhibit
4.1
$840,000,000
TERM LOAN AGREEMENT
Dated
as of December
20, 2006
among
REVLON CONSUMER PRODUCTS CORPORATION
as Borrower
and
THE LENDERS PARTY
HERETO
and
CITICORP USA, INC.
as
Administrative Agent
and Collateral Agent
and
JPMORGAN CHASE BANK,
N.A.
as Syndication Agent
*
* *
CITIGROUP GLOBAL MARKETS INC.
as Sole Lead Arranger
and Sole Bookrunner
WEIL, GOTSHAL & XXXXXX LLP
000 XXXXX XXXXXX
XXX
XXXX, XXX XXXX 00000-0000
TABLE OF CONTENTS
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PAGE
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Article I
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DEFINITIONS
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1
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Section 1.1
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Defined Terms
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1
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Section 1.2
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Other Definitional
Provisions
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32
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Article II
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AMOUNTS AND TERMS OF TERM LOAN
COMMITMENTS
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33
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Section 2.1
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Term Loan Commitments
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33
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Section 2.2
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Obligations of the Company
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33
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Section 2.3
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Procedure for Borrowing Term
Loans
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34
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Section 2.4
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Amortization of Term Loans
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34
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Section 2.5
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Use of Proceeds of Term
Loans
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35
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Section 2.6
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Term Facility Increase
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35
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Article III
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[Intentionally Omitted.]
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37
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Article IV
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[Intentionally Omitted.]
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37
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Article V
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[Intentionally Omitted.]
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37
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Article VI
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[Intentionally Omitted.]
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37
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Article VII
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PROVISIONS RELATING TO CERTAIN
EXTENSIONS OF CREDIT; FEES AND PAYMENT
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37
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Section 7.1
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[Intentionally Omitted.]
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37
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Section 7.2
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Optional Prepayments
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37
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Section 7.3
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Mandatory Prepayments
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37
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Section 7.4
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Application of Payments
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39
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Section 7.5
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Interest Rate and Payment Dates;
Risk Participation Fees
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39
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Section 7.6
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[Intentionally Omitted.]
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39
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Section 7.7
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Conversion Options, Minimum
Tranches and Maximum Interest Periods
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39
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Section 7.8
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Inability to Determine Interest
Rate
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40
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Section 7.9
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Illegality
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41
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Section 7.10
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Requirements of Law; Changes of
Law
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41
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Section 7.11
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Indemnity
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43
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Section 7.12
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Taxes
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43
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Section 7.13
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[Intentionally Omitted.]
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46
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Section 7.14
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Computation of Interest and
Fees
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46
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Section 7.15
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Pro Rata Treatment and
Payments
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46
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i
TABLE OF CONTENTS
(continued)
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PAGE
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Article VIII
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REPRESENTATIONS AND
WARRANTIES
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48
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Section 8.1
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Corporate Existence
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48
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Section 8.2
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Corporate Power
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48
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Section 8.3
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No Legal Bar to Loans
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49
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Section 8.4
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No Material Litigation
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49
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Section 8.5
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No Default
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49
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Section 8.6
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Ownership of Properties;
Liens
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50
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Section 8.7
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Taxes
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50
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Section 8.8
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ERISA
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50
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Section 8.9
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Financial Condition
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51
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Section 8.10
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No Change
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51
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Section 8.11
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Federal Regulations
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51
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Section 8.12
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Investment Company Act;
PUHCA
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51
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Section 8.13
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Company Information; Matters
Relating to Subsidiaries
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52
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Section 8.14
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Mortgages
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52
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Section 8.15
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Solvency
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52
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Section 8.16
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Environmental Matters
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52
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Section 8.17
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Models
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53
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Section 8.18
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Disclosure
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54
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Section 8.19
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Senior Indebtedness
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54
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Section 8.20
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Regulation H
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54
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Section 8.21
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Affiliate Obligations
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54
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Section 8.22
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Indebtedness Owing to
Affiliates
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54
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Article IX
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CONDITIONS PRECEDENT
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54
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Section 9.1
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Conditions to Extensions of
Credit
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54
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Section 9.2
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Conditions to Each Term Facility
Increase
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58
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Article X
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AFFIRMATIVE COVENANTS
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59
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Section 10.1
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Financial Statements
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59
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Section 10.2
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Certificates; Other
Information
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60
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Section 10.3
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Payment of Obligations
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61
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Section 10.4
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Conduct of Business and
Maintenance of Existence
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61
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ii
TABLE OF CONTENTS
(continued)
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PAGE
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Section 10.5
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Maintenance of Property;
Insurance
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61
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Section 10.6
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Inspection of Property; Books and
Records; Discussions
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62
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Section 10.7
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Notices
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62
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Section 10.8
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Maintenance of Corporate
Identity
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63
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Section 10.9
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Environmental Laws
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63
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Section 10.10
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Additional Guaranties
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63
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Section 10.11
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Additional Stock Pledges
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64
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Section 10.12
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Additional Collateral
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65
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Section 10.13
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Asset Transfers
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65
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Section 10.14
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Intellectual Property
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66
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Section 10.15
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Additional Mortgages
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68
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Section 10.16
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Post-Closing Matters
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68
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Section 10.17
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[Intentionally Omitted.]
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68
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Section 10.18
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Tax Reporting
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68
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Section 10.19
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Control Accounts; Approved Deposit
Accounts
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68
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Article XI
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NEGATIVE COVENANTS
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69
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Section 11.1
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Financial Covenant
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69
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Section 11.2
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Indebtedness
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69
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Section 11.3
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Limitation on Liens
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73
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Section 11.4
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Limitation on Contingent
Obligations
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75
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Section 11.5
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Limitation on Fundamental
Changes
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76
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Section 11.6
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Limitation on Sale of
Assets
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76
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Section 11.7
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Limitation on Restricted
Payments
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77
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Section 11.8
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Limitation on Investments
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78
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Section 11.9
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Limitation on Payments on Account
of Debt; Synthetic Purchase Agreements
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81
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Section 11.10
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Limitation on Transactions with
Affiliates
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82
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Section 11.11
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Hazardous Materials
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82
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Section 11.12
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Accounting Changes
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82
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Section 11.13
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Limitation on Negative Pledge
Clauses
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82
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Section 11.14
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Amendment of Company Tax Sharing
Agreement
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83
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Section 11.15
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Limitations on Restrictions on
Subsidiary Distributions
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83
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iii
TABLE OF CONTENTS
(continued)
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PAGE
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Section 11.16
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Limitation on Activities of
RPH
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83
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Section 11.17
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Prohibition on Speculative Hedging
Transactions
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83
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Article XII
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EVENTS OF DEFAULT
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83
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Section 12.1
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Events of Default
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83
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Section 12.2
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Right to Cure
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88
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Article XIII
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THE AGENTS
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88
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Section 13.1
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Authorization and Action
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88
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Section 13.2
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Agents’ Reliance, Etc
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89
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Section 13.3
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Posting of Approved Electronic
Communications
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90
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Section 13.4
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The Agents Individually
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91
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Section 13.5
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Lender Credit Decision
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91
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Section 13.6
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Indemnification
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91
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Section 13.7
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Successor Agent
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92
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Section 13.8
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Concerning the Collateral and the
Security Documents
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92
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Article XIV
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MISCELLANEOUS
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93
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Section 14.1
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Amendments and Waivers
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93
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Section 14.2
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Notices
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95
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Section 14.3
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No Waiver; Cumulative
Remedies
|
97
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Section 14.4
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Survival of Representations and
Warranties
|
97
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Section 14.5
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Payment of Expenses
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97
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Section 14.6
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Assignments and Participations;
Binding Effect
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98
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Section 14.7
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Adjustments; Set-off
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101
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Section 14.8
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[Intentionally Omitted.]
|
102
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Section 14.9
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[Intentionally Omitted.]
|
102
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Section 14.10
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Intercreditor Agreement
|
102
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Section 14.11
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Severability; Conflicts
|
102
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Section 14.12
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Counterparts;
Confidentiality
|
102
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Section 14.13
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Submission To Jurisdiction;
Waivers
|
103
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Section 14.14
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Acknowledgements
|
104
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Section 14.15
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USA PATRIOT Act
|
104
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Section 14.16
|
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Governing Law
|
104
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iv
TABLE OF CONTENTS
(continued)
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PAGE
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Section 14.17
|
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Indemnities
|
104
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Section 14.18
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Limitation of Liability
|
105
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v
TABLE OF CONTENTS
(continued)
Schedules
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Schedule I
|
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Lenders; Addresses for
Notices
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Schedule II
|
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Term Loan Commitments
|
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|
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Schedule 1.1
|
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Existing Eligible
Obligations
|
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|
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Schedule 8.13(a)
|
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Company Information
|
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Schedule 8.13(b)
|
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Subsidiaries of the Company;
Subsidiaries Scheduled for Dissolution
|
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Schedule 8.16
|
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Environmental Matters
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Schedule 9.1(d)
|
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Mortgages
|
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Schedule 9.1(h)(iv)
|
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Domestic Local Counsel
|
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Schedule 10.16
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Post-Closing Matters
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Schedule 11.3
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Liens
|
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Schedule 11.4
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Contingent Obligations
|
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Schedule 11.6
|
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Disposition Assets
|
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Exhibits
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Exhibit A
|
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Form of Term Loan Note
|
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Exhibit B
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[Intentionally Omitted]
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Exhibit C
|
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[Intentionally Omitted]
|
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Exhibit D
|
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Form of Intercreditor
Agreement
|
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Exhibit E
|
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Form of Guaranty
|
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Exhibit F
|
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Form of Pledge and Security
Agreement
|
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Exhibit G
|
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Form of Mortgage
|
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Exhibit H-1
|
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Form of Notice of Borrowing
|
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Exhibit H-2
|
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[Intentionally Omitted]
|
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Exhibit H-3
|
|
[Intentionally Omitted]
|
|
|
|
Exhibit I
|
|
Form of Notice of Conversion or
Continuation
|
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Exhibit J
|
|
Form of Affiliate Subordination
Letter
|
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Exhibit K-1
|
|
Form of Opinion of Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx LLP
|
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Exhibit K-2
|
|
Form of Opinion of Executive Vice
President and General Counsel of the Company
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Exhibit K-3
|
|
Form of Opinion of Weil, Gotshal
& Xxxxxx LLP
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Exhibit L
|
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Form of Assignment and
Acceptance
|
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Exhibit M
|
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Form of Compliance
Certificate
|
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Exhibit N
|
|
Form of Capital Contribution
Note
|
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Exhibit O
|
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[Intentionally Omitted]
|
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Exhibit P
|
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[Intentionally Omitted]
|
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|
|
Exhibit Q
|
|
Form of U.S. Tax Compliance
Certificate
|
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Exhibit R
|
|
Form of Solvency
Certificate
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vi
TERM LOAN AGREEMENT, dated as of December 20, 2006, among Revlon
Consumer Products Corporation, a Delaware corporation (the
“Company”), the Lenders (as defined below), and Citicorp
USA, Inc. (“Citicorp”), as administrative agent for the
Lenders (in such capacity, the “Administrative Agent”) and
as collateral agent for the Secured Parties (as defined below) (in such
capacity, the “Collateral Agent”).
WITNESSETH:
WHEREAS, the Company has requested that the Lenders make
available for the purposes specified in this Agreement a senior secured term
loan facility; and
WHEREAS, the Lenders are willing to make available to the
Company such term loan facility upon the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the
premises and the covenants and agreements contained herein, the parties hereto
hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Defined
Terms. As
used in this Agreement, the following terms shall have the following respective
meanings (such definitions to be equally applicable to the singular and plural
forms thereof):
“Act”
shall have the meaning assigned to such term in Section
9.1(q).
“Administrative
Agent”
shall have the meaning assigned to such term in the preamble hereto, and shall
include any successor “Administrative
Agent”
pursuant to
Section 13.7.
“Affected
Loan”
shall have the meaning assigned to such term in Section
7.8(a).
“Affiliate”
of any Person shall mean any other Person (other than a Subsidiary or a
Permitted Joint Venture) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, the first Person. For purposes
of this definition, a Person shall be deemed to be “controlled
by”
another Person if such other Person possesses, directly or indirectly, power
either to (a) vote 12.5% or more of the securities having ordinary voting power
for the election of directors of such first Person or (b) direct or cause the
direction of the management and policies of such first Person whether by
contract or otherwise.
“Affiliate
Subordination Letter”
shall mean the collective reference to each Letter Agreement, to be executed
and delivered pursuant hereto, in each case by each Affiliate of the Company
(other than officers and directors of the Company) which from time to time
holds any Indebtedness of the Company or any of its Subsidiaries (other than
(i) trade credit in the ordinary course of business, (ii) any Capital
Contribution Note, (iii) any M&F Loan, (iv) any Indebtedness permitted
under Section
11.2(o) or (v)
any Indebtedness of the Company or any of its Subsidiaries of a class that is
publicly held or issued pursuant to a Rule 144A offering, including
Indebtedness issued pursuant to an
Indenture), substantially in the form of Exhibit
J, as the
same may be amended, supplemented or otherwise modified from time to
time.
“Agent
Affiliates”
shall have the meaning assigned to such term in Section
13.3(c).
“Agents”
shall mean the collective reference to the Administrative Agent and the
Collateral Agent; individually, an “Agent”.
“Aggregate
Term Loan Commitment”
shall mean, at any time, the aggregate amount of the Term Loan Commitments of
all Lenders then in effect. The original amount of the Aggregate Term Loan
Commitment is $840,000,000.
“Agreement”
shall mean this Term Loan Agreement, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.
“Alternate
Base Rate”
for any day shall mean a rate per annum (rounded upwards, if necessary, to the
next 1/16th of 1%) equal to the greater of (a) the rate of interest announced
publicly by Citibank, N.A. in New York, New York, from time to time, as its
base rate and (b) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%.
“Alternate
Base Rate Loans”
shall mean the Term Loans hereunder at such time as such Term Loans are made
and/or being maintained at a rate of interest based upon the Alternate Base
Rate.
“Annual
Net Proceeds”
shall have the meaning assigned to such term in Section
7.3(b).
“Applicable
Margin”
shall mean with respect to Term Loans maintained as (i) Alternate Base Rate
Loans, a rate equal to 3.00% per
annum and
(ii) Eurodollar Loans, a rate equal to 4.00% per
annum.
“Approved
Deposit Account”
shall mean a Deposit Account that is the subject of an effective Deposit
Account Control Agreement and that is maintained by any Loan Party with a
Deposit Account Bank. “Approved
Deposit Account”
includes all monies on deposit in a Deposit Account and all certificates and
instruments, if any, representing or evidencing such Deposit
Account.
“Approved
Electronic Communications”
shall mean each notice, demand, communication, information, document and other
material that any Loan Party is obligated to, or otherwise chooses to, provide
to the Administrative Agent pursuant to any Loan Document or the transactions
contemplated therein, including (a) any supplement to the Guaranty, any joinder
to the Pledge and Security Agreement and any other written Contractual
Obligation delivered or required to be delivered in respect of any Loan
Document or the transactions contemplated therein and (b) any financial and
other report, notice, request, certificate and other information material;
provided,
however, that,
“Approved
Electronic Communication”
shall exclude (x) any Notice of Borrowing, Notice of Conversion or
Continuation, and any other notice, demand, communication, information,
document and other material relating to a request for a new, or a conversion of
an existing, Loan, (ii) any notice pursuant to Section
7.2 or
7.3 and any
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other
notice relating to the payment of any principal or other amount due under any
Loan Document prior to the scheduled date therefor, (iii) any notice of any
Default or Event of Default (including any Notice of Actionable Default) and
(iv) any notice, demand, communication, information, document and other
material required to be delivered to satisfy any of the conditions set forth in
Article IX or any condition precedent to the effectiveness of this
Agreement.
“Approved
Electronic Platform”
shall have the meaning specified in Section
13.3(a).
“Approved
Securities Intermediary”
shall mean a Securities Intermediary or Commodity Intermediary selected by a
Loan Party and reasonably satisfactory to the Designated Administrative
Agent.
“Arranger”
shall mean Citigroup Global Markets Inc., as sole lead arranger and sole
bookrunner.
“Assignment
and Acceptance”
shall mean an Assignment and Acceptance, substantially in the form of
Exhibit
L.
“Bankruptcy
Code”
shall mean title 11, United States Code.
“benefitted
Lender”
shall have the meaning assigned to such term in Section
14.7(b).
“Business
Day”
shall mean a day other than a Saturday, Sunday or other day on which commercial
banks in New York, New York are authorized or required by law to
close.
“Capital
Contribution”
shall mean the receipt by the Company of cash from a source outside of the
Company and its Subsidiaries which is either (a) recorded as an addition to the
Company’s stockholders’ equity in accordance with GAAP (whether or
not in exchange for issuance of equity of the Company to Revlon) or (b) subject
to the terms and conditions of, and evidenced by, a Capital Contribution
Note.
“Capital
Contribution Note”
shall mean any promissory note, substantially in the form of Exhibit
N, made
by the Company in favor of any Affiliate thereof evidencing Indebtedness
permitted pursuant to Section
11.2(e) of this
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof.
“Capital
Expenditures”
shall mean, for any period, the amount equal to all expenditures (by the
expenditure of cash or the incurrence of Indebtedness) made by the Company and
its Subsidiaries during such period in respect of the purchase or other
acquisition or improvement of any fixed or capital asset and any other amounts
which would, in accordance with GAAP, be set forth as capital expenditures or
purchases of permanent displays on the consolidated statement of cash flows of
the Company and its Subsidiaries for such period.
“Capital
Lease”
means, with respect to any Person, any lease of, or other arrangement conveying
the right to use, property by such Person as lessee that would be
3
accounted
for as a capital lease on a balance sheet of such Person prepared in conformity
with GAAP.
“Capital
Lease Obligations”
means, with respect to any Person, the capitalized amount of all consolidated
obligations of such Person or any of its Subsidiaries under Capital
Leases.
“Cash
Collateral Account”
shall mean any Deposit Account or Securities Account that is (a) established as
a “Cash
Collateral Account”
for the purposes expressly contemplated under the Loan Documents by any Agent
from time to time to receive cash and Cash Equivalents (or purchase cash or
Cash Equivalents with funds received) from the Company or its Subsidiaries or
Persons acting on their behalf pursuant to the Loan Documents, (b) with such
depositaries and securities intermediaries as the Administrative Agent may
determine in its sole discretion exercised reasonably, (c) in the name of the
Administrative Agent (although such account may also have words referring to
the Company and the account’s purpose), (d) under the control of the
Collateral Agent and (e) in the case of a Securities Account, with respect to
which the Collateral Agent, at the direction of the Multi-Currency
Administrative Agent or Administrative Agent, as the case may be, shall be the
Entitlement Holder and the only Person authorized to give Entitlement Orders
with respect thereto; provided,
however, that
no Cash Collateral Account shall be established in the Commonwealth of
Australia.
“Cash
Concentration Account”
shall mean the deposit account no. 3057-3774 at Citibank, N.A. designated the
“Citicorp
USA, Inc. F/A/O Revlon Consumer Products Corporation Concentration
Account”,
which account shall be under the Collateral Agent’s control.
“Cash
Equivalents”
shall mean (a) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed or insured by the United States federal
government or any agency thereof, (b) certificates of deposit and eurodollar
time deposits with maturities of one year or less from the date of acquisition
and overnight bank deposits of any Lender or any Multi-Currency Lender or of
any commercial bank having capital and surplus in excess of $500,000,000, (c)
repurchase obligations of any Lender or any Multi-Currency Lender or of any
commercial bank satisfying the requirements of clause
(b) of this
definition, having a term of not more than 30 days with respect to securities
issued or fully guaranteed or insured by the United States federal government,
(d) commercial paper of a domestic issuer rated at least A-2 by S&P or P-2
by Xxxxx’x, (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States or by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Xxxxx’x, (f) securities with
maturities of one year or less from the date of acquisition backed by standby
letters of credit issued by any Lender or any Multi-Currency Lender or any
commercial bank satisfying the requirements of clause
(b) of this
definition, (g) shares of money market mutual or similar funds having assets in
excess of $250,000,000 and which invest exclusively in assets satisfying the
requirements of clause
(a) of this
definition or (h) shares of money market mutual or similar funds having assets
in excess of $500,000,000 and which invest exclusively in assets satisfying the
requirements of clauses
(b) through
(f) of this
definition.
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“Citicorp”
shall have the meaning specified in the preamble to this
Agreement.
“Closing
Date”
shall have the meaning assigned to such term in Section
9.1.
“Code”
shall mean the Internal Revenue Code of 1986, as hereafter amended from time to
time.
“Collateral”
shall mean all property and interests in property and proceeds thereof now
owned or hereafter acquired by any Loan Party in or upon which a Lien is
granted under any Security Document.
“Collateral
Agent”
shall have the meaning specified in the preamble to this Agreement, and shall
include any successor “Collateral
Agent”
pursuant to Section
13.7.
“Commitment
Percentage”
shall mean, at any date with respect to each Lender, the percentage which the
Term Loan Commitment of such Lender constitutes of the Aggregate Term Loan
Commitment (or, at any time after the Closing Date, the percentage which the
aggregate outstanding principal amount of such Lender’s Term Loans at such
date constitutes of the aggregate outstanding principal amount of Term Loans of
all Lenders at such date).
“Commodity
Account”
shall have the meaning assigned to such term in the UCC.
“Commodity
Intermediary”
shall have the meaning assigned to such term in the UCC.
“Commonly
Controlled Entity”
shall mean an entity, whether or not incorporated, which is under common
control with the Company within the meaning of Section 4001 of ERISA or is part
of a group which includes the Company and which is treated as a single employer
under Section 414 of the Code.
“Company”
shall have the meaning assigned to such term in the preamble
hereto.
“Company
Tax Sharing Agreement”
shall mean the Tax Sharing Agreement, dated as of March 26, 2004, among Revlon,
the Company and certain of its Subsidiaries, as amended, supplemented or
otherwise modified from time to time in accordance with the provisions of
Section
11.14.
“Consolidated
Current Assets”
shall mean, with respect to any Person at any date, in accordance with GAAP,
the total consolidated current assets on a consolidated balance sheet of such
Person and its Subsidiaries less any
cash and Cash Equivalents.
“Consolidated
Current Liabilities”
shall mean, with respect to any Person at any date, in accordance with GAAP,
the total current liabilities on a consolidated balance sheet of such Person
and its Subsidiaries less any
short-term borrowings and the current portion of any long-term
Indebtedness.
“Consolidated
Net Income”
shall mean, for any period, the amount which would be set forth as net income
on a consolidated statement of operations of the Company and its Subsidiaries
determined on a consolidated basis in accordance with GAAP for such
period.
5
“Contingent
Obligation”
as to any Person shall mean any obligation of such Person guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends, letters of credit or
other obligations (“primary
obligations”)
of any other Person (the “primary
obligor”)
in any manner, whether directly or indirectly, including, without limitation,
any “keep-well”
or “make-well”
agreement, guarantee of return on equity or other obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase, sell or lease property, or to purchase or sell securities or
services, primarily for the purpose of assuring the obligee under any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the obligee
under such primary obligation against loss in respect thereof.
“Continuing
Director”
shall mean, during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Company was approved
by a vote of at least 66-2/3% of the directors of the Company then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved).
“Contractual
Obligation”
of any Person shall mean any provision of any material debt security or of any
material preferred stock or other equity interest issued by such Person or of
any material indenture, mortgage, agreement, instrument or undertaking to which
such Person is a party or by which it or any of its material property is
bound.
“Control
Account”
shall mean a Securities Account or Commodity Account that is the subject of an
effective Securities Account Control Agreement and that is maintained by any
Loan Party with an Approved Securities Intermediary. “Control
Account”
includes all Financial Assets held in a Securities Account or a Commodity
Account and all certificates and instruments, if any, representing or
evidencing the Financial Assets contained therein.
“Copyright”
shall have the meaning assigned to such term in the Pledge and Security
Agreement.
“Cross
Default”
of any Person shall mean (i) default in the payment of any amount when due
(whether at maturity or by acceleration) on any of its Indebtedness (other than
any such default in respect of any Loan) or in the payment of any matured
Contingent Obligation in respect of any Indebtedness of any other Person
(except for any such payments on account of any such Indebtedness and
Contingent Obligations in an aggregate principal amount at any one time
outstanding of up to $5,000,000 (or, with respect to any other currency, the
Equivalent thereof)), (ii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or Contingent
Obligation (except for any such Indebtedness and Contingent Obligations in an
aggregate principal amount at any one time outstanding of up to $5,000,000 (or,
with respect to any other currency, the Equivalent thereof)) or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to
6
permit
the holder or holders of such Indebtedness or beneficiary or beneficiaries of
such Contingent Obligation (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due or to be required to be redeemed or
repurchased prior to its stated maturity or such Contingent Obligation to
become payable or (iii) an “Event of Default” under and as defined in
the Existing Credit Agreement shall occur and be continuing.
“Cure
Amount”
shall have the meaning assigned to such term in Section
12.2(a).
“Cure
Right”
shall have the meaning assigned to such term in Section
12.2(a).
“Customary
Permitted Liens”
shall mean Liens permitted by clauses (a) to (e) of Section 11.3.
“Default”
shall mean any of the events specified in Section
12.1,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
“Default
Rate”
shall have the meaning assigned to such term in Section
7.5(c).
“Deposit
Account”
shall have the meaning assigned to such term in the UCC.
“Deposit
Account Bank”
shall mean a financial institution selected by a Loan Party and reasonably
satisfactory to the Designated Administrative Agent.
“Deposit
Account Control Agreement”
shall have the meaning assigned to such term in the Pledge and Security
Agreement.
“Designated
Administrative Agent”
shall mean, (i) until all Multi-Currency Payment Obligations arising under the
Existing Credit Agreement have been Fully Satisfied (as defined in the Existing
Credit Agreement), the Multi-Currency Administrative Agent and (ii) at any time
thereafter, the Administrative Agent.
“Designated
Eligible Obligations”
shall mean, at any time, each of the following that are now or hereafter
designated by the Company pursuant to Section
10.1 of the
Intercreditor Agreement (which designation shall not have been revoked by the
Company on or prior to such time thereunder) to be secured by the Collateral:
(i) working capital Indebtedness of any Foreign Subsidiary or a foreign branch
of a Domestic Subsidiary principally doing business outside of the United
States permitted under Section
11.2(d) in an
aggregate principal amount outstanding not to exceed $30,000,000 at any time
(and all obligations in respect thereof) and, without duplication, any
Contingent Obligation of the Company in respect thereof, and obligations in
respect of any refinancing or replacement of any such working capital
Indebtedness (including any such working capital indebtedness owing to Citicorp
or any of its Affiliates and guaranteed by the Company), (ii) obligations of
the Company or any of its Subsidiaries in respect of Hedging Contracts set
forth on Schedule
1.1 and
outstanding on the Closing Date, (iii) obligations
of the Company or any of its Subsidiaries in respect of Hedging Contracts
provided by a Lender or a Multi-Currency Lender, any affiliate of a Lender or a
Multi-Currency Lender or any other Person reasonably acceptable to the
Administrative Agent or the Multi-Currency Administrative Agent, as applicable,
as the administrative agent for those Secured Parties
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whose
Collateral will secure such Designated Eligible Obligations on a first priority
basis after the Closing Date, in each case, to the extent such obligations are
permitted under this Agreement, and (iv) obligations of the Company or any of
its Subsidiaries in respect of treasury, depository, overdraft and other cash
management arrangements maintained with any Lender or Multi-Currency Lender,
any Affiliate of a Lender or Multi-Currency Lender or any other Person
reasonably acceptable to the Administrative Agent or the Multi-Currency
Administrative Agent, as applicable, as the administrative agent for those
Secured Parties whose Collateral will secure such Designated Eligible
Obligations on a first priority basis after the Closing Date, in each case, the
holders of which Indebtedness or their representatives have received a copy of
the Intercreditor Agreement and the Pledge and Security Agreement from the
Company, prior to, or concurrently with, such designation.
“Disposition
Asset”
shall mean any asset, brand or Subsidiary listed on Schedule
11.6;
provided,
however, that
any such asset, brand or Subsidiary listed on Schedule
11.6 shall
cease to constitute a “Disposition
Asset”
from and after the date upon which the Company notifies the Administrative
Agent in writing that such asset, brand or Subsidiary is to cease to constitute
a “Disposition
Asset”.
“Dollars”
and “$”
shall mean dollars in lawful currency of the United States of
America.
“Domestic
Subsidiary”
shall mean each Subsidiary of the Company that is organized under the laws of a
state within the United States or the District of Columbia.
“EBITDA”
shall mean, for any period, the amount equal to:
(a) Consolidated
Net Income for such period;
(b) plus
(to the
extent deducted in the determination of Consolidated Net Income and without
duplication) the sum of (i) tax expense on account of such period, (ii)
Interest Expense (including, without limitation, fees, commissions and other
charges associated with standby letters of credit and other financing charges)
for such period, (iii) depreciation and amortization expense for such period,
(iv) any losses in respect of currency fluctuations for such period, (v) any
losses in respect of equity earnings for such period, (vi) non-cash write-offs
in respect of unamortized debt issuance costs, (vii) other non-cash charges
(excluding, however, any non-cash charge which requires an accrual of, or a
reserve for, cash disbursements at any time or could reasonably be expected to
become a cash disbursement at any time), (viii) non-cash charges taken by the
Company in respect of the issuance of Stock, Stock Equivalents or stock
appreciation rights of Revlon based on compensation to directors or employees
of the Company or its Subsidiaries for compensation or for repricing of
outstanding stock options of such directors or employees, (ix) any losses from
the Specified Dispositions, (x) any losses from asset sales outside of the
ordinary course of business permitted to be consummated under this Agreement,
(xi) non-cash goodwill or asset impairment charges for any period after
December 31, 2003, (xii) any losses resulting from the satisfaction of
Indebtedness prior to the maturity thereof in connection with the consummation
of the transactions contemplated (A) under this Agreement, (B) to occur on the
Closing Date and (C) any refinancing of Indebtedness permitted under this
Agreement, (xiii) non-recurring restructuring charges in an aggregate amount
not to exceed $10,000,000 since July 9, 2004 (specifically identified and
itemized by the Company at the time taken, whether or
8
not
characterized as a restructuring charge in accordance with GAAP), (xiv)
amortization or writeoff of fees, charges and other expenses incurred in
connection with any proposed refinancing of Indebtedness that is not
consummated, (xv) non-recurring restructuring charges recorded in the fiscal
quarters ending September 30, 2005, December 31, 2005 and March 31, 2006
(specifically identified and itemized by the Company at the time taken, whether
or not characterized as a restructuring charge in accordance with GAAP) in an
aggregate amount not to exceed the lesser of (A) $50,000,000 and (B) the
cumulative one-time charges associated with the restructuring announced by the
Company on February 1, 2006 and the non-recurring costs in the fiscal quarters
ending September 30, 2005 and December 31, 2005 associated with the launch of
the Company’s Vital Radiance brand and the re-launch of the Almay brand,
(xvi) non-recurring restructuring charges and returns charges in an aggregate
amount with respect to all charges under this clause (xvi) not to exceed
$25,000,000 since July 9, 2004 in respect of organizational realignments and
related costs and returns costs due to retail space reconfigurations and/or
product discontinuances (specifically identified and itemized by the Company at
the time taken, whether or not characterized as a non-recurring or
restructuring charge in accordance with GAAP), (xvii) non-recurring
restructuring charges, asset impairment charges, inventory write-offs and
returns costs, plus in each case related charges, in an aggregate amount with
respect to all charges under this clause (xvii) not to exceed the lesser of (A)
$75,000,000 and (B) the actual amount of such charges in connection with the
organizational changes announced by the Company on September 18, 2006, the
restructuring announced by the Company on September 25, 2006 and retail space
reconfigurations and/or product discontinuances associated with the
discontinuation of the Company’s Vital Radiance brand announced by the
Company on September 25, 2006 (in each case, specifically identified and
itemized by the Company at the time taken, whether or not characterized as a
non-recurring or restructuring charge in accordance with GAAP), (xviii)
non-recurring restructuring charges in an aggregate amount not to exceed
$20,000,000 during the term of this Agreement (specifically identified and
itemized by the Company at the time taken, whether or not characterized as a
restructuring charge in accordance with GAAP), (xix) customary costs, fees and
expenses (including prepayment premiums) incurred in connection with any
financing or refinancing transaction entered into by the Company or any of its
Subsidiaries on or after the date hereof, including, without limitation, in
connection with Amendment No. 4 to the Existing Credit Agreement, this
Agreement, the Refinancing and any equity financing, and (xx) for purposes of
determining compliance with Section
11.1 only,
the Cure Amount, if any, received by the Company for such period and permitted
to be included in EBITDA pursuant to Section
12.2;
(c) minus (to the
extent included in the determination of Consolidated Net Income and without
duplication) the sum of (i) interest income for such period, (ii) extraordinary
gains for such period, (iii) any gains in respect of currency fluctuations for
such period, (iv) any gains in respect of equity earnings for such period, (v)
any gains from Specified Dispositions, and (vi) any gains from asset sales
outside of the ordinary course of business;
provided,
however, that,
for purposes of the calculation of the Senior Secured Leverage Ratio, (x) the
EBITDA of any Person acquired, or the EBITDA attributable to any assets
acquired, by the Company or any of its Subsidiaries during the relevant
calculation period shall be included, on a pro forma basis, in the EBITDA of
the Company as if such Person or such assets had been acquired on the first day
of the calculation period and (y) the amount of reasonably identifiable and
factually supportable cost savings and synergies
9
projected
by the Company in good faith to be realized in connection with the acquisition
of any Person or assets referred to in clause (x) above as a result of
specified actions taken within 12 months of the date such acquisition is
consummated, net of the amount of actual benefits realized during such period
from such actions, as specified in a certificate executed by a Responsible
Officer and delivered to the Administrative Agent, shall be included in the
EBITDA of the Company on a pro forma basis as though such cost savings and
synergies had been realized on the first day of the calculation
period.
“Eligible
Assignee”
shall mean (a) a Lender or an Affiliate or Related Fund of any Lender, (b) a
commercial bank having total assets whose Equivalent in Dollars exceeds
$5,000,000,000, (c) a finance company, insurance company or any other financial
institution or Fund, in each case reasonably acceptable to the Administrative
Agent and regularly engaged in making, purchasing or investing in loans and
having a net worth, determined in accordance with GAAP, whose Equivalent in
Dollars exceeds $250,000,000 (or, to the extent net worth is less than such
amount, a finance company, insurance company, other financial institution or
Fund, reasonably acceptable to the Administrative Agent and the Company) or (d)
a savings and loan association or savings bank organized under the laws of the
United States or any state thereof having a net worth, determined in accordance
with GAAP, whose Equivalent in Dollars exceeds $250,000,000.
“Eligible
Insurer”
shall mean an insurance company which (a) is rated at least “A”
by A.M. Best Company, (b) has an equivalent rating from another rating agency
of internationally recognized standing or (c) otherwise is reasonably
acceptable to the Administrative Agent.
“Entitlement
Holder”
shall have the meaning assigned to such term in the UCC.
“Entitlement
Order”
shall have the meaning assigned to such term in the UCC.
“Environmental
Laws”
shall mean any and all federal, national, state, provincial, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental Authority within or outside of the United
States regulating, relating to or imposing liability or standards of conduct
concerning any hazardous or deleterious materials or the protection of the
environment, natural resources or human health and safety as it relates to
environmental protection, as now or may at any time hereafter be in effect,
including, without limitation, the Clean Water Act, also known as the Federal
Water Pollution Control Act, 33 U.S.C. § 1251 et seq., the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136
et seq., the
Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201
et seq., the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§ 9601 et seq. (as amended by the Superfund Amendment and
Reauthorization Act of 1986, Public Law 99-499, 100 Stat. 1613), the Emergency
Planning and Community Right to Know Act, 42 U.S.C. § 1101
et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et
seq., the
Safe Drinking Water Act, 42 U.S.C. § 300F et seq., the
Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., and
the Occupational Health and Safety Act, 29 U.S.C. § 651 et
seq. (but
only to the extent it regulates occupational exposure to Hazardous Materials),
together, in each case, with each amendment thereto, and the regulations
adopted and publications promulgated thereunder and all substitutions
therefor.
10
“Environmental
Liabilities and Costs”
shall mean, with respect to any Person, all liabilities, obligations,
responsibilities, Remedial Actions, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, experts and consultants
and costs of investigation and feasibility studies), fines, penalties,
sanctions and interest incurred as a result of any claim or demand by any other
Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute and whether arising under any
Environmental Law, permit, approval, authorization, license, variance,
permission, order or agreement with or required from any Governmental Authority
or other Person, in each case relating to any environmental, health or safety
condition or to any Release or threatened Release and resulting from the past,
present or future operations of, or ownership of property by, such Person or
any of its Subsidiaries.
“Equity
Offering”
shall mean each sale, transfer, issuance or other disposition (whether public
or private) by the Company or any Affiliate thereof of all or any portion of
the Stock or Stock Equivalents of Revlon or any of its Subsidiaries (other than
a Subsidiary of the Company); provided,
however, that
“Equity
Offering”
shall not include any sale, transfer, issuance or other disposition of Stock or
Stock Equivalents of the Company to Revlon so long as any proceeds of such
sale, transfer, issuance or other distribution are received by the
Company.
“Equivalent”
shall mean, at any date with respect to:
(a) an
amount of a currency other than Dollars, the amount of Dollars into which such
amount of such other currency could be converted at the spot exchange rate
quoted in The Wall Street Journal on such day (or, if such currency is not
quoted in The Wall Street Journal on such day, such other source as shall be
reasonably selected by the Administrative Agent); and
(b) an
amount of Dollars, the amount of a particular currency into which such amount
of Dollars could be converted at the spot exchange rate quoted in The Wall
Street Journal on such day (or, if such currency is not quoted in The Wall
Street Journal on such day, such other source as shall be reasonably selected
by the Administrative Agent).
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time.
“Eurocurrency
Reserve Requirements”
with respect to any Interest Period for any Eurodollar Loan shall mean the
aggregate of the rates (expressed as a decimal) of reserve requirements current
on the date two Working Days prior to the beginning of such Interest Period
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other governmental authority having jurisdiction with respect
thereto), as now and from time to time hereafter in effect, dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as “Eurocurrency liabilities” in Regulation D of such Board) required
to be maintained by a member bank of such System.
“Eurodollar
Base Rate”
shall mean with respect to each day during each Interest Period pertaining to a
Eurodollar Loan, the rate per annum determined on the basis of the
11
rate
for deposits in Dollars for a period equal to such Interest Period commencing
on the first day of such Interest Period appearing on Page 3750 of the Telerate
screen (or such other page of the Telerate as is customary for Eurodollar
deposits in Dollars) as of 11:00 A.M. (London time) two Working Days prior to
the beginning of such Interest Period. In the event that such rate does not
appear on Page 3750 (or equivalent page) of the Telerate screen, the
“Eurodollar
Base Rate”
shall be determined by reference to such other comparable publicly available
service for displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such availability, by reference to
the rate at which the Administrative Agent is offered Dollar deposits at or
about 11:00 A.M. (London time), two Working Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being conducted for delivery
on the first day of such Interest Period for the number of days comprised
therein.
“Eurodollar
Loan”
shall mean each Loan hereunder at such time as it is made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
“Eurodollar
Rate”
with respect to each Eurodollar Loan for each Interest Period shall mean the
rate per annum (rounded upwards to the nearest whole multiple of 1/100th of one
percent) equal to the following:
Eurodollar
Base
Rate
1.00
– Eurocurrency Reserve Requirements
“Event
of Default”
shall mean any of the events specified in Section
12.1;
provided,
however, that
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
“Excess
Cash Flow”
shall mean, for the Company for any period, (a) EBITDA of the Company for such
period plus (b) the
excess, if any, of the Working Capital of the Company at the beginning of such
period over the Working Capital of the Company at the end of such period
minus (c) the
sum of (without duplication) (i) scheduled, mandatory and optional cash
principal payments on the Loans and Multi-Currency Loans during such period
(but only, in the case of payment in respect of revolving loans, to the extent
that the applicable revolving commitments are permanently reduced by the amount
of such payments), (ii) scheduled and mandatory cash interest and fee payments
on the Loans and other Indebtedness of the Company and its Subsidiaries during
such period, (iii) Capital Expenditures made by the Company or any of its
Subsidiaries during such period to the extent permitted by this Agreement, (iv)
cash tax payments, (v) any cash payments made against prior restructuring and
growth plan charges in an amount not to exceed the Company’s current
reserves for such charges, (vi) the excess, if any, of the Working Capital of
the Company at the end of such period over the Working Capital of the Company
at the beginning of such period and (vii) fees, charges and other expenses
(including prepayment premiums but not interest or principal) in connection
with repurchasing, redeeming, defeasing or refinancing Indebtedness permitted
to be refinanced, redeemed, defeased or refinanced under this
Agreement.
“Existing
Credit Agreement”
shall mean (i) the Credit Agreement, dated as of July 9, 2004 among the Company
and the other borrowers party thereto, the lenders and issuing lenders party
thereto, the Term Loan Administrative Agent (as defined therein), the
Multi-Currency Administrative Agent and the Collateral Agent, as the same may
be
12
amended,
amended and restated, supplemented or otherwise modified from time to time
prior to, on or after the date hereof and (ii) if there is a refinancing of the
Multi-Currency Facility in accordance with Section
11.2(q), the
agreement providing for such refinancing Indebtedness, as the same may be
amended, amended and restated, supplemented or otherwise modified from time to
time.
“Existing
Credit Agreement Cure Amount”
means the “Cure Amount” under and as defined in the Existing Credit
Agreement.
“Existing
Senior Notes”
shall mean the notes in an aggregate principal amount not to exceed
$390,000,000 issued
by the Company pursuant to the Senior Notes Indenture, as such Senior Notes may
be amended, supplemented or otherwise modified from time to time to the extent
permitted by Section
11.9.
“Federal
Funds Effective Rate”
for any day shall mean the interest rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by
it.
“Financial
Asset”
shall have the meaning assigned to such term in the UCC.
“Foreign
Subsidiary”
shall mean any Subsidiary of the Company which is not a Domestic
Subsidiary.
“Fully
Satisfied”
or “Full
Satisfaction”
shall mean, as of any date, with respect to the Payment Obligations, that, on
or before such date, (a) the principal of and interest accrued to the date on
such Payment Obligations shall have been paid in full in cash, (b) all fees,
expenses and other amounts then due and payable which constituted Payment
Obligations shall have been paid in full in cash, and (c) the Term Loan
Commitments shall have expired or irrevocably been terminated; provided,
however, that,
on such date, none of the applicable Agents or Lenders shall have made any
claims in respect of such Payment Obligations against the Company or any
Guarantor under any provision of any of the Loan Documents that has not been
cash collateralized by an amount sufficient in the reasonable judgment of such
Agent and such Lender to secure such claim.
“Fund”
shall mean any Person (other than a natural Person) that is or will be engaged
in making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its
business.
“GAAP”
shall mean generally accepted accounting principles in the United States of
America as in effect as of the date of, and used in, the preparation of the
audited consolidated financial statements of the Company and its Subsidiaries
for the fiscal year ended December 31, 2003, except that, with respect to the
presentation of financial statements required to be furnished hereunder, GAAP
shall mean generally accepted accounting principles in the United States of
America as in effect from time to time.
“General
Intangible”
shall have the meaning assigned to such term in the UCC.
13
“Governmental
Authority”
shall mean any nation or government, any state or other political subdivision
thereof and any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government (including, without
limitation, any governmental department, commission, board, bureau, agency or
instrumentality, or other court or arbitrator, in each case whether of the
United States or foreign) and the National Association of Insurance
Commissioners.
“Guarantors”
shall mean the collective reference to the guarantors party to the Guaranty;
individually, a “Guarantor”.
“Guaranty”
shall mean the Guaranty, substantially in the form of Exhibit
E,
executed by the Guarantors, as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time.
“Hazardous
Materials”
shall mean any materials, wastes, or substances, defined, characterized or
regulated as hazardous, toxic, pollutant, contaminant, radioactive or words of
similar meaning in or under any Environmental Law, including without limitation
asbestos, Petroleum Products and material exhibiting the characteristics of
ignitability, corrosivity, reactivity or extraction procedure toxicity, as such
terms are defined in connection with hazardous materials or hazardous wastes or
hazardous or toxic substances in any Environmental Law.
“Hedging
Contracts”
shall mean all Interest Rate Agreements, foreign exchange contracts, currency
swap or option agreements, forward contracts, commodity swap, purchase or
option agreements, other commodity price hedging arrangements and all other
similar agreements or arrangements designed to alter the risks of any Person
arising from fluctuations in interest rates, currency values or commodity
prices and other financial hedge contracts (including, without limitation,
equity hedge contracts).
“Incremental
Term Loans”
shall have the meaning specified in Section
2.6.
“Indebtedness”
of a Person shall mean (a) indebtedness of such Person for borrowed money
whether short-term or long-term and whether secured or unsecured, (b)
indebtedness of such Person for the deferred purchase price of services or
property, which purchase price (i) is due twelve months or more from the date
of incurrence of the obligation in respect thereof or (ii) customarily or
actually is evidenced by a note or similar written instrument (including,
without limitation, any such indebtedness which is non-recourse to the credit
of such Person but is secured by assets of such Person), (c) Capital Lease
Obligations, (d) obligations of such Person arising under acceptance
facilities, (e) the undrawn face amount of, and unpaid reimbursement
obligations and other amounts owing in respect of, all letters of credit issued
for the account of such Person, (f) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (g) all obligations of
such Person upon which interest charges are customarily paid, (h) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (i)
obligations of such Person to purchase, redeem, retire, defease or otherwise
acquire for value any Stock or Stock Equivalents (with redeemable preferred
stock being valued at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends), (j) all executory obligations of
such Person in respect of Hedging Contracts, (k) all
14
Indebtedness of the types referred to in
clauses (a) through
(j) above
which is guaranteed directly or indirectly by such Person and (l) renewals,
extensions, refundings, deferrals, restructurings, amendments and modifications
of any such indebtedness, obligation or guarantee.
“Indentures”
shall mean the collective reference to (a) the Subordinated Notes Indenture,
(b) the Senior Notes Indenture and (c) each instrument, document and agreement
delivered in connection therewith, as each of the foregoing may be amended,
supplemented or otherwise modified from time to time to the extent permitted by
Section
11.9.
“Insolvency”
shall mean with respect to any Multiemployer Plan, the condition that such Plan
is insolvent within the meaning of such term as used in Section 4245 of
ERISA.
“Insolvent”
shall pertain to a condition of Insolvency.
“Intellectual
Property”
shall have the meaning assigned to such term (or any analogous term) in the
Pledge and Security Agreement.
“Intercreditor
Agreement”
shall mean the Amended and Restated Intercreditor and Collateral Agency
Agreement, dated as of December 20, 2006, among the Loan Parties, the
Administrative Agent, the Multi-Currency Administrative Agent and the
Collateral Agent, as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time.
“Intercompany
Investment”
shall have the meaning assigned to such term in Section
11.8(j).
“Interest
Expense”
shall mean, for any period, the amount which, in conformity with GAAP, would be
set forth opposite the caption “interest
expense”
(or any like caption) on a consolidated income statement of the Company and its
Subsidiaries for such period.
“Interest
Payment Date”
shall mean:
(a) as to
any Alternate Base Rate Loan, the last day of each March, June, September and
December, commencing on the first of such days to occur after such Alternate
Base Rate Loan is made or Eurodollar Loans are converted to Alternate Base Rate
Loans;
(b) as to
any Eurodollar Loan with an Interest Period of three months or less, the last
day of the Interest Period with respect thereto;
(c) as to
any Eurodollar Loan with an Interest Period of more than three months, the last
day of each March, June, September and December occurring during such Interest
Period, commencing on the first such day to occur after the commencement of
such Interest Period, and the last day of such Interest Period;
(d) as to
any Loan, the date of any repayment or prepayment made in respect thereof;
and
15
(e) in any
event, the Term Loan Termination Date.
“Interest
Period”
shall mean, (a) initially, with respect to any Eurodollar Loan, the period
commencing on the borrowing date or the initial date of conversion with respect
to such Loan and ending one, two, three or six months or, if available to all
applicable Lenders, nine or twelve months thereafter as selected by the
relevant Company in a notice of borrowing or conversion, as the case may be, as
provided herein and (b) thereafter, each period commencing on the last day of
the immediately preceding Interest Period applicable to such Loan and ending
one, two, three or six months or, if available to all applicable Lenders, nine
or twelve months thereafter, in any such case as selected by the relevant
Company in accordance with the provisions of Section
7.7;
provided,
however, that
all of the foregoing provisions relating to Interest Periods are subject to the
following:
(i) any
Interest Period relating to a Eurodollar Loan would otherwise end on a day
which is not a Working Day, such Interest Period shall be extended to the next
succeeding Working Day, unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Working Day;
(ii) no
Interest Period relating to any Loan shall be selected that would extend beyond
the Term Loan Termination Date; and
(iii) if any
Interest Period relating to a Eurodollar Loan begins on the last Working Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period), such Interest
Period shall end on the last Working Day of a calendar month.
“Interest
Rate Agreement”
shall mean any interest rate swap, option, cap, collar or insurance or any
other agreement or arrangement with any Lender or Multi-Currency Lender (or any
affiliate thereof) or any other bank or financial institution which is designed
to manage exposure to fluctuations in interest rates (including without
limitation any such agreement or arrangement providing for swaps of fixed rates
to floating rates), and any renewals thereof or substitutions
therefor.
“Investment”
shall mean, with respect to the Company and its Subsidiaries:
(a) the
purchase of all or substantially all of the assets or stock of one or more
Persons, or of assets which comprise any business unit of any such Persons, or
of assets, stock, bonds, notes, debentures or other securities of any Permitted
Joint Venture;
(b) the
making of any advances, loans, extensions of credit or capital contributions
to, or of any other investments (including, without limitation, the payment of
management fees and other Restricted Payments) in, Permitted Joint Ventures;
or
(c) the
incurrence of any Contingent Obligation in the nature of a guarantee of
Indebtedness of any Permitted Joint Venture.
“Investment
Consideration”
shall mean, with respect to any Investment in any Person or Permitted Joint
Venture, the sum (without duplication) of:
16
(a) the
aggregate of the purchase prices paid by the Company and its Subsidiaries for
such Investment;
(b) the
aggregate amount of the Indebtedness of such Persons or Permitted Joint
Ventures, as the case may be, paid or assumed by the Company and its
Subsidiaries in connection with such Investment;
(c) except
in the case of Investments in Permitted Joint Ventures, the aggregate amount of
Indebtedness for which such Person remains liable following such Investment;
and
(d) in the
case of Investments in Permitted Joint Ventures, (i) the aggregate of the
amount invested in such Investments (net of any loans or extensions of credit
to the extent that they have been repaid and net of any contributions of
Surplus Assets) in such Permitted Joint Ventures made by the Company and its
Subsidiaries and (ii) the aggregate amount of Contingent Obligations of the
Company and its Subsidiaries then outstanding on account of Indebtedness of
such Permitted Joint Ventures.
“Land”
of any Person shall mean all of those plots, pieces or parcels of land now
owned, leased or hereafter acquired or leased (including, in respect of the
Loan Parties, as reflected in the most recent financial statements delivered in
accordance with
Section 10.1) by
such Person.
“Lender”
shall mean each bank or other financial institution from time to time party
hereto which holds a Term Loan Commitment or a Term Loan; collectively, the
“Lenders”.
“Lien”
shall mean any mortgage, deed of trust, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other) or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, (a) any conditional sale or other title
retention agreement, (b) any financing lease having substantially the same
economic effect as any of the foregoing, (c) the filing of any financing
statement under the UCC (other than any such financing statement filed for
informational purposes only) or comparable law of any jurisdiction to evidence
any of the foregoing and (d) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities (other
than, in the case of capital stock of an issuer other than any Subsidiary of
the Company, pursuant to normal settlement terms)).
“Loan”
shall mean a Term Loan.
“Loan
Documents”
shall mean this Agreement, the Notes, the Affiliate Subordination Letters, the
Security Documents and each certificate, agreement or document executed by a
Loan Party and delivered to any Agent or any Lender in connection with or
pursuant to any of the foregoing; each, a “Loan
Document”.
“Loan
Party”
shall mean the Company and each Guarantor.
“M&F”
shall mean MacAndrews & Forbes Inc., a Delaware corporation, formerly known
as MacAndrews & Forbes Holdings Inc.
17
“M&F
Consolidated Line of Credit”
shall mean the line of credit in an aggregate amount of $87,000,000 provided
under the Senior Unsecured Line of Credit Agreement, dated as of July 9, 2004,
between the Company and M&F, as amended through the date hereof and as the
same may be amended, increased, supplemented or otherwise modified from time to
time to the extent permitted by Sections
11.2(i)
and
11.9.
“M&F
Investment Agreement”
shall mean the Investment Agreement, dated February 20, 2004, between Revlon
and M&FH, as amended through the date hereof and as the same may be
amended, supplemented or otherwise modified from time to time.
“M&F
Lender”
shall mean M&F, and/or an Affiliate thereof (other than REV Holdings), that
provides financing to the Company pursuant to the M&F Loans.
“M&F
Loans”
shall mean the collective reference to the M&F Consolidated Line of Credit
and any other Indebtedness permitted to be incurred under Section
11.2(i).
“M&FG”
shall mean MacAndrews & Forbes Group, Incorporated, a Delaware
corporation.
“M&FH”
shall mean MacAndrews & Forbes Holdings Inc., a Delaware corporation,
formerly known as Mafco Holdings Inc.
“Material
Adverse Effect”
shall mean a material adverse effect upon (i) the business, condition
(financial or otherwise), operations, performance, properties or prospects of
(A) Revlon or (B) the Company and its Subsidiaries taken as a whole, (ii) the
ability of the Company and its Subsidiaries taken as a whole to perform the
obligations of the Company under the Loan Documents or (iii) the rights and
remedies available to any Agent and/or the Lenders under any Loan
Document.
“Moody’s”
shall mean Xxxxx’x Investors Service, Inc. (or any successor
thereto).
“Mortgage
Supporting Documents”
shall mean, with respect to a Mortgage for a parcel of Real Property, each the
following:
(a) (i)
evidence in form and substance reasonably satisfactory to the Designated
Administrative Agent that the recording of counterparts of such Mortgage in the
recording offices specified in such Mortgage will create a valid and
enforceable second priority Lien on property described therein in favor of the
Collateral Agent for the benefit of the Secured Parties (or in favor of such
other trustee as may be required or desired under local law) subject only to
(A) Customary Permitted Liens (B) Liens securing the Multi-Currency Payment
Obligations and Designated Eligible Obligations as provided for in the
Intercreditor Agreement and (C) such other Liens as the Designated
Administrative Agent may reasonably approve and (ii) an opinion of counsel in
each state in which any such Mortgage is to be recorded in form and substance
and from counsel reasonably satisfactory to the Designated Administrative
Agent;
(b) (i) a
mortgagee’s title policy (or policies) or marked-up unconditional binder
(or binders) for such insurance (or other evidence reasonably acceptable to the
Designated Administrative Agent proving ownership thereof) (“Mortgagee’s
Title Insurance Policy”),
dated a date reasonably satisfactory to the Designated Administrative
18
Agent,
which shall (A) be in an amount not less than 125% of Mortgage Value of such
parcel of Real Property, (B) be issued at ordinary rates, (C) insure that the
Lien granted pursuant to the Mortgage insured thereby creates a valid second
priority Lien on such parcel of Real Property free and clear of all defects and
encumbrances, except for Customary Permitted Liens, Liens securing the
Multi-Currency Payment Obligations and Designated Eligible Obligations as
provided for in the Intercreditor Agreement and such Liens, defects and
encumbrances as may be approved by the Designated Administrative Agent, (D)
name the Collateral Agent for the benefit of the Secured Parties as the insured
thereunder, (E) be in the form of ALTA Loan Policy - 1992 (or such local
equivalent thereof as is reasonably satisfactory to the Designated
Administrative Agent), (F) contain a waiver of creditors’ rights, a
comprehensive lender’s endorsement and such other endorsements as the
Designated Administrative Agent shall reasonably require (including, but not
limited to a floating rate endorsement), (G) be issued by Chicago Title
Insurance Company, First American Title Insurance Company, Lawyers Title
Insurance Corporation or any other title company reasonably satisfactory to the
Designated Administrative Agent (including any such title companies acting as
co-insurers or reinsurers) and (H) be otherwise in form and substance
reasonably satisfactory to the Designated Administrative Agent and (ii) a copy
of all documents referred to, or listed as exceptions to title, in such title
policy (or policies), in each case in form and substance reasonably
satisfactory to the Designated Administrative Agent;
(c) maps or
plats of an as-built survey of such parcel of Real Property certified to and
received by (in a manner reasonably satisfactory to each of them) the
Designated Administrative Agent and the title insurance company issuing the
Mortgagee’s Title Insurance Policy for such Mortgage, dated a date
reasonably satisfactory to the Designated Administrative Agent and such title
insurance company, by an independent professional licensed land surveyor
reasonably satisfactory to the Designated Administrative Agent and such title
insurance company, which maps or plats and the surveys on which they are based
shall be made in form and substance reasonably satisfactory to the Designated
Administrative Agent;
(d) evidence
in form and substance reasonably satisfactory to the Designated Administrative
Agent that all premiums in respect of each Mortgagee’s Title Insurance
Policy, all recording fees and stamp, documentary, intangible or mortgage
recording taxes, if any, in connection with the Mortgage have been paid;
(e) a Phase
I environmental report with respect to such parcel of Real Property, in form
and substance reasonably satisfactory to the Designated Administrative Agent;
and
(f) such
other agreements, documents and instruments in form and substance reasonably
satisfactory to the Designated Administrative Agent as the Designated
Administrative Agent reasonably deems necessary or appropriate to create,
register or otherwise perfect, maintain, evidence the existence, substance,
form or validity of, or enforce a valid and enforceable first priority lien on
such parcel of Real Property in favor of the Collateral Agent for the benefit
of the Secured Parties (or in favor of such other trustee as may be required or
desired under local law) subject only to (A) Customary Permitted Liens, (B)
Liens securing the Multi-Currency Payment Obligations and Designated Eligible
Obligations as provided for in the Intercreditor Agreement and (C) such other
Liens as the Designated Administrative Agent may reasonably
approve.
19
“Mortgage
Value”
shall mean, with respect to any parcel of Real Property, the lesser of (a) the
Equivalent in Dollars of the maximum stated amount secured by the Lien on such
parcel of Real Property granted in favor of the Collateral Agent pursuant to
the relevant Mortgage and (b) the Equivalent in Dollars of the value of such
parcel of Real Property set forth in the most recent appraisal delivered with
respect thereto to the Designated Administrative Agent.
“Mortgaged
Properties”
shall mean the real property and improvements encumbered by the
Mortgages.
“Mortgagee’s
Title Insurance Policy”
shall have the meaning specified in the definition of Mortgage Supporting
Documents.
“Mortgages”
shall mean the collective reference to the Oxford Mortgage and any fee mortgage
or the deed of trust, as the case may be, to be made pursuant to Sections
9.1(d) or
10.15 by the
fee owner of the Mortgaged Properties, in substantially the form of
Exhibit
G, as the
same may be amended, amended and restated, supplemented or otherwise modified
from time to time; individually, a “Mortgage”.
“Multi-Currency
Administrative Agent”
shall mean the “Multi-Currency Administrative Agent” (as defined
under the Existing Credit Agreement).
“Multi-Currency
Collateral”
shall have the meaning specified in the Intercreditor Agreement.
“Multi-Currency
Lenders”
shall mean the “Multi-Currency Lenders” under and as defined in the
Existing Credit Agreement.
“Multi-Currency
Loans”
shall have the meaning assigned to such term in the Existing Credit
Agreement.
“Multi-Currency
Payment Obligations”
shall mean the “Payment Obligations” as defined under the Existing
Credit Agreement.
“Multiemployer
Plan”
shall mean a Plan (other than a welfare plan as defined in Section 3(1) of
ERISA) which is a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net
Proceeds”
shall mean, with respect to any Net Proceeds Event of any Person, (a) the gross
cash consideration, and all cash proceeds of non-cash consideration (including,
without limitation, any such cash proceeds in the nature of principal and
interest payments on account of promissory notes or similar obligations),
received by such Person in connection with such Net Proceeds Event,
minus (b) the
sum, without duplication, of:
(i) any
taxes which are paid, actually currently payable or estimated in good faith by
the Company to become payable to any state, local or foreign taxing authority
and are directly attributable to such Net Proceeds Event;
(ii) any
federal taxes which are directly attributable to any Net Proceeds Event of such
Person or any of its Subsidiaries;
20
(iii) the
amount of fees and commissions (including reasonable investment banking fees),
legal, title and recording tax expenses and other costs and expenses directly
incident to such Net Proceeds Event which are paid or payable by such Person
and its Subsidiaries, other than fees and commissions (including, without
limitation, management consulting and financial services fees) paid or payable
to Affiliates of such Person (or officers or employees of such Person or any
Affiliate of such Person); and
(iv) the
amount of liabilities (other than intercompany liabilities or liabilities owing
to any Affiliate of such Person), if any, which are required to be repaid at
the time or as a result of such Net Proceeds Event out of the proceeds
thereof.
“Net
Proceeds Event”
shall mean:
(a) the
incurrence by Revlon, the Company or any of the Company’s Subsidiaries of
any Indebtedness for borrowed money (other than Indebtedness permitted pursuant
to Section
11.2);
and
(b) with
respect to the Company and any Subsidiary Guarantor, the sale, lease, transfer
(by merger or otherwise) or other disposition (including as a result of a
Property Loss Event but other than (i) in the ordinary course of business, and
(ii) in respect of intellectual property licenses entered into in the ordinary
course of business) by the Company or such Subsidiary Guarantor of any interest
in any real or personal, tangible or intangible, property (including, without
limitation, the Stock or Stock Equivalents of any Subsidiary of the Company) of
the Company or such Subsidiary Guarantor to any Person (other than to the
Company or any of its Subsidiaries or any Permitted Joint Venture pursuant
to
Section 11.6(c),
(e) or
(g)).
“Non-Excluded
Taxes”
shall have the meaning assigned to such term in
Section 7.12(a).
“Non-Voting
Stock”
shall have the meaning assigned to such term in Section
10.11(b).
“Note”
shall mean any Term Loan Note.
“Notice
of Actionable Default”
shall have the meaning assigned to such term in the Intercreditor
Agreement.
“Notice
of Borrowing”
shall have the meaning assigned to such term in
Section 2.3(a).
“Notice
of Conversion or Continuation”
shall have the meaning assigned to such term in Section
7.7(a).
“Notice
of Intent to Cure”
shall have the meaning assigned to such term in Section
10.2(b).
“Other
Taxes”
shall mean any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan
Document.
21
“Oxford
Mortgage”
shall mean the Mortgage in favor of the Collateral Agent, for the benefit of
the Term Loan Secured Parties (as defined in the Pledge and Security
Agreement), on the Real Property owned by the Company which is located in
Oxford, North Carolina, as amended, supplemented or otherwise modified from
time to time.
“Parent”
shall have the meaning assigned to such term in Section
10.8.
“Patent”
shall have the meaning assigned to such term in the Pledge and Security
Agreement.
“Payment
Obligations”
shall mean the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Company, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans
and all other obligations and liabilities of the Company to the Administrative
Agent, or any Lender, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, any other Loan Document, or any
other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, reasonable and documented costs, reasonable and documented
expenses (including all fees, charges and disbursements of counsel to the
Administrative Agent, the Collateral Agent or to any Lender that are required
to be paid by the Company pursuant hereto) or otherwise.
“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
“Permitted
Acquisition”
shall mean the purchase by the Company or any of its Subsidiaries of all or
substantially all of the assets or all of the stock (other than directors’
qualifying shares) of one or more Persons, or of all or substantially all of
the assets which comprise any business unit of any such person, if such
purchase or acquisition complies with the following criteria:
(a) no
Default or Event of Default shall be in effect prior to or after giving effect
to such purchase, and the Company shall have delivered to the Administrative
Agent a certificate of a Responsible Officer of the Company to such
effect;
(b) after
giving effect to the consummation of such purchase and to the incurrence of any
Indebtedness associated therewith, the Company shall be in pro forma compliance
with Section
11.1, and
the Company shall have delivered to the Administrative Agent such financial
information as the Administrative Agent shall reasonably request to demonstrate
such pro forma compliance;
(c) the
Person or business unit purchased shall be in business of the same general type
as conducted on the Closing Date by the Company and its
Subsidiaries;
(d) any
Person whose stock is directly or indirectly purchased shall be, after giving
effect to such purchase, a direct or an indirect wholly-owned subsidiary of the
Company; and
22
(e) the
aggregate fair market value of the consideration paid by the Company and its
Subsidiaries (including any assumption of Indebtedness in connection with all
such purchases, but excluding any such consideration paid with the proceeds of,
or Stock or Stock Equivalents issued pursuant to, an Equity Offering or any
M&F Loans and reduced by an amount equal to the Net Proceeds received by
the Company and its Subsidiaries from any Net Proceeds Event on account of any
Resale Transaction with respect to any Permitted Acquisition) for all such
purchases on and after the date hereof shall not exceed
$100,000,000.
“Permitted
Cure Security”
means equity securities of the Company issued to Revlon (a) having no mandatory
redemption, repurchase, repayment or similar requirements prior to the date
which occurs six months after the Term Loan Maturity Date and (b) that are not
convertible into or exchangeable for (i) debt securities or (ii) any equity
securities that have mandatory redemption, repurchase, repayment or similar
requirements prior to the date which occurs six months after the Term Loan
Maturity Date and, in each case, upon which any required dividends or
distributions shall be payable in additional shares of such security
only.
“Permitted
Intercompany Transfers”
shall mean any:
(i) merger
or consolidation of any Subsidiary of the Company with or into the Company;
provided,
however, that
the Company shall be the continuing or surviving corporation;
(ii) merger
or consolidation of any Subsidiary of the Company with or into any one or more
wholly-owned Subsidiaries of the Company (or to any Person which, after giving
effect to such merger or consolidation and to any other concurrent merger or
consolidation involving the Company or any of its Subsidiaries that is
permitted under Section
11.5, is a
wholly-owned Subsidiary of the Company); provided,
however, that
if such merger or consolidation involves a Subsidiary Guarantor and a
Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary
Guarantor shall be the continuing or surviving corporation or, if such
Subsidiary Guarantor shall not be the continuing or surviving corporation, the
continuing or surviving corporation shall become a Subsidiary Guarantor (prior
to or concurrently with the consummation of such merger or
consolidation);
(iii) (A) any
liquidation and distribution by any Subsidiary of the Company of its assets to
the Company or to any one or more Subsidiary Guarantors (or to any Person
which, simultaneously with such transaction and after giving effect to such
liquidation and distribution and to any other concurrent liquidation and
distribution involving any of the Company’s Subsidiaries that is permitted
under Section
11.5, shall
become a Subsidiary Guarantor and the Company shall comply with Sections
10.10, 10.11 and
10.12
to the
extent required thereby) or, if such Subsidiary is not a Subsidiary Guarantor,
to any one or more wholly-owned Subsidiaries of the Company or (B) any
liquidation and distribution by any Subsidiary of the Company that is not a
Subsidiary Guarantor to any wholly-owned Subsidiary of the Company that is not
a Subsidiary Guarantor;
(iv) any
sale, lease, assignment, transfer or any other disposition by the Company of,
in one transaction or a series of related transactions, all or any part of its
business or assets to any Subsidiary Guarantor;
23
(v) any
sale, lease, assignment, transfer or any other disposition by any Subsidiary
of, in one transaction or a series of related transactions, all or any part of
its business or assets to the Company or, if such Subsidiary is a Subsidiary
Guarantor, to any Subsidiary Guarantor or, if such Subsidiary is not a
Subsidiary Guarantor, to any other wholly-owned Subsidiary of the Company;
or
(vi) the
sale, lease, assignment, transfer or other disposal by the Company or any of
its Subsidiaries of any Disposition Assets (including, without limitation,
capital stock constituting Disposition Assets) to the Company or any of its
Subsidiaries or the merger or consolidation or liquidation with or into the
Company or any of its Subsidiaries of any Subsidiary of the Company listed on
Schedule
8.13(b) as
being scheduled for dissolution or liquidation; provided,
however, that
the Company or a Subsidiary not listed on Schedule
8.13(b) as
being scheduled for dissolution or liquidation shall be the ultimate continuing
or surviving corporation;
provided,
however, that,
after giving effect to any such Permitted Intercompany Transfer, the Collateral
Agent shall maintain a security interest in any property so transferred in
which it had a security interest prior to such Permitted Intercompany Transfer
with the same priority as prior to such Permitted Intercompany
Transfer.
“Permitted
Joint Venture”
shall mean a joint venture arrangement (whether structured as a corporation,
partnership or other contractual relationship) between the Company or any of
its Subsidiaries, on the one hand, and a third party that is not directly or
indirectly controlled by Xxxxxx X. Xxxxxxxx, on the other hand, the primary
business of which joint venture is the development, manufacture, distribution
and/or sale (including marketing and advertising) of products relating to the
beauty, skin care, fragrance and/or personal care businesses or otherwise
derived from the proprietary intellectual property of the Company and its
Subsidiaries (or of holding properties incidental to such
businesses).
“Permitted
M&F Loan Amount”
shall have the meaning assigned to such term in Section
11.2(i).
“Permitted
Third Lien Financing”
shall mean third lien Indebtedness of the Company or any Subsidiary that (a)
shall have a third lien on the Multi-Currency Collateral, junior to the Liens
securing the Multi-Currency Payment Obligations and the Liens securing the
Payment Obligations, (b) shall have a third lien on the Term Loan Collateral,
junior to the Liens securing the Payment Obligations and the Liens securing the
Multi-Currency Payment Obligations, (c) is subject to an intercreditor
agreement on terms satisfactory to the Multi-Currency Administrative Agent and
the Administrative Agent, (d) is on terms, taken as a whole, that are not more
restrictive to the Company or any Subsidiary than this Agreement or the
Existing Credit Agreement (other
than the interest rate and fees applicable to such refinancing Indebtedness,
which shall not be less favorable to the obligor than it would obtain in an
arm’s length transaction with a Person that is not an Affiliate thereof
and shall reflect the prevailing market conditions at the time of such
refinancing);
provided, that a
certificate of a Responsible Officer delivered to the Administrative Agent at
least five Business Days prior to the incurrence of such refinancing
Indebtedness, together with a reasonably detailed description of the material
terms and conditions of such Indebtedness or drafts of the documentation
relating thereto, stating that the Company has determined in good faith that
such terms and conditions satisfy the foregoing requirement shall be conclusive
evidence that such terms and
24
conditions satisfy the foregoing requirement unless the Administrative Agent
notifies the Company within such five Business Day period that it disagrees
with such determination (including a reasonable description of the basis upon
which it disagrees), (e)
has a final maturity date no earlier than six months after the Term Loan
Maturity Date, and (f) has a principal amount not to exceed the principal
amount of the Subordinated Notes refinanced thereby together with any premium
actually paid thereon and reasonable costs and expenses (including underwriting
discounts) incurred in connection with such refinancing; provided,
however, that
after giving pro forma effect to such Permitted Third Lien Financing, as of the
date of the most recent financial statements delivered pursuant to Section
10.1, the
Company’s Senior Secured Leverage Ratio shall be less than 3.25 to
1.0.
“Person”
shall mean an individual, a partnership, a corporation, a business trust, a
joint stock company, a limited liability company, a trust, an unincorporated
association, a joint venture, a Governmental Authority or any other entity of
whatever nature.
“Petroleum
Products”
shall mean gasoline, diesel fuel, motor oil, waste or used oil, heating oil,
kerosene and any other petroleum products, including crude oil or any fraction
thereof.
“Plan”
shall mean at any particular time, any employee benefit plan which is covered
by ERISA and in respect of which the Company or a Commonly Controlled Entity is
(or, if such plan was terminated at such time, would under Section 4069 of
ERISA be deemed to be) an “employer”
as defined in Section 3(5) of ERISA.
“Pledge
and Security Agreement”
shall mean the Amended and Restated Pledge and Security Agreement,
substantially in the form of Exhibit
F,
executed by the Company and each other Guarantor, as the same may be amended,
amended and restated, supplemented or otherwise modified from time to
time.
“Pledged
Debt Instruments”
shall have the meaning assigned to such term (or any analogous term) in the
Pledge and Security Agreement.
“Pledged
Stock”
shall have the meaning assigned to such term (or any analogous term) in the
Pledge and Security Agreement.
“Potential
Withdrawal Liability”
shall have the meaning assigned to such term in
Section 8.8.
“Prepayment
Fee”
shall mean, with respect to any prepayment of the Term Loans (whether optional
or mandatory) pursuant to Section
7.2,
Section
7.3 (except
any prepayment required under Section
7.3(a)) or
Section
14.1(c) during
any period set forth below, a fee equal to the percentage of the aggregate
principal amount of such prepayment set forth opposite such
period:
Prepayment
Date |
Prepayment
Fee |
On or
prior to the first anniversary of the Closing Date |
3.00%
|
25
Prepayment
Date |
Prepayment
Fee |
After
the first anniversary of the Closing Date and on or prior to the second
anniversary of the Closing Date |
2.00%
|
After
the second anniversary of the Closing Date and on or prior to the third
anniversary of the Closing Date |
1.00%
|
After
the third anniversary of the Closing Date |
None
|
“Prior
Tax Sharing Agreement”
shall mean the Tax Sharing Agreement entered into as of June 24, 1992, as
amended and restated, among the Company and certain of its Subsidiaries,
Revlon, Revlon Holdings and M&FH.
“Proceeds”
shall have the meaning assigned to such term in the UCC.
“Property
Loss Event”
shall mean (a) any loss of or damage to property of the Company or any of its
Subsidiaries or (b) any taking of property of the Company or any of its
Subsidiaries.
“Real
Property”
of any Person shall mean the Land of such Person, together with the right,
title and interest of such Person, if any, in and to the streets, the Land
lying in the bed of any streets, roads or avenues, opened or proposed, in front
of, the air space and development rights pertaining to the Land and the right
to use such air space and development rights, all rights of way, privileges,
liberties, tenements, hereditaments and appurtenances belonging or in any way
appertaining thereto, all fixtures, all easements now or hereafter benefiting
the Land and all royalties and rights appertaining to the use and enjoyment of
the Land, including all alley, vault, drainage, mineral, water, oil and gas
rights, together with all of the buildings and other improvements now or
hereafter erected on the Land and any fixtures appurtenant
thereto.
“Refinancing”
shall mean the refinancing of the term loan facility under the Existing Credit
Agreement with the proceeds of the Loans on the Closing Date.
“Register”
shall have the meaning assigned to such term in Section
14.6(c).
“Related
Fund”
shall mean any Fund that is advised or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or Affiliate of an entity that
administers or manages a Lender.
“Release”
shall mean, with respect to any Person, any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration, in each case, of any Hazardous Material into the indoor or outdoor
environment or into or out of any property owned, leased or operated by such
Person, including the movement of Hazardous Materials through or in the air,
soil, surface water, ground water or property.
“Remedial
Action”
shall mean all actions required to (a) clean up, remove, treat or in any other
way address any Hazardous Material in the indoor or outdoor
26
environment, (b) prevent the Release or threat of Release or minimize the
further Release so that a Hazardous Material does not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
“Reorganization”
shall mean with respect to any Multiemployer Plan, the condition that such Plan
is in reorganization within the meaning of such term as used in Section 4241 of
ERISA.
“Reportable
Event”
shall mean any of the events set forth in Section 4043(c) of ERISA, other than
those events as to which the 30-day notice period is waived under subsections
.27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
§ 4043.
“Required
Lenders”
at any date shall mean the Lenders having more than 50% of the Aggregate Term
Loan Commitment then in effect or, after the Closing Date, 50% of the principal
amount of all Term Loans then outstanding.
“Requirement
of Law”
for any Person shall mean the Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and any law, treaty, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its material property or to which such Person or any of its material
property is subject.
“Resale
Transaction”
shall mean the sale, transfer or other disposition by the Company or any of its
Subsidiaries of any asset acquired by it after the date hereof pursuant to an
Investment or Permitted Acquisition; provided,
however, that,
within 180 days following the consummation of such Investment or Permitted
Acquisition, the Administrative Agent receives written notice from the Company
identifying such asset (with reasonable specificity) and stating that such
asset is being held for disposition in a Resale Transaction.
“Responsible
Officer”
shall mean any officer at the level of Vice President or higher of the relevant
Person or, with respect to financial matters, the Chief Financial Officer,
Treasurer, Controller or Vice President, Finance and Treasury of the relevant
Person.
“Restricted
Payment”
shall mean (a) any payment by the Company of a dividend (other than a dividend
payable solely in common stock of the Company) or distribution on, or any
payment by the Company or any of its Subsidiaries on account of the purchase,
redemption or retirement of, or any other distribution on, any Stock or Stock
Equivalents of the Company (including any such payment or distribution in cash
or in property or obligations of the Company or any of its Subsidiaries), (b)
any loan or advance, or the making of any other investment, by the Company or
any of its Subsidiaries to or in any Affiliate of the Company, (c) the payment
by the Company or any of its Subsidiaries of any management or administrative
fee (including, without limitation, any management consulting and financial
services fees) to any Affiliate of the Company or of any salary, bonus or other
form of compensation (other than in the ordinary course of business) to any
Person who is a significant stockholder or principal officer of any Affiliate
of the Company, or (d) any payment by the Company or any of its Subsidiaries to
any Affiliate of the Company pursuant to the Prior Tax Sharing Agreement or (e)
any payment by the Company or any of its Subsidiaries of principal or interest
in respect of amounts from
27
time to
time outstanding under any Capital Contribution Note; provided,
however, that
any amounts paid from time to time to Revlon (including, without limitation,
payments to Revlon pursuant to the Company Tax Sharing Agreement) to finance
the actual payment by Revlon of expenses and obligations incurred by Revlon to
Persons other than Affiliates of Revlon (or officers or employees of any such
Affiliate) shall not be “Restricted
Payments”
to the extent that such expenses and obligations, if they had been incurred by
the Company, would not have been prohibited hereunder and were incurred by
Revlon without violating the provisions of Section
12.1(p).
“REV
Holdings”
shall mean REV Holdings LLC, a Delaware limited liability company.
“Revlon”
shall mean Revlon, Inc., a Delaware corporation and the immediate Parent of the
Company.
“Revlon
Holdings”
shall mean Revlon Holdings LLC, a Delaware limited liability
company.
“ROP”
shall have the meaning assigned to such term in Section
12.1(g).
“RPH”
shall mean Revlon Professional Holding Company LLC, a Delaware limited
liability company.
“S&P”
shall mean Standard & Poor’s Rating Services (and any successor
thereto).
“Secured
Obligations”
shall mean, collectively (i) in the case of the Company, the Multi-Currency
Payment Obligations and the Payment Obligations of the Company, (ii) in the
case of each Loan Party, the obligations of each Loan Party under (A) the
Loan Documents to which it is a party and (B) the Loan Documents (as
defined in the Existing Credit Agreement) to which it is a party and (iii) the
Designated Eligible Obligations.
“Secured
Parties”
shall mean, collectively, the Lenders, the Administrative Agent, the
Multi-Currency Lenders, the Multi-Currency Administrative Agent, the Collateral
Agent and any other holder of any Secured Obligation.
“Securities
Account”
shall have the meaning assigned to such term in the UCC.
“Securities
Account Control Agreement”
shall have the meaning specified in the Pledge and Security
Agreement.
“Securities
Intermediary”
shall have the meaning assigned to such term in the UCC.
“Security
Documents”
shall mean the Intercreditor Agreement, the Guaranty, the Pledge and Security
Agreement, the Mortgages and all other security documents hereafter delivered
to the Administrative Agent granting a security interest in any asset or assets
of any Loan Party to secure the Payment Obligations of the Company hereunder,
under the Notes and any other Secured Obligations, or to secure any guarantee
of any such Payment Obligations and other Secured Obligations (and including
(a) the Term Loan Debenture between the Company, Xxxxxxx of the Ritz Group
Ltd., Xxxxxxx Xxxxxx Inc.
28
and
Revlon International Corporation (UK Branch), as Chargors, and the Collateral
Agent, (b) the Share Charge Agreement between Revlon International Corporation
and the Collateral Agent, (c) the Share Charge Agreement between the Company
and the Collateral Agent, (d) the Share Pledge Agreement between Revlon
International Corporation and the Collateral Agent and (e) the Trademark
Security Agreement among the Company, Xxxxxxx of the Ritz Group Ltd., Xxxxxxx
Xxxxxx Inc. and the Collateral Agent, as each may be amended, amended and
restated, supplemented or otherwise modified from time to time).
“Senior
Notes Indenture”
shall mean the collective reference to (a) the Indenture, dated as of March 16,
2005, between the Company and U.S. Bank Trust National Association, relating to
the Existing Senior Notes and any additional notes issued hereafter thereunder
and (b) each instrument, document and agreement delivered in connection
therewith, as each of the foregoing has been amended and supplemented through
the date hereof and may be further amended, supplemented or otherwise modified
from time to time to the extent permitted by Section
11.9.
“Senior
Secured Debt”
shall mean, at any date, (a) the aggregate principal amount of any secured
Indebtedness of the Company and its Subsidiaries described in clauses (a), (b),
(c), (d), (e) (to the extent of any reimbursement obligation that is unpaid)
and (f) in the definition of “Indebtedness” at such date and all
Indebtedness of the types referred to in this definition which is guaranteed
directly or indirectly by the Company or any of its Subsidiaries, determined on
a consolidated basis in accordance with GAAP, other than (i) any Indebtedness,
including letters of credit, secured solely by cash collateral to the extent
permitted hereunder and (ii) the aggregate principal amount then outstanding of
the Multi-Currency Payment Obligations, minus (b) the amount of all cash and
Cash Equivalents that would, in conformity with GAAP, be included in
“total current assets” (or like caption) on a consolidated balance
sheet of the Company and its Subsidiaries at such time in excess of $20,000,000
(less (i) the aggregate principal amount then outstanding of the
“Multi-Currency Loans” under and as defined in the Existing Credit
Agreement and (ii) any amount that constitutes a Cure Amount or an Existing
Credit Agreement Cure Amount).
“Senior
Secured Leverage Ratio”
shall mean, for any period, the amount equal to the ratio of (a) Senior Secured
Debt on the last day of such period to (b) EBITDA of the Company and its
Subsidiaries for the period of four consecutive fiscal quarters ended on the
last day of such period.
“Significant
Trademark”
shall mean each Trademark of the Company and its Domestic Subsidiaries on the
Closing Date and each other Trademark from time to time which, in either case,
is of such a nature that the Company or its Subsidiaries in accordance with its
ordinary business practice then in effect would file an application for
trademark registration in the United States Patent and Trademark
Office.
“Single
Employer Plan”
shall mean any Plan (other than a Multiemployer Plan) which is covered by Title
IV of ERISA.
“Specified
Default”
shall mean any Default by the Company and its Subsidiaries in the observance or
performance of any covenant or agreement contained in Sections
10.10, 10.11, 10.12,
10.13
or
10.14.
29
“Specified
Dispositions”
shall mean the sale, transfer or other disposition of (a) the Stock of
Subsidiaries constituting Disposition Assets, (b) assets of any Subsidiary
constituting a Disposition Asset, (c) any assets (including, without
limitation, Stock) directly relating to the brands constituting Disposition
Assets and (d) any other asset which constitutes a Disposition
Asset.
“Special
Purpose Vehicle”
means any special purpose funding vehicle identified as such in writing by any
Lender to the Administrative Agent.
“Stock”
means shares of capital stock (whether denominated as common stock or preferred
stock), beneficial, partnership or membership interests, participations or
other equivalents (regardless of how designated) of or in a corporation,
partnership, limited liability company or equivalent entity, whether voting or
non-voting.
“Stock
Equivalents”
means all securities convertible into or exchangeable for Stock and all
warrants, options or other rights to purchase or subscribe for any Stock,
whether or not presently convertible, exchangeable or exercisable.
“Stockholders
Agreement”
shall mean the Stockholders Agreement dated February 20, 2004 by and between
Revlon and Fidelity Management & Research Co., as amended through the date
hereof and as the same may be amended, supplemented or otherwise modified from
time to time.
“Subordinated
Notes”
shall mean the notes in an aggregate principal amount not to exceed
$327,078,000, issued by the Company pursuant to the Subordinated Notes
Indenture, as such Subordinated Notes may be amended, supplemented or otherwise
modified from time to time to the extent permitted by
Section 11.9.
“Subordinated
Notes Indenture”
shall mean the Indenture, dated as of February 1, 1998, between the Company and
U.S. Bank Trust National Association (formerly known as First Trust National
Association), relating to the 8-5/8% Senior Subordinated Notes of the Company,
as the same may be amended, supplemented or otherwise modified from time to
time to the extent permitted by Section
11.9.
“Subsidiary”
of any Person shall mean a corporation or other entity of which an aggregate of
more than 50% of the shares of Stock or Stock Equivalents having ordinary
voting power (irrespective of whether, at the time, such Stock or Stock
Equivalents have or might have such power only by reason of the happening of a
contingency) to elect the directors of such corporation, or other Persons
performing similar functions for such entity, are owned or controlled, directly
or indirectly, by such Person or one or more Subsidiaries of such Person;
provided,
however, that,
(a) unless otherwise qualified, all references to a “Subsidiary”
or to “Subsidiaries”
in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company,
but shall exclude RPH, and (b) unless otherwise qualified, all references to a
“wholly-owned
Subsidiary”
in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company of
which the Company directly or indirectly owns all of the capital stock or other
equity interests (other than directors’ qualifying shares).
“Subsidiary
Guarantor”
shall mean each Guarantor that is a Subsidiary of the Company.
30
“Surplus
Assets”
shall mean personal property of the Company and its Subsidiaries which has been
used in the business of the Company and its Subsidiaries for not less than one
year and which is sufficiently immaterial to the conduct of the business of the
Company and its Subsidiaries that the contribution thereof to any Permitted
Joint Venture would not result in the acquisition by the Company or any of its
Subsidiaries of a substantially similar item of personal property during the
period of one year following the date of such contribution.
“Syndication
Agent”
shall mean shall mean JPMorgan Chase Bank, N.A., in its capacity as Syndication
Agent.
“Synthetic
Purchase Agreement”
shall mean any agreement pursuant to which the Company or any of its
Subsidiaries is or may become obligated to make (a) any payment in connection
with the purchase by any third party from a Person other than the Company or
any of its Subsidiaries of any Stock or Stock Equivalents of the Company or any
of its Subsidiaries or any Indebtedness referred to in Section
11.9 (other
than in connection with any such payment which the Company or any of its
Subsidiaries would be permitted to make pursuant to Section
11.7 or
11.9, as
applicable) or (b) any payment (except as otherwise expressly permitted by
Section
11.7 or
11.9), the
amount of which is determined by reference to the price or value at any time of
any such Stock, Stock Equivalents or Indebtedness; provided,
however, that
no phantom stock or similar plan providing for payments only to current or
former directors, officers or employees of the Company or any of its
Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic
Purchase Agreement.
“Taxable
Lender”
shall have the meaning assigned to such term in Section
7.12(e).
“Term
Facility Increase”
shall have the meaning specified in Section
2.6(a).
“Term
Facility Increase Date”
shall have the meaning specified in Section
2.6(a).
“Term
Facility Increase Notice”
shall mean a notice from the Company to the Administrative Agent requesting a
Term Facility Increase, which may include any proposed term and condition for
such proposed Term Facility Increase but shall include in any event the amount
of such proposed Term Facility Increase.
“Term
Loan”
and “Term
Loans”
shall have the meanings assigned to such terms in
Section 2.1.
“Term
Loan Collateral”
shall have the meaning specified in the Intercreditor Agreement.
“Term
Loan Commitment”
of any Lender shall mean the obligation of such Lender to make Term Loans to
the Company on the Closing Date, in an aggregate principal amount not to exceed
the amount set forth opposite such Lender’s name on Schedule
II;
collectively, as to all such Lenders, the “Term
Loan Commitments”.
“Term
Loan Facility”
shall mean the Term Loan Commitments and the provisions herein related to the
Term Loans.
31
“Term
Loan Maturity Date”
shall mean January 15, 2012.
“Term
Loan Note”
shall mean a promissory note of the Company, substantially in the form of
Exhibit
A with
appropriate insertions as to date and principal, payable to a
Lender.
“Term
Loan Termination Date”
shall mean the earliest of (a) the Term Loan Maturity Date and (b) the date on
which the Payment Obligations become due and payable pursuant to Section
12.1.
“Trademark”
shall have the meaning assigned to such term in the Pledge and Security
Agreement.
“Tranche”
shall mean the collective reference to Eurodollar Loans, the Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such Eurodollar Loans shall originally have been made on
the same day).
“Transferee”
shall mean any Eligible Assignee, Special Purpose Vehicle and participant to
which Sections 14.6(a),
14.6(f) and
14.6(g),
respectively, apply.
“UCC”
shall have the meaning specified in the Pledge and Security
Agreement.
“United
Kingdom”
shall mean the United Kingdom of Great Britain and Northern
Ireland.
“United
States”
shall mean any state of the United States of America and the District of
Columbia.
“Unfunded
Pension Amount”
shall have the meaning assigned to such term in
Section 8.8.
“Unpledged
International Property”
shall mean (a) the portion (if any) of the Stock of each first-tier Foreign
Subsidiary of the Company or any Subsidiary Guarantor which is not pledged to
the Collateral Agent pursuant to the Pledge and Security Agreement and (b) any
patents, trademarks and copyrights of the Foreign Subsidiaries of the
Company.
“Voting
Stock”
shall have the meaning assigned to such term in Section
10.11(b).
“Working
Capital”
shall mean, for any Person at any date, the amount, if any, by which the
Consolidated Current Assets of such Person at such date exceeds the
Consolidated Current Liabilities of such Person at such date.
“Working
Day”
shall mean any Business Day other than a Business Day on which commercial banks
in London, England are authorized or required by law to close.
Section
1.2 Other
Definitional Provisions.
(a) All
terms defined in this Agreement shall have the defined meanings when used in
the Notes, the Security Documents, any other Loan Document or any certificate
or other document made or delivered pursuant hereto or thereto unless otherwise
defined therein.
32
(b) As used
herein, in the Notes, in the Security Documents, in the other Loan Documents
and in any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms not defined in
Section 1.1, and
accounting terms partly defined in Section
1.1 to the
extent not defined, shall have the respective meanings assigned to them under
GAAP. To the extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under GAAP, the definitions
contained herein shall control.
(c) The
words “hereof,”
“herein”
and “hereunder”
and words of similar import when used in this Agreement, the Notes, any
Security Documents or any other Loan Document shall refer to this Agreement,
such Note, such Security Document or such other Loan Document, as the case may
be, as a whole and not to any particular provision of this Agreement, such
Note, such Security Document or such other Loan Document, as the case may be;
and Article, Section, Schedule and Exhibit references contained in this
Agreement are references to Articles, Sections, Schedules and Exhibits in or to
this Agreement, unless otherwise specified. The term “including”
when used in any Loan Document means “including
without limitation”
except when used in the computation of time periods.
AMOUNTS
AND TERMS OF TERM LOAN COMMITMENTS
Section
2.1 Term
Loan Commitments. Subject
to the terms and conditions of this Agreement, each Lender severally agrees to
make term loans in Dollars (individually, a “Term
Loan”;
collectively, the “Term
Loans”)
to the Company under the Term Loan Commitments, which Term Loans shall be made
in a single drawing on the Closing Date; provided,
however, that
the aggregate outstanding amount of the Term Loans made by any Lender shall not
exceed such Lender’s Term Loan Commitment. The Term Loans may from time to
time be (a) Eurodollar Loans, (b) Alternate Base Rate Loans or (c) a
combination thereof, as determined by the Company and notified to the
Administrative Agent in accordance with
Section 2.3 and
7.7;
provided,
however, that
the Term Loans borrowed on the Closing Date shall initially be made as
Alternate Base Rate Loans. Amounts borrowed under this Section
2.1 and
repaid or prepaid may not be reborrowed.
Section
2.2 Obligations
of the Company.
(a) The
Company agrees that each Term Loan made by each Lender pursuant hereto shall
constitute the promise and obligation of the Company to pay to the
Administrative Agent, for the benefit of such Lender, at the office of the
Administrative Agent listed in
Section 14.2, in
lawful money of the United States of America and in immediately available funds
the aggregate unpaid principal amount of the Term Loans made by such Lender
pursuant to Section
2.1, which
amounts shall be due and payable (whether at maturity or by acceleration) as
set forth in this Agreement and, in any event, on the Term Loan Termination
Date.
(b) The
Company agrees that each Lender is authorized to record (i) the date and amount
of the Term Loan made by such Lender pursuant to Section
2.1, (ii)
the date of each interest rate conversion pursuant to Section
7.7 and the
principal amount subject thereto, (iii) the date and amount of each payment or
prepayment of principal of and interest with respect to each Term Loan and (iv)
in the case of each Eurodollar Loan, the interest rate and Interest Period, in
the books and records of such Lender and in such manner as is reasonable and
customary for such Lender and a certificate of an officer of such Lender,
setting forth in reasonable detail the information so recorded, shall
constitute prima facie evidence of the accuracy of the information
33
so
recorded; provided,
however, that
the failure to make any such recording or any error in such recording shall not
in any way affect the Payment Obligations of the Company
hereunder.
(c) The
Company agrees that, upon the request to the Administrative Agent by any Lender
at any time, the Term Loan of such Lender shall be evidenced by a Term Loan
Note, payable to the order of such Lender and representing the obligation of
the Company to pay a principal amount equal to the amount of the Term Loan
Commitment of such Lender or, if less, the aggregate unpaid principal amount of
the Term Loan made by such Lender, with interest on the unpaid principal amount
thereof from time to time outstanding under such Term Loan Note as prescribed
in
Section 7.5.
Section
2.3 Procedure
for Borrowing Term Loans.
(a) The
Company may request a borrowing under the Term Loan Commitments on the Closing
Date, subject to Section
2.1, by
giving irrevocable notice to the Administrative Agent at least one Business Day
prior thereto, which notice shall be in substantially the form of Exhibit
H-1 (a
“Notice
of Borrowing”)
and specify (i) the aggregate principal amount to be borrowed and (ii) the
Closing Date. Upon receipt of any such notice, the Administrative Agent will
promptly notify each Lender thereof. Each Lender will make available to the
Administrative Agent in immediately available funds at the office of the
Administrative Agent specified in
Section 14.2 (or at
such other location as the Administrative Agent may direct), by 1:00 P.M., New
York City time, on the Closing Date an amount equal to the Commitment
Percentage of such Lender multiplied by the aggregate principal amount of the
Term Loans requested to be made on the Closing Date in Dollars, in funds
immediately available to the Administrative Agent. The proceeds of the Term
Loans received by the Administrative Agent hereunder on the applicable
borrowing date shall promptly be made available to the Company by the
Administrative Agent’s crediting the account of the Company designated to
the Administrative Agent with the aggregate amount actually received by the
Administrative Agent from the Lenders and in like funds as received by the
Administrative Agent.
(b) The
failure of any Lender to make the Term Loan to be made by it on the applicable
borrowing date shall not relieve any other Lender of its obligation hereunder
to make its Term Loan on such borrowing date, but no Lender shall be
responsible for the failure of any other Lender to make the Term Loan to be
made by such other Lender on such borrowing date.
Section
2.4 Amortization
of Term Loans.
(a) The
Term Loans of each Lender shall mature in fifteen consecutive quarterly
installments, each of which shall be in an amount equal to such Lender’s
Commitment Percentage multiplied by the amount set forth below opposite such
installment (as such amounts may be reduced from time to time in accordance
with Section
7.2(b) or
7.4(b)):
Installment
|
Principal
Amount |
April
15, 2008 |
$2,100,000
|
|
|
July 15,
2008 |
$2,100,000
|
|
|
October
15, 2008 |
$2,100,000
|
|
|
January
15, 2009 |
$2,100,000
|
34
Installment
|
Principal
Amount |
April
15, 2009 |
$2,100,000
|
|
|
July 15,
2009 |
$2,100,000
|
|
|
October
15, 2009 |
$2,100,000
|
|
|
January
15, 2010 |
$2,100,000
|
|
|
April
15, 2010 |
$2,100,000
|
|
|
July 15,
2010 |
$2,100,000
|
|
|
October
15, 2010 |
$2,100,000
|
|
|
January
15, 2011 |
$2,100,000
|
|
|
April
15, 2011 |
$2,100,000
|
|
|
July 15,
2011 |
$2,100,000
|
|
|
October
15, 2011 |
$2,100,000
|
|
|
Term
Loan Maturity
Date
|
$808,500,000
|
(b) Any Term
Loans then outstanding shall be repaid in full (together with accrued interest
and other amounts owing on account thereof) on the Term Loan Termination
Date.
Section
2.5 Use
of Proceeds of Term Loans. The
proceeds of the Term Loans hereunder shall be used by the Company for the
purpose of refinancing the term loans owing by the Company under the Existing
Credit Agreement (including interest, fees and expenses in connection with such
refinancing), and for general corporate purposes not prohibited
hereunder.
Section
2.6 Term
Facility Increase.
(a) The
Company shall have the right to send to the Administrative Agent, after the
Closing Date, one or more Term Facility Increase Notices to request (each, a
“Term
Facility Increase”)
one or more tranches of term loans (the “Incremental
Term Loans”)
in a principal amount not to exceed $200,000,000 in the aggregate for all such
Term Facility Increases and in increments of not less than $50,000,000;
provided,
however, that
(i) no Term Facility Increase shall be requested later than one year prior to
the Term Loan Maturity Date, (ii) no Term Facility Increase shall become
effective earlier than 10 days after the delivery of the Term Facility Increase
Notice to the Administrative Agent in respect of such Incremental Term Loans
and (iii) after giving pro
forma effect
to the Incremental Term Loans made on the applicable Term Facility Increase
Date, as of the date of the most recent financial statements delivered pursuant
to Section
10.1, the
Company shall be in compliance with Section
11.1, and
the Company shall provide the Administrative Agent such financial information
as the Administrative Agent shall reasonably request to demonstrate compliance
with this clause
35
(iii).
Nothing in this Agreement shall be construed to obligate any Lender to
negotiate for (whether or not in good faith), solicit, provide or commit to
provide any Term Facility Increase, and any such Term Facility Increase may be
subject to changes in any term herein. The Administrative Agent shall promptly
notify each Lender of the proposed Term Facility Increase and of the proposed
terms and conditions therefor agreed between the Company and the Administrative
Agent. Each such Lender (and each of their Affiliates and Related Funds) may,
in its sole discretion, commit to participate in such Term Facility Increase by
forwarding its commitment to the Administrative Agent therefor in form and
substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall allocate, in its sole discretion but in amounts not
to exceed for each such Lender the commitment received from such Lender,
Affiliate or Related Fund, the Incremental Term Loans to be made as part of the
Term Facility Increase to the Lenders from which it has received such written
commitments. The Administrative Agent may receive commitments from existing
Lenders or their Affiliates or Related Funds and Eligible Assignees (other than
any Affiliate of the Company) in connection with such Term Facility Increase.
Each Term Facility Increase shall become effective on a date agreed by the
Company and the Administrative Agent (each a “Term
Facility Increase Date”),
which shall be in any case on or after the date of satisfaction of the
conditions precedent set forth in Section
9.2. The
Administrative Agent shall notify the Lenders and the Company, on or before
1:00 P.M. (New York City time) on the Business Day following the Term Facility
Increase Date of the effectiveness of the Term Facility Increase on the Term
Facility Increase Date and shall record in the Register all applicable
additional information in respect of such Term Facility Increase.
(b) The
Incremental Term Loans (i) shall rank pari
passu in
right of payment with the Term Loans and all other Incremental Term Loans, (ii)
shall not have a final maturity earlier than the Term Loan Maturity Date or
later than the date that is six months after the Term Loan Maturity Date (but
may have amortization up to 1% of the principal amount thereof each year prior
to such date), (iii) if the pricing with respect to such Incremental Term Loans
(including fees, interest and original issue discount) exceeds the Applicable
Margin for the Term Loans by more than 0.50%, then the Applicable Margin for
the Term Loans will be increased to an amount equal to such pricing minus
0.50%, and (iv) except for any differences permitted hereby, the Incremental
Term Loans shall have the same terms and conditions as the Term Loans (it being
understood that Incremental Term Loans may be made as part of the existing
tranche of Term Loans).
[Intentionally
Omitted.]
[Intentionally
Omitted.]
[Intentionally
Omitted.]
[Intentionally
Omitted.]
PROVISIONS
RELATING TO CERTAIN EXTENSIONS OF CREDIT; FEES AND
PAYMENT
Section
7.1 [Intentionally
Omitted.]
Section
7.2 Optional
Prepayments. The
Company may, subject to Section
7.11, at any
time and from time to time, prepay any Term Loans borrowed by it which are then
outstanding, in whole or in part, without premium or penalty (subject to the
proviso hereto), upon at least three Working Days’ irrevocable notice to
the Administrative Agent, in the case of Eurodollar Loans, and one Business
Day’s irrevocable notice to the Administrative Agent, in the case of
Alternate Base Rate Loans, specifying (i) the date and amount of such
prepayment, (ii) the principal amount to be prepaid and (iii) whether the
prepayment is of Eurodollar Loans or Alternate Base Rate Loans or a combination
thereof, and, if of a combination thereof, the amount of prepayment allocable
to each (and, with respect to such Eurodollar Loans, each Tranche thereof),
provided,
however, that
(A) any Term Loans prepaid pursuant to this Section
7.2
(including under clause
(B) below)
on or before the third anniversary of the Closing Date shall be accompanied by
a premium in an amount equal to the Prepayment Fee, and (B) any prepayment of
the Term Loans in whole upon a refinancing thereof (whether with proceeds of
equity or indebtedness) shall be deemed to be an optional prepayment. Upon
receipt of any such notice, the Administrative Agent will promptly notify each
affected Lender thereof. If any such notice is given, the Company will make the
prepayment specified therein, and such prepayment shall be due and payable on
the date specified therein. Each partial prepayment pursuant to this
Section
7.2 shall
be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall comply with Section
7.7(g). Any such
optional prepayment of the Term Loans shall be applied in the direct order of
maturity to the
remaining installments thereof.
Section
7.3 Mandatory
Prepayments.
(a) Unless
the Required Lenders otherwise agree, the Term Loans owing to each Lender shall
be repaid, without premium, within 100 days after the last day of each fiscal
year of the Company by an amount equal to 50% of Excess Cash Flow for such
fiscal year in accordance with the provisions of Section
7.4.
(b) Promptly
following a Net Proceeds Event (and in any event within one Business Day
following receipt by the relevant Person of the Net Proceeds from such Net
Proceeds Event):
(i) unless
the Required Lenders otherwise agree, the Term Loans shall be repaid in the
manner set forth in Section
7.4(a), by the
amount equal to the aggregate amount of Net Proceeds received from Net Proceeds
Events described in clause
(a) of such
definition; and
(ii) unless
the Required Lenders otherwise agree, the Term Loans shall be repaid in the
manner set forth in Section
7.4(a), by the
amount equal to the portion of the aggregate amount of Net Proceeds (other than
the Net Proceeds from Resale Transactions) received by the Company and its
Subsidiaries from all Net Proceeds Events described in clause (b) of such
definition; provided,
however, that
(x) no such prepayment of the Term Loans shall be required pursuant to this
Section
7.3(b)(ii) with
respect to any sale, lease, transfer or other disposition of Term Loan
Collateral during any
37
twelve-month period ending on July 9 of each year to the extent that the
aggregate amount of such Net Proceeds, together with all other Net Proceeds
described in this Section
7.3(b)(ii)
received during such period from any sale, lease, transfer or other disposition
of Term Loan Collateral, is less than $10,000,000 (or $25,000,000 for the
twelve month period ending on July 9, 2007) or the Equivalent in any other
currency thereof; provided,
further, that
in the event that the aggregate Net Proceeds described in this clause (x)
received during such twelve-month period (the “Annual
Net Proceeds”)
is less than $10,000,000 (or $25,000,000 for the twelve month period ending
July 9, 2007), the difference between $10,000,000 (or $25,000,000 for the
twelve month period ending on July 9, 2007) and the Annual Net Proceeds may be
added to the $10,000,000 permitted to be excluded from the prepayment of the
Term Loans pursuant to this clause (x) applicable to any subsequent
twelve-month period (up to a maximum excluded amount not to exceed $25,000,000
in any such twelve-month period) and (y) for purposes of this Section
7.3(b)(ii) only,
the term “Net Proceeds” shall not include the Net Proceeds from any
Specified Disposition to the extent that the aggregate amount of Net Proceeds
from all Specified Dispositions since the date hereof does not exceed
$25,000,000;
provided,
however, that
any Term Loans prepaid on or before the third anniversary of the Closing Date
pursuant to this Section
7.3(b) shall
be accompanied by a premium in an amount equal to the Prepayment Fee applicable
at such time.
(c) If the
Company would incur costs pursuant to Section
7.11 as a
result of any payment due pursuant to this Section
7.3, the
Company may deposit the amount of such payment with the Administrative Agent,
for the benefit of the Lenders, in a Cash Collateral Account under the control
of the Administrative Agent, until the end of the applicable Interest Period at
which time such payment shall be made (provided that such deposit does not
violate any provision of any Indenture then in effect). The Company hereby
grants to the Administrative Agent, for the benefit of such Lenders, a security
interest in all amounts in which the Company has any right, title or interest
which are from time to time on deposit in such Cash Collateral Account and
expressly waives all rights (which rights the Company hereby acknowledges and
agrees are vested exclusively in the Administrative Agent) to exercise dominion
or control over any such amounts.
(d) Upon the
borrowing of Term Loans pursuant to Section
2.1, the
Term Loan Commitment of each Lender shall be automatically and permanently
reduced in the amount of the Term Loan made by each Lender pursuant to such
borrowing. The Aggregate Term Loan Commitment, if any, shall terminate on the
Closing Date after the funding of the Term Loans.
Section
7.4 Application
of Payments.
(a)Any
prepayment of the Term Loans pursuant to Section
7.3(b)(i) shall
be applied to the repayment of the Term Loans then outstanding. Any prepayment
of the Term Loans pursuant to Section
7.3(b)(ii) shall
be applied, if in respect of the sale, lease, transfer or other disposition of
Term Loan Collateral, to the repayment of the Term Loans to the extent required
by Section
7.3(b)(ii), and if
in respect of the sale, lease, transfer or other disposition of Multi-Currency
Collateral or any other assets to the repayment of the Multi-Currency Loans
under, and to the extent required by, the Existing Credit
Agreement.
(b) Any
prepayment of the Term Loans required pursuant to Section
7.3 shall
be applied in the direct order of maturity to the
remaining installments thereof.
38
Section
7.5 Interest
Rate and Payment Dates; Risk Participation Fees. (a) The
Eurodollar Loans shall bear interest on the unpaid principal amount thereof for
each day during each Interest Period with respect thereto at a rate per annum
equal to the Eurodollar Rate for such day plus the
Applicable Margin.
(b) The
Alternate Base Rate Loans shall bear interest on the unpaid principal amount
thereof at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin.
(c) Notwithstanding
the rates of interest specified in clauses
(a)and
(b) of this
Section
7.5 or
elsewhere in this Agreement, effective immediately upon the occurrence of an
Event of Default under Section 12.1(a) or (j) and for as long thereafter as
such Event of Default shall be continuing, all of the aggregate unpaid
principal amount of the Loans, and (to the extent permitted by applicable law)
any overdue interest, fees and other amounts due under the Loan Documents,
shall (i) bear interest at a rate per annum (the “Default
Rate”)
which is equal to 2% above (x) the rate which would otherwise be applicable
thereto pursuant to this Section
7.5 or, (y)
if no such rate would otherwise be applicable, if due to a Lender, the rate
applicable to Term Loans that are Alternate Base Rate Loans and (ii) if such
amount is on account of a Eurodollar Loan, be converted to an Alternate Base
Rate Loan at the end of the Interest Period applicable thereto.
(d) Interest
on each Loan accrued to but not including each Interest Payment Date applicable
thereto shall be payable in arrears on each such Interest Payment Date;
provided,
however, that
interest accruing on the principal of or (to the extent permitted by applicable
law) interest or any other amount payable in connection with any such Loan not
paid when due (whether at stated maturity, by acceleration or otherwise), shall
be payable from time to time upon demand of the Administrative Agent acting on
the affected Lenders’ behalf.
Section
7.6 [Intentionally
Omitted.]
Section
7.7 Conversion
Options, Minimum Tranches and Maximum Interest
Periods.
(a) The
Company may elect from time to time to convert outstanding Loans from
Eurodollar Loans to Alternate Base Rate Loans by giving the Administrative
Agent at least one Business Day’s prior irrevocable notice of such
election. The Company may elect from time to time and at any time to convert
outstanding Loans from Alternate Base Rate Loans to Eurodollar Loans by giving
the Administrative Agent at least three Working Days’ irrevocable notice
of such election; provided,
however, that
no Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent or the Required
Lenders, so elect by notice to the Company. Upon receipt of such notice, the
Administrative Agent shall promptly notify each affected Lender thereof. On the
date on which such conversion is being made, each such affected Lender shall
take such action as is necessary to effect such conversion. All or any part of
the outstanding Loans may be converted as provided herein. Each such notice by
the Company shall be in substantially the form of Exhibit
I (a
“Notice
of Conversion or Continuation”),
(b) Any
Loans which are Eurodollar Loans may be continued as such upon the expiration
of an Interest Period with respect thereto by giving the Administrative Agent
at least three Working Days’ irrevocable notice for continuation thereof;
provided,
however, that
no such Eurodollar Loan may be continued as such when any Event of Default has
occurred and is continuing and the Administrative Agent or the Required
Lenders, so elect by notice to the Company, and, instead, such Eurodollar Loans
shall be automatically converted to an Alternate Base Rate Loan on the last day
of the Interest Period for such Eurodollar Loans. The
39
Administrative
Agent shall notify each affected Lender promptly that such automatic conversion
shall occur. Each such notice by the Company shall be in substantially the form
of the Notice of Conversion or Continuation.
(c) [Intentionally
Omitted.]
(d) [Intentionally
Omitted.]
(e) In the
event that a timely notice of conversion or continuation with regard to Loans
which are Eurodollar Loans is not given in accordance with this
Section 7.7, then,
unless the Administrative Agent shall have received timely notice from the
Company in accordance with Section
7.2 that
such Eurodollar Loans are to be prepaid on the last day of such Interest
Period, the Company shall be deemed irrevocably to have requested that such
Eurodollar Loans be converted into Alternate Base Rate Loans on the last day of
such Interest Period.
(f) [Intentionally
Omitted.]
(g) Any
borrowing or continuation of Eurodollar Loans, or conversion to or from
Eurodollar Loans, or payments or prepayments of Eurodollar Loans, shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, (i) the aggregate principal amount of each Tranche of Loans
which are Eurodollar Loans shall be $5,000,000 or a whole multiple (to the
extent possible) of $1,000,000 in excess thereof, (ii) the aggregate principal
amount of all Loans which are Alternate Base Rate Loans shall be $2,500,000 or
a whole multiple (to the extent possible) of $500,000 in excess thereof and
(iii) there shall not be more than 15 Tranches of Loans which are Eurodollar
Loans at any one time outstanding.
Section
7.8 Inability
to Determine Interest Rate.
(a) In the
event that the Administrative Agent shall have determined (which determination,
in the absence of manifest error, shall be conclusive and binding upon the
Company) that by reason of circumstances affecting the relevant interbank
eurocurrency market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for any Interest Period with respect to (i)
any proposed Loan that the Company has requested be made as Eurodollar Loans,
(ii) a Eurodollar Loan that will result from the requested conversion of all or
part of the Alternate Base Rate Loans into Eurodollar Loans or (iii) the
continuation of a Eurodollar Loan as such for an additional Interest Period
(any such Loan described in clauses
(i),
(ii)
or
(iii) of this
Section
7.8(a) being
herein called an “Affected
Loan”),
the Administrative Agent shall forthwith give telecopy or telephonic notice of
such determination, confirmed in writing, to the Company (with a copy to any
affected Lenders) at least two Business Days prior to, as the case may be, the
borrowing date for such Eurodollar Loan, the conversion date for such Alternate
Base Rate Loan or the last day of the Interest Period applicable to such
Eurodollar Loan. Unless the Company shall have notified the Administrative
Agent promptly upon receipt of such telecopy or telephonic notice that it
wishes to rescind or modify its request regarding such Affected Loans, then, as
the case may be, any requested Eurodollar Loan shall be made as an Alternate
Base Rate Loan, continued as an Alternate Base Rate Loan or converted into an
Alternate Base Rate Loan. Until any such notice has been withdrawn by the
Administrative Agent, no further Affected Loans shall be made.
(b) In the
event that the Required determine that the Eurodollar Rate determined or to be
determined for such Interest Period will not accurately reflect the cost to
them of making or maintaining any Term Loans that the Company has requested
that they make or maintain as, or convert to, Eurodollar Loans, the
Administrative Agent shall forthwith give telecopy or telephonic notice of such
determination to the Company on or before the requested
40
borrowing,
conversion or continuation date for such Term Loans or the next succeeding
Interest Period with respect thereto. Unless the Company shall have notified
the Administrative Agent promptly after receipt of such telecopy or telephonic
notice that it wishes to rescind or modify its borrowing request, then any such
Eurodollar Loans shall be made as or converted to Alternate Base Rate
Loans.
Section
7.9 Illegality.
(a)
Notwithstanding any other provision herein, if any change in law, rule,
regulation, treaty or directive or in the interpretation or application
thereof, shall make it unlawful for any Lender to make or maintain Eurodollar
Loans as contemplated by this Agreement or to accept deposits in order to make
or maintain such Eurodollar Loans, (i) such Lender shall promptly notify the
Administrative Agent and the Company thereof, (ii) the agreements of such
Lender hereunder to make, continue or convert to Eurodollar Loans shall be
suspended forthwith and (iii) such Lender’s Loans then outstanding as
Eurodollar Loans, if any, shall in the case of Eurodollar Loans automatically
become Alternate Base Rate Loans for the duration of the respective Interest
Periods applicable thereto (or, if permitted by applicable law, at the end of
such Interest Periods).
(b) [Intentionally
Omitted.]
(c) [Intentionally
Omitted.]
(d) The
Company agrees promptly to pay to any Lender any additional amounts necessary
to compensate such Lender for any costs incurred by it as a consequence of the
Company making any repayment in accordance with this Section
7.9,
including, without limitation, any interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its Eurodollar
Loans. A certificate as to any such costs payable pursuant to this Section
7.9 submitted
by an officer of any Lender, through the Administrative Agent, to the Company
shall be conclusive, in the absence of manifest error.
Section
7.10 Requirements
of Law; Changes of Law.
(a) In the
event that the adoption of or any change in law, rule, regulation, treaty or
directive or in the interpretation or application thereof, or compliance by any
Lender with any request or directive (whether or not having the force of law)
issued after the date hereof from any central bank or other Governmental
Authority:
(i) imposes
upon such Lender any tax of any kind whatsoever with respect to this Agreement,
its Notes or any Loan, or changes the basis of taxation of payments to such
Lender of principal, commitment fee, interest or any other amount payable
hereunder (except for (w) income and franchise taxes imposed on such Lender by
the jurisdiction under the laws of which such Lender is organized or any
political subdivision or taxing authority thereof or therein, or by the
jurisdiction of the principal office of such Lender or any political
subdivision or taxing authority thereof or therein or the office of such Lender
from which it is making its Loans or any political subdivision or taxing
authority thereof or therein, (x) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction
described in clause
(w) above,
(y) taxes resulting from the substitution of any such system by another system
of taxation, provided,
however, that
the taxes payable by such Lender subject to such other system of taxation are
not generally charged to borrowers from such Lender having loans or advances
bearing interest at a rate similar to the Eurodollar Rate and (z) Non-Excluded
Taxes, Other Taxes, and taxes imposed by way of deduction or withholding, which
shall be exclusively governed by Section
7.12);
41
(ii) imposes,
modifies or holds applicable any reserve, special deposit, compulsory loan or
similar requirement against any Loan made, or assets held by, or credit
extended by, or deposits or other liabilities in or for the account of, or
acquisition of funds by or for the account of, any office of such Lender, which
is not otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) imposes
on such Lender any other condition;
and the
result of any of the foregoing is to increase the cost to such Lender of
making, renewing, maintaining or participating in advances or extensions of
credit or to reduce any amount receivable by it in respect of its Eurodollar
Loans, then, in any such case, the Company shall promptly pay such Lender any
additional amounts necessary to compensate such Lender for such additional cost
or reduced amount receivable as reasonably determined by it with respect to
this Agreement, its Notes or its Loans after taking into account any amounts
paid or payable pursuant to Section
7.12(a). If a
Lender becomes entitled to claim any additional amounts pursuant to this
Section
7.10(a), it
shall promptly notify the Company, through the Administrative Agent, of the
event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by an
officer of a Lender, through the Administrative Agent, to the Company shall be
conclusive, in the absence of manifest error.
(b) In the
event that any Lender shall have determined that the adoption of any law, rule,
regulation or guideline adopted pursuant to or arising out of the International
Convergence of Capital Measurement and Capital Standards or of any Requirement
of Law otherwise regarding capital adequacy, or any change therein or in the
interpretation or application thereof or compliance by any Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any central bank or Governmental Authority, does or shall
have the effect of reducing the rate of return on such Lender’s capital as
a consequence of its obligations hereunder to a level below that which such
Lender could have achieved but for such adoption, change or compliance (taking
into consideration such Lender’s policies with respect to capital
adequacy) by an amount which is reasonably deemed by such Lender to be
material, then from time to time, promptly after submission by such Lender,
through the Administrative Agent, to the Company of a written request therefor,
the Company shall promptly pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) The
agreements in this Section
7.10 shall
survive the termination of this Agreement and payment of the Loans, the Notes
and all other amounts payable hereunder.
Section
7.11 Indemnity. The
Company agrees to promptly pay and indemnify each Lender for, and to hold such
Lender harmless from, any loss or expense which such Lender may sustain or
incur in its reemployment of funds obtained in connection with the making or
maintaining of, or converting to, Eurodollar Loans as a consequence of (a) any
default by the Company in borrowing such Eurodollar Loans after the Company has
given a notice in respect thereof or (b) any default by the Company in
converting Alternate Base Rate Loans to Eurodollar Loans after the Company has
given a notice in respect thereof or (c) any failure by the Company to prepay
Eurodollar Loans after the Company has given notice in respect thereof or (d)
any payment, prepayment (whether optional or mandatory) or conversion (whether
optional or mandatory) of any Eurodollar Loan by the Company on a day which is
not the last day of an Interest Period with respect thereto. A certificate as
to any additional amounts payable pursuant to this
Section 7.11
submitted by an officer of a Lender, through the Administrative Agent, to the
Company shall be conclusive, absent manifest error. The agreements in this
Section
7.11 shall
42
survive
termination of this Agreement and payment of the Loans, the Notes and all other
amounts payable hereunder.
Section
7.12 Taxes.
(a) All
payments made by the Company under this Agreement shall be made free and clear
of, and without reduction for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding, in the case of the Administrative
Agent, the Collateral Agent and each Lender, (i) income and franchise taxes
imposed on the Administrative Agent, the Collateral Agent or such Lender by the
jurisdiction under the laws of which it is organized or any political
subdivision or taxing authority thereof or therein, or by the jurisdiction of
the principal office of the Administrative Agent, the Collateral Agent or such
Lender or the office of such Lender from which it is making its Loans or any
political subdivision or taxing authority thereof or therein, and (ii) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause
(i) above
(all such non-excluded Taxes being called “Non-Excluded
Taxes”).
If any Non-Excluded Taxes are required to be withheld from any amounts payable
to the Administrative Agent, the Collateral Agent, or any Lender hereunder,
under the Notes or in respect of any Loan, the amounts so payable to it shall
(without any obligation on the part of the Company to pay such amounts ratably
in accordance with the provisions of
Section 7.5) be
increased to the extent necessary to yield to the Administrative Agent, the
Collateral Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement and the Notes. Whenever any Non-Excluded
Taxes or Other Taxes are payable by the Company, as promptly as possible
thereafter, the Company shall send to the Administrative Agent, for its own
account or for the account of the Collateral Agent, or such Lender, as the case
may be, a certified copy of an original official receipt showing payment
thereof. If the Company fails to pay any Non-Excluded Taxes or Other Taxes when
due to the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, the Company
shall indemnify the Administrative Agent, the Collateral Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent, the Collateral Agent or any Lender as a result of any
such failure.
(b) In
addition, the Company shall pay, or cause to be paid, any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Except
as the Company shall otherwise consent, each Lender hereby severally (but not
jointly) represents that, under applicable law and treaties in effect on the
date of this Agreement (or, in the case of a Transferee, the date such Person
became a Transferee), no United States federal taxes will be required to be
withheld by the Administrative Agent or the Company with respect to any
payments to be made to such Lender in respect of this Agreement. Each Lender or
Transferee which itself is not a U.S. person as defined in Section 7701(a)(30)
of the Code for federal income tax purposes or which is lending from an office
that is not incorporated under the laws of the United States of America or a
state thereof agrees severally (but not jointly) that it will:
(i) (1)
prior to
the Closing Date (or, in the case of a Transferee, prior to the date it becomes
a Transferee), deliver to the Company and the Administrative Agent two duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI, or successor applicable form, as the case may be, certifying in each
case that
43
such
Lender or Transferee is entitled to receive all payments under this Agreement
and the Notes, without deduction or withholding of any United States federal
income taxes;
(2) deliver
to the Company and the Administrative Agent two further copies of the such Form
W-8BEN or W-8ECI, or successor applicable form, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Company;
and
(3) use its
reasonable efforts to obtain such extensions or renewals thereof as may
reasonably be requested by the Company, certifying that such Lender or
Transferee is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income Non-Excluded
Taxes; or
(ii) in the
case of any such Lender or Transferee that is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, (i) represent to the
Company (for the benefit of the Company and the Administrative Agent) that it
is not a bank within the meaning of Section 881(c)(3)(A) of the Code, a
“10-percent
shareholder”
within the meaning of Section 881(c)(3)(B) of the Code or a controlled foreign
corporation receiving interest from a related person for purposes of Section
881(c)(3)(C) of the Code, (ii) agree to furnish to the Company on or before the
date of any payment by the Company, with a copy to the Administrative Agent,
(A) a certificate substantially in the form of Exhibit
Q hereto
(any such certificate a “U.S.
Tax Compliance Certificate”)
and (B) two accurate and complete original signed copies of United States
Internal Revenue Service Form W-8BEN, or successor applicable form certifying
to such Lender’s or Transferee’s legal entitlement at the date of
such certificate to an exemption from U.S. withholding tax under the provisions
of Section 881(c) of the Code with respect to payments to be made under this
Agreement (and to deliver to the Company and the Administrative Agent two
further copies of such form on or before the date it expires or becomes
obsolete and after the occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any extensions of time
reasonably requested by the Company or the Administrative Agent for filing and
completing such forms), and (iii) agree, to the extent legally entitled to do
so, upon reasonable request by the Company, to provide to the Company (for the
benefit of the Company and the Administrative Agent) such other forms as may be
reasonably required to establish the legal entitlement of such Lender or
Transferee to an exemption from withholding with respect to payments under this
Agreement;
unless
in any such case any change in law, rule, regulation, treaty or directive, or
in the interpretation or application thereof, has occurred prior to the date on
which any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Lender or Transferee from duly
completing and delivering any such form with respect to it and such Lender or
Transferee advises the Company that it is not capable of receiving payments
without any deduction or withholding of United States federal income tax.
Notwithstanding any provision of Section
7.12(a) to the
contrary, the Company shall have no obligation to pay any amount to or for the
account of any such Lender or Transferee on account of any Non-Excluded Taxes
pursuant to Section
7.12(a)
(including, without limitation, the second sentence thereof) to the extent that
such amount results from (i) the failure of any such Lender or Transferee to
comply with its obligations pursuant to this Section
7.12(c) or (ii)
any representation or warranty made or deemed to be made by any such Lender or
Transferee pursuant to this Section
7.12(c)
44
proving
to have been incorrect, false or misleading in any material respect when so
made or deemed to be made.
(d) Each
Lender agrees to use reasonable efforts (including reasonable efforts to change
the office in which it is booking its Loans) to avoid or to minimize any
amounts in respect of taxes which might otherwise be payable pursuant to
Section
7.10 or this
Section
7.12;
provided,
however, that
such efforts shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender to be material or
otherwise be deemed by such Lender to be disadvantageous to it or contrary to
its policies.
(e) In the
event that such reasonable efforts pursuant to Section
7.12(c)(i) are
insufficient to avoid all withholding taxes which would be payable pursuant to
this Section
7.12, then
such Lender (the “Taxable
Lender”)
shall use its reasonable efforts to transfer, at the cost of the Company, to
any other Lender (which is not subject to such withholding taxes) its Loans and
its Term Loan Commitment hereunder; provided,
however, that
such transfer shall not be deemed by such Taxable Lender, in its sole
discretion, to be disadvantageous to it or contrary to its policies. In the
event that the Taxable Lender is unable, or otherwise is unwilling, so to
transfer its Loans and Term Loan Commitment, the Company may, at its own cost,
designate an alternate bank or other financial institution to purchase the
Taxable Lender’s Loans and Term Loan Commitment and, subject to the
approval of the Administrative Agent (which approval shall not be unreasonably
withheld), the Taxable Lender shall transfer, at the cost of the Company, its
Loans and Term Loan Commitment to such alternate bank or other financial
institution and such alternate bank or other financial institution shall become
a Lender hereunder.
(f) The
agreements in this Section
7.12 shall
survive termination of this Agreement and payment of the Loans, the Notes and
all other amounts payable hereunder.
(g) If a
Lender or the Administrative Agent receives a refund in respect of any
Non-Excluded Taxes or Other Taxes with respect to which the Company has paid
additional amounts pursuant to this Section
7.12, it
shall within a reasonable time from the date of such receipt pay over the
amount of such refund to the Company, net of all reasonable out-of-pocket
expenses of such Lender or the Administrative Agent and without interest (other
than interest paid by the relevant taxation authority with respect to such
refund); provided,
however, that
the Company, upon the request of such Lender or the Administrative Agent,
agrees to repay the amount paid or portion thereof over to the Company (plus
penalties, interest or other reasonable charges) to such Lender or the
Administrative Agent in the event such Lender or the Administrative Agent is
required to repay such refund or portion thereof to such taxation
authority.
Section
7.13 [Intentionally
Omitted.]
Section
7.14 Computation
of Interest and Fees.
(a)
Interest in respect of the Alternate Base Rate Loans bearing interest at a rate
based upon clause
(a) of the
definition of “Alternate
Base Rate”
shall be calculated on the basis of a 365 or 366-day year, as the case may be,
for the actual days elapsed. Interest in respect of the Alternate Base Rate
Loans bearing interest at a rate based upon the Federal Funds Effective Rate
and the Eurodollar Loans shall be calculated on the basis of a 360-day year for
the actual days elapsed. The Administrative Agent will, as soon as practicable,
notify the Company and the Lenders of each determination of a Eurodollar Rate
and of any change in the Alternate Base Rate and the effective date thereof.
Any change in the interest rate on an Alternate Base Rate Loan resulting from a
change in the
45
Alternate
Base Rate shall become effective as of the opening of business on the day on
which such change shall become effective.
(b) Except
as set forth in Section
7.8, each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Company and
the Lenders, in the absence of manifest error.
Section
7.15 Pro
Rata Treatment and Payments.
(a) All
payments (including prepayments) to be made by the Company on account of
principal, interest and fees shall be made without set-off or counterclaim and
shall be made to the Administrative Agent for the account of the Lenders at the
office of the Administrative Agent specified in Section
14.2, or at
such other location as the Administrative Agent may direct, on or prior to 1:00
P.M., New York City time, in lawful money of the United States of America and
in immediately available funds. The Administrative Agent shall distribute such
payments in accordance with the provisions of Section
7.15(d)
promptly upon receipt in like funds as received.
(b) If any
payment hereunder (other than payments on Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment hereunder on a Eurodollar Loan becomes due and
payable on a day other than a Working Day, the maturity thereof shall be
extended to the next succeeding Working Day unless the effect of such extension
would be to extend such payment into another calendar month, in which event
such payment shall be made on the immediately preceding Working
Day.
(c) Unless
the Administrative Agent shall have been notified by telephone, confirmed in
writing, by any Lender prior to a borrowing date that such Lender will not make
the amount which would constitute its Commitment Percentage of the borrowing to
be made on such date available to the Administrative Agent on such borrowing
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent and, in reliance upon such assumption,
make available to the Company a corresponding amount. If such amount is made
available to the Administrative Agent on a date after such borrowing date, such
Lender shall pay to the Administrative Agent on demand an amount equal to the
product of (i) the daily average Federal Funds Effective Rate during such
period as determined by the Administrative Agent multiplied by (ii) such amount
multiplied by (iii) a fraction of which the numerator is the number of days
from and including such borrowing date to the date on which such amount becomes
immediately available to the Administrative Agent and of which the denominator
is 360. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph
(c) shall
be conclusive, in the absence of manifest error. If such amount is not in fact
made available to the Administrative Agent by such Lender within three Business
Days after such borrowing date, Administrative Agent shall be entitled to
recover such amount, with interest thereon at the rate per annum then
applicable to Alternate Base Rate Loans hereunder, within eight Business Days
after demand, from the Company.
(d) Unless a
Notice of Actionable Default has been delivered pursuant to the Intercreditor
Agreement, except as otherwise expressly set forth herein, all payments and any
other amounts received by the Administrative Agent from or for the benefit of
the Company shall be applied as follows: first, to pay
principal of, and interest on, any portion of the Loans the
46
Administrative
Agent may have advanced pursuant to the express provisions of this Agreement on
behalf of any Lender, for which the Administrative Agent has not then been
reimbursed by such Lender or the Loan Parties; second, to pay
fees and expenses of the Agents then due and payable; third, all
other Payment Obligations then due and payable; and fourth, as the
Company so designates. All such payments shall be allocated ratably among such
of the Agents and the Lenders as are entitled thereto.
(e) The
Company hereby irrevocably waives the right to direct the application of any
and all payments in respect of the Payment Obligations (including all funds
deposited in the Cash Concentration Account, any other Approved Deposit Account
or any Cash Collateral Account) after the occurrence and during the continuance
of an Event of Default and agrees that, notwithstanding the provisions of
Section
7.3,
Section
7.4 or
Section
7.15(d), after
the delivery of a Notice of Actionable Default and prior to the withdrawal of
all Notices of Actionable Default then pending pursuant to the Intercreditor
Agreement, (i) all payments made to or received by any Agent or Lender
constituting proceeds of Collateral shall be applied pursuant to the
Intercreditor Agreement and (ii) all other payments made to or received by any
Agent or Lender shall be applied in the following order:
(i) first, to pay
interest on and then principal of any portion of any Loans that any Agent may
have advanced on behalf of any Lender for which such Agent has not then been
reimbursed by such Lender or the Loan Parties;
(ii) second, to pay
Payment Obligations in respect of any expense reimbursements or indemnities
then due to the Agents;
(iii) third, to pay
Payment Obligations in respect of any expense reimbursements or indemnities
then due to the Lenders;
(iv) fourth, to pay
Payment Obligations in respect of any fees then due to the Agents;
(v) fifth, to pay
Payment Obligations in respect of any fees then due to the
Lenders;
(vi) sixth, to pay
interest then due and payable in respect of all Payment
Obligations;
(vii) seventh, to pay
or prepay principal payments (and, when applicable, to provide cash collateral)
for all Payment Obligations;
(viii) eighth, to pay
all other Payment Obligations; and
(ix) ninth, as
directed by the Company;
provided,
however, that
if sufficient funds are not available to fund all payments to be made in
respect of any of the Payment Obligations set forth in any of clauses
first through
eighth
above,
the available funds being applied with respect to any such Payment Obligation
(unless otherwise specified in such clause) shall be allocated to the payment
of such Payment Obligations ratably, based on the proportion of each
Agent’s and each Lender’s interest in the aggregate outstanding
Payment Obligations described in such clauses. The order of payment application
set forth in clauses
(i) through
(viii) above
may be amended at any time and from time to time by the
47
Required Lenders without any notice to or
consent of or approval by any Loan Party or any other Person that is not a
party to this Agreement; provided,
however, that any such amendment adversely affecting any Agent
shall also require the prior written consent of such Agent.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the
Administrative Agent and the Collateral Agent to enter into this Agreement and
to make the Loans hereunder, the Company hereby represents and warrants to each
of them that:
Section
8.1 Corporate Existence. Each Loan Party is duly organized, validly existing
and (to the extent applicable under the laws of the jurisdiction of its
organization) in good standing under the laws of the jurisdiction of its
incorporation, has the corporate (or other requisite legal) power to own its
assets and to transact the business in which it is presently engaged, and is
(to the extent applicable under the laws of the relevant jurisdiction) duly
qualified as a foreign corporation and (to the extent applicable under the laws
of the relevant jurisdiction) in good standing under the laws of each
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification and where all such failures to so qualify
and be in good standing would, in the aggregate, be reasonably likely to have a
Material Adverse Effect.
Section
8.2 Corporate Power. (a) Each Loan Party has the corporate power, authority
and legal right to execute, deliver and perform this Agreement and the other
Loan Documents to which it is a party and, in the case of the Company, to
borrow hereunder, and it has taken as of the Closing Date all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party and, in the case
of the Company, to authorize its borrowings on the terms and conditions of this
Agreement.
(b) No consent of
any other Person (including, without limitation, stockholders or creditors of
the Company or of any Parent of the Company), and no consent, license, permit,
approval or authorization of, exemption by, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement
and the other Loan Documents to which any Loan Party is a party by or against
such Loan Party, except for (i) filing of the Mortgages referred to in
Section 9.1(d), (ii) any filings required under the UCC, (iii) any
filings required to be made with the U.S. Patent and Trademark Office and the
U.S. Copyright Office, (iv) any filings, notices, consents, licenses, permits,
approvals, authorizations, registrations or declarations required under the
laws of jurisdictions other than the United States or any political subdivision
thereof in connection with the pledge of stock of Foreign Subsidiaries or any
assets located in, or created under, the laws of any such jurisdiction or
political subdivision and (v) any consents, licenses, permits, approvals or
authorizations, exemptions, registrations, filings or declarations that have
already been obtained and remain in full force and effect.
(c) This Agreement
has been, and the other Loan Documents to which it is a party will be, executed
and delivered by a duly authorized officer of each Loan Party. This Agreement
constitutes, and the other Loan Documents to which it is a party, when executed
and delivered by it and the other parties thereto, will constitute, the legal,
valid and binding obligations of each Loan Party, enforceable against it in
accordance with their respective terms
48
except as enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors’ rights generally and except as enforceability may be
limited by general principles of equity.
Section 8.3 No
Legal Bar to Loans. The execution,
delivery and performance by each Loan Party of each Loan Document to which it
is a party will not violate any Contractual Obligation or material Requirement
of Law to which such Loan Party is a party, or, to the best knowledge of the
Company, any Parent of the Company is a party or by which such Loan Party or,
to the best knowledge of the Company, any Parent of the Company or any of their
respective material properties or assets may be bound, and will not result in
the creation or imposition of any Lien (other than under the Security Documents
or as contemplated by the Intercreditor Agreement) on any of their respective
material properties or assets pursuant to the provisions of any Contractual
Obligation.
Section 8.4 No
Material Litigation. No litigation,
investigation or administrative proceeding of or before any court, arbitrator
or Governmental Authority is presently pending or, to the knowledge of any Loan
Party, threatened against it, any of the other Loan Parties, or any of its or
their properties or assets, (a) with respect to this Agreement, any other Loan
Document or any of the transactions contemplated hereby or thereby, (b) with
respect to the validity or enforceability of the obligations of the Company or
any Loan Party under this Agreement and the other Loan Documents to which it is
a party or (c) which would be reasonably likely to have a Material Adverse
Effect, except (in the case of this clause (c) only)
for any litigation, investigation or administrative proceeding which has been
disclosed in any of the Company’s or Revlon’s public filings with the
Securities and Exchange Commission including its Form 10-K for the fiscal year
ended December 31, 2005 and its reports on Form 10-Q for the fiscal quarter
ended September 30, 2006 or which arises out of the same facts and
circumstances, and alleges substantially the same complaints and damages, as
any litigation, investigation or proceeding so disclosed and in which there has
been no material adverse change since the date of such disclosure.
Section 8.5 No
Default. Neither the Company nor
any of its Subsidiaries is in default in any material respect in the payment or
performance of any material obligations or in the performance of any
Contractual Obligation to which it is a party or by which it or any of its
material properties or assets may be bound, and no Default hereunder has
occurred and is continuing. Neither the Company nor any of its Subsidiaries is
in default under any material order, award or decree of any court, arbitrator
or Governmental Authority binding upon or affecting it or by which any of its
material properties or assets is bound or affected, and no such order, award or
decree would be reasonably likely to have a Material Adverse Effect.
Section
8.6 Ownership of Properties; Liens. Except as is or would be permitted pursuant to
Section 11.3, the Company and its Subsidiaries has (a) good and
marketable title to all its owned, and valid leasehold interests in all its
leased, real property and (b) good title to all its owned, and valid leasehold
interests in all its leased, personal properties and assets, in each case
subject to no Lien.
Section
8.7 Taxes.
(a) The Company and each of its Subsidiaries and, to the best knowledge of the
Company, any other member (as such term is defined in Treasury Regulations
§1.1502-1(b), or any similar provision of state, local or foreign law) of
the consolidated, combined or unitary group (if any) of which the Company is or
was a member, has timely filed or caused to be timely filed all material tax
returns (including, without limitation, information returns) which are required
to be filed, and have paid all material taxes (whether or
49
not shown to be due and payable on such
returns) or on any assessments made against them (other than those being
contested in good faith by appropriate proceedings for which adequate reserves
(in accordance with GAAP) have been provided on the books of the Company or
such Subsidiary, or other member of the consolidated, combined or unitary
group, as the case may be), and no tax Liens which violate Section 11.3(a)
have been filed. As of the date hereof, the period within which United States
federal income taxes may be assessed against the Company and each of its
Subsidiaries has expired without further extension or waiver for all taxable
years ending on or before December 31, 2002.
(b) The Company does
not intend to treat the Loans and the related transactions contemplated hereby
as being a “reportable
transaction” (within the meaning
of Treasury Regulation Section 1.6011-4).
Section
8.8 ERISA.
No Reportable Event has occurred during the immediately preceding six-year
period with respect to any Plan that resulted or would be reasonably likely to
result in any unpaid liability that would be reasonably likely to have a
Material Adverse Effect, and each Plan (other than any Multiemployer Plan or
any multiemployer health or welfare plan) has complied and has been
administered in compliance with applicable provisions of ERISA and the Code
except for such non-compliance that would not be reasonably likely to have a
Material Adverse Effect. The amount by which (a) the present value of all
accrued benefits under each Single Employer Plan maintained by the Company or
any Commonly Controlled Entity (based on then current assumptions used to fund
such Plan, except that the liability discount rate shall instead be the
reasonable expected long term rate of return on plan assets used in the
Company’s annual audited financial statements), as of the last annual
valuation date applicable thereto (except with regard to the long term rate of
return on plan assets, such rate used in the Company’s annual audited
financial statements for the Company’s last fiscal year ending on or
before such valuation date), exceeds (b) the value of the assets of each such
Plan allocable to such benefits, in the aggregate for all such Plans as to
which such present value of accrued benefits exceeds the value of its assets
(the “Unfunded Pension Amount”), when aggregated with the Potential
Withdrawal Liability (as hereinafter defined), is less than $70,000,000.
Neither the Company nor any Commonly Controlled Entity has during the
immediately preceding six-year period had a complete or partial withdrawal from
any Multiemployer Plan that resulted or would be reasonably likely to result in
any unpaid withdrawal liability under Section 4201 of ERISA that would be
reasonably likely to have a Material Adverse Effect. The “Potential
Withdrawal Liability” shall mean the withdrawal liability under Section
4201 of ERISA to which the Company or any Commonly Controlled Entity would
become subject under ERISA if the Company or any Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the most recent
valuation date applicable thereto. Neither the Company nor any Commonly
Controlled Entity has received notice that any Multiemployer Plan is in
Reorganization or Insolvent where such Reorganization or Insolvency has
resulted, or would be reasonably likely to result in an unpaid liability that
would be reasonably likely to have a Material Adverse Effect nor, to the best
knowledge of the Company, is any such Reorganization or Insolvency reasonably
likely to occur.
Section
8.9 Financial Condition. The audited consolidated balance sheets of the Company
and its Subsidiaries as at December 31, 2003, December 31, 2004 and December
31, 2005 and the related audited consolidated statements of operations and
stockholders’ equity and cash flows for the fiscal years ended on such
dates and the notes thereto present fairly the consolidated financial condition
of the Company and its Subsidiaries as of such dates, and the consolidated
results of their operations and cash flows for the fiscal years then ended. The
unaudited consolidated condensed balance sheet of the Company and its
Subsidiaries as at
50
September 30, 2006 and the related unaudited
consolidated condensed statements of operations and stockholders’ equity
and cash flows for the period ended on such date and the notes thereto present
fairly the consolidated financial condition of the Company and its Subsidiaries
as of such date, and the consolidated results of their operations and cash
flows for the period then ended (subject to normal year-end audit adjustments
and the absence of footnotes). All such financial statements, have been
prepared in accordance with GAAP (subject, in the case of the interim financial
statements, to normal year-end audit adjustments and the absence of footnotes)
applied consistently throughout the periods presented except as disclosed in
such financial statements and the notes thereto. Neither the Company nor any of
its Subsidiaries has any material Contingent Obligation or any material
obligation, liability or commitment, direct or contingent (including, without
limitation, any liability for taxes or any material forward or long-term
commitment), which is not (A) reflected in the foregoing statements and the
notes thereto or (B) permitted to be incurred under this Agreement.
Section 8.10 No
Change. Since December 31, 2005,
there has been no material adverse change in the business, condition (financial
or otherwise), operations, performance, properties or prospects of either of
(a) Revlon or (b) the Company and its Subsidiaries taken as a whole (it being
understood that nothing set forth in the Form 10-Q’s of the Company for
the fiscal quarters ended March 31, 2006, June 30, 2006 and September 30, 2006
filed with the SEC or the Form 8-K’s of the Company filed with or
furnished to the SEC prior to the date hereof during fiscal year 2006
constitutes, either individually or in the aggregate, such a material adverse
change).
Section
8.11 Federal Regulations. Neither the Company nor any of its Subsidiaries is
engaged or will engage, principally or as one of its important activities, in
the business of extending credit for the purpose of “purchasing” or “carrying”
any “margin stock” within the respective meanings of each of the
quoted terms under Regulation U of the Board of Governors of the Federal
Reserve System. No part of the proceeds of the Loans or other extensions of
credit hereunder will be used for any purpose which violates the provisions of
Regulation U or X of such Board of Governors. In the event that any part of the
proceeds of the extensions of credit hereunder are used to
“purchase” or “carry” any
such “margin stock,” the Company will (and will cause its Subsidiaries
to) provide such documents and information (including, without limitation, duly
completed and executed originals of Federal Reserve Form G-3 or U-1) to the
Administrative Agent and the Lenders as the Administrative Agent reasonably may
request in order to evidence that the representations and warranties contained
in this Section 8.11 remain true and correct in all material
respects.
Section
8.12 Investment Company Act; PUHCA. None of Revlon, the Company or any Subsidiary of the
Company is (a) an “investment
company” or an
“affiliated person” of, or “promoter”
or “principal
underwriter” for, an
“investment company”, as each such term is defined and used in the
Investment Company Act of 1940, as amended, or (b) a “holding company” or an “affiliate”,
a “holding company” or a “subsidiary company” of a “holding company”, as each such term is defined and used in the
Public Utility Holding Company Act of 2005, 42 U.S.C. §§ 16457
et seq., as amended.
Section
8.13 Company Information; Matters Relating to
Subsidiaries.
(a) Schedule 8.13(a) sets forth as of the Closing Date the name, address of
principal place of business and taxpayer identification number of the
Company.
51
(b) Set forth in
Schedule 8.13(b) is a complete and accurate list showing all
Subsidiaries of Revlon and the Company as of the date of this Agreement and, as
to each such Subsidiary, the jurisdiction of its organization, the percentage
of the outstanding shares of stock owned (directly or indirectly) by the
Company and the direct parent thereof.
Section
8.14 Mortgages. Each Mortgage is effective to grant a legal, valid and
enforceable mortgage lien on all of the mortgagor’s right, title and
interest in the Mortgaged Property thereunder. When each Mortgage is duly
recorded in the appropriate county office or offices and the mortgage recording
fees and taxes in respect thereof are paid and compliance is otherwise had with
the formal requirements of state law applicable to the recording of real estate
mortgages generally, such Mortgage shall constitute a fully perfected,
second-priority lien on and security interest in such Mortgaged Property,
subject only to Customary Permitted Liens, Liens securing the Multi-Currency
Payment Obligations and Designated Eligible Obligations as provided in the
Intercreditor Agreement and such Liens, defects and encumbrances as may be
approved by the Designated Administrative Agent and except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors’ rights generally and by
general equitable principles.
Section
8.15 Solvency. (a) The aggregate value of all of the assets of the
Company on a consolidated and an unconsolidated basis, at a fair valuation,
exceeds the total liabilities of the Company on a consolidated and an
unconsolidated basis (including contingent, subordinated, unmatured and
unliquidated liabilities). The Company has the ability to pay its debts as they
mature and it does not have unreasonably small capital with which to conduct
its business. For purposes of this Section 8.15,
the “fair valuation” of such assets shall be determined on the basis
of that amount which may be realized within a reasonable time, in any manner
through realization of the value of or dispositions of such assets at the
regular market value, conceiving the latter as the amount which could be
obtained for the property in question within such period by a capable and
diligent business person from an interested buyer who is willing to purchase
under ordinary selling conditions.
(b) The Company is in
compliance with all material Requirements of Law applicable to it with respect
to capitalization and, to the knowledge of the Company, has sufficient capital
with which to conduct its business in accordance with past practice.
Section
8.16 Environmental Matters. (a) Except as set forth in Schedule 8.16 hereto, and except to the extent provided in
clause (b) below:
(i) the Mortgaged
Properties do not contain any Hazardous Materials in concentrations which
violate any applicable Environmental Laws governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials;
(ii) the Mortgaged
Properties are in compliance with all Environmental Laws, including all
applicable federal, state and local standards and requirements regarding the
generation, treatment, storage, handling, use or disposal of Hazardous
Materials at the Mortgaged Properties and there is no Hazardous Materials
contamination which could materially interfere with the continued operation of
the Mortgaged Properties or materially impair the fair saleable value
thereof;
(iii) none of the
Company or any Subsidiary of the Company has received, or is aware of, any
existing or contemplated notice of violation or potential liability by any
52
regulatory agency or Person regarding
environmental control matters or permit compliance with regard to the Mortgaged
Properties;
(iv) Hazardous
Materials have not been transferred from the Mortgaged Properties to any other
location in violation of any applicable Environmental Laws and the Company has
not received notice of any potential liability associated with such transferred
materials; and
(v) there are no
administrative actions or judicial proceedings by a Governmental Authority or
other Person pending or contemplated under any applicable Environmental Laws to
which the Company, any Subsidiary of the Company or any mortgagor is or will be
named as a party with respect to the Mortgaged Properties.
(b) Each of the
representations and warranties set forth in Section 8.16(a)
are true and correct with respect to each parcel of real property owned or
operated by the Company or any of its Subsidiaries, except to the extent that
individually or in the aggregate with all items set forth on Schedule 8.16
and the facts and circumstances giving rise to any such failure to be so true
and correct would not be reasonably likely to have a Material Adverse
Effect.
(c) The Company and
any Subsidiary of the Company is in compliance with Environmental Laws and is
not aware of any facts, circumstances or conditions relating to the Company,
any Subsidiary of the Company or any real property currently or formerly owned,
operated or leased by the Company or any Subsidiary of the Company that would
result in the Company or any Subsidiary incurring liability under Environmental
Laws, except for such noncompliance or liability which individually or in the
aggregate would not be reasonably likely to have a Material Adverse
Effect.
Section
8.17 Models.
(a) The financial models and pro
forma financial statements referenced in Section 9.1(j),
together with any notes thereto, were prepared in good faith on the basis of
the assumptions stated therein, which assumptions were reasonable in light of
conditions existing at the time of delivery of such models and pro
forma financial statements, and represented, at the time of
delivery, the Company’s best estimate of its future financial
performance.
(b) After giving
effect to the transactions contemplated by this Agreement, the Company and its
Subsidiaries will have recorded assets and liabilities substantially similar to
the recorded assets and liabilities contemplated for such date by the pro forma
balance sheet referenced in Section
9.1(j).
(c) The financial
models (if any) relating to the Company and provided to each Lender pursuant to
Section 10.1(b), together with any notes thereto, were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were
reasonable in light of conditions existing at the time of delivery of such
models and represented, at the time of delivery, the Company’s best
estimate of its future financial performance.
Section
8.18 Disclosure. No information, schedule, exhibit or report or other
document furnished by the Company, its Subsidiaries or Affiliates to any Agent
or any Lender in connection with the negotiation of this Agreement and the
Security Documents or pursuant to the terms of this Agreement and the Security
Documents, as such information, schedule, exhibit or report or other document
has been amended, supplemented or superseded by any other information,
schedule, exhibit or report or other document later delivered to the same
parties
53
receiving such information, schedule,
exhibit or report or other document, contained any material misstatement of
fact or omitted to state a material fact or any fact necessary to make the
statements contained therein, in light of the circumstances when made, not
materially misleading.
Section
8.19 Senior Indebtedness. The Payment Obligations of the Company constitute
“Senior Debt” (or any analogous term) for purposes of the
Subordinated Notes and any Indebtedness issued pursuant to Section 11.2(b)(vi)(A), the Net Proceeds of which are used to refinance
Indebtedness under the Subordinated Notes Indenture.
Section
8.20 Regulation H. No Mortgaged Property is located in an area that has
been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968.
Section
8.21 Affiliate Obligations. Other than trade payables, other Indebtedness in the
ordinary course of business or any interest payable from time to time in
respect of and in accordance with the terms of any such Indebtedness, no
Indebtedness is owing to the Company or any of its Subsidiaries from the
Affiliates of the Company on the Closing Date, other than amounts permitted
pursuant to Section
11.8(f).
Section
8.22 Indebtedness Owing to
Affiliates. No Affiliate of the
Company (other than officers and directors of the Company and its Subsidiaries)
holds any Indebtedness of the Company or any of its Subsidiaries (not including
(i) any trade credit in the ordinary course of business, (ii) any Capital
Contribution Note, (iii) any Indebtedness in respect of the M&F Loans, (iv)
any Indebtedness permitted under Section
11.2(o) or (v) any Indebtedness of the
Company or any of its Subsidiaries of a class that is publicly held or issued
pursuant to a Rule 144A offering, including Indebtedness issued under an
Indenture), except to the extent that such Affiliate has duly executed and
delivered to the Administrative Agent an Affiliate Subordination Letter which
remains in full force and effect.
ARTICLE II
CONDITIONS PRECEDENT
Section
9.1 Conditions to Extensions of
Credit. The agreement of the
Lenders to make the extensions of credit requested to be made by it hereunder
and the effectiveness of this Agreement shall be subject to the satisfaction or
waiver by such Lender (except to the extent set forth in Section 10.16)
of the following conditions precedent (the date on which such conditions are
satisfied or waived being herein called the “Closing Date”):
(a) Execution of Agreement. This Agreement shall have become binding upon the
parties hereto in accordance with Section 14.12.
(b) Notes. The
Administrative Agent shall have received for the account of each Lender which
has so requested, a Term Loan Note conforming to the requirements hereof and
executed and delivered by a duly authorized officer of the Company.
(c) Guaranty; Pledge and Security Agreement. The Administrative Agent shall have received the
Guaranty, duly executed by each Guarantor and the Pledge and Security
Agreement, duly executed by the Company and each Guarantor, together with each
of the following:
54
(i) evidence
satisfactory to the Administrative Agent that, upon the filing and recording of
instruments delivered on the Closing Date, the Collateral Agent (for the
benefit of the Secured Parties) shall have a valid and perfected security
interest in the Collateral, including such documents duly executed by each Loan
Party as the Administrative Agent may request with respect to the perfection of
the Collateral Agent’s security interests in the Collateral (including
financing statements under the UCC, patent, trademark and copyright security
agreements suitable for filing with the U.S. Patent and Trademark Office or the
U.S. Copyright Office, as the case may be, and other applicable documents under
the laws of the United States and the United Kingdom and any political
subdivision thereof with respect to the perfection of Liens created by the
Pledge and Security Agreement);
(ii) all
certificates, instruments and other documents representing all Pledged Stock
being pledged pursuant to such Pledge and Security Agreement and stock powers
for such certificates, instruments and other documents executed in blank;
(iii) all
instruments representing Pledged Debt Instruments being pledged pursuant to
such Pledge and Security Agreement duly endorsed in favor of the Collateral
Agent or in blank; and
(iv) all Deposit
Account Control Agreements, duly executed by the corresponding Deposit Account
Bank and Loan Party, that, in the reasonable judgment of the Administrative
Agent, shall be required for the Loan Parties to comply with Section 10.19.
(d) Mortgages. The
Administrative Agent shall have received (i) Mortgages for the Real Property
identified on Schedule
9.1(d) in form and substance reasonably
satisfactory to the Administrative Agent, duly executed and delivered by a duly
authorized officer of the Company, and (ii) all Mortgage Supporting Documents
relating thereto.
(e) Lien Searches.
The Administrative Agent shall have received the results of Lien searches as of
a recent date, conducted by a search service reasonably satisfactory to the
Administrative Agent, and the Administrative Agent shall be satisfied that no
Liens are outstanding on the property or assets of any Loan Party, other than
any such Liens (i) which are permitted pursuant to the terms of the Loan
Documents or (ii) as to which the Administrative Agent have received
documentation reasonably satisfactory to it evidencing the termination or
concurrent termination of such Liens.
(f) Corporate Proceedings. The Administrative Agent shall have received (a)
certified copies of the Charter and by-laws (or analogous organizational
documents) of the Company and each Loan Party and (b) the resolutions (or
analogous authorizations), in form and substance reasonably satisfactory to the
Administrative Agent, of the Board of Directors of the Company and each Loan
Party, authorizing in each case the execution, delivery and performance of this
Agreement, the Notes and the other Loan Documents to which the Company or such
Loan Party is a party, in each case certified by the Secretary or an Assistant
Secretary of the Company or such Loan Party as of the Closing Date and each
such certificate shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded as of the date of such
certificate.
(g) Incumbency Certificates. The Administrative Agent shall have received a
certificate of the Secretary or an Assistant Secretary (or analogous officer)
of the Company and
55
each Loan Party dated the Closing Date, as
to the incumbency and signature of the officers of the Company and such Loan
Party executing each of this Agreement, the Notes and each other Loan Document
to which the Company and such Loan Party is a party, and any certificate or
other documents to be delivered by it pursuant thereto, together with evidence
of the incumbency of such Secretary or Assistant Secretary as the case may
be.
(h) Certain Legal Opinions. The Administrative Agent shall have received executed
legal opinions of:
(i) Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx LLP, as counsel to the Company, substantially
in the form of Exhibit
L-1;
(ii) the Executive
Vice President, Chief Legal Officer and General Counsel of the Company,
substantially in the form of Exhibit
L-2;
(iii) Weil, Gotshal
& Manages LLP, as counsel to the Administrative Agent, substantially in the
form of Exhibit L-3; and
(iv) each of the
domestic local counsel listed on Schedule 9.1(h)(iv), in form and substance reasonably acceptable to the
Administrative Agent.
Each of the foregoing legal opinions shall
be accompanied by copies of the legal opinions, if any, upon which such counsel
rely, and in each case shall contain such changes thereto as may be approved
by, and as shall otherwise be in form and substance reasonably satisfactory to,
the Administrative Agent and shall cover such other matters incident to the
transactions contemplated by the Loan Documents as the Administrative Agent may
reasonably require. Each of the counsel delivering the foregoing legal opinions
is expressly instructed to deliver its opinion for the benefit of each of the
Administrative Agent, the Collateral Agent and each Lender.
(i) Fees. The
Administrative Agent shall have received or shall concurrently receive, for the
accounts of the Lenders, each Agent and the Arranger, all accrued fees and
expenses owing hereunder or in connection herewith to such Persons (including,
without limitation, accrued fees and disbursements of primary counsel, local
counsel and special counsel to the Administrative Agent and the Collateral
Agent), to the extent that such fees and expenses have been presented for
payment a reasonable time prior to the Closing Date.
(j) Financial Models. The Administrative Agent shall have received
consolidated financial models prepared by the Company’s management
(including, without limitation, projections on a quarterly basis for the first
twelve months after the Closing Date and an annual basis thereafter through the
Company’s 2011 fiscal year) and pro
forma financial statements relating to the Company and its
Subsidiaries (which financial models and pro
forma consolidated financial statements shall be in form and
substance reasonably satisfactory to the Administrative Agent), certified by a
Responsible Officer of the Company as (i) being the financial models and
pro forma financial
statements referenced in Section
8.17(a) and (ii) having been delivered
to each Lender prior to the date of execution by such Lender of this
Agreement.
(k) Financial Statements. The Administrative Agent shall have received copies of
the financial statements referenced in Section 8.9.
(l) Compliance with Indentures. The making of the extensions of credit hereunder and
the granting of the Liens under the Security Documents shall not violate any
56
provisions of the Indentures, and the
Administrative Agent shall have received a certificate of a Responsible Officer
of the Company (which certificate shall be in form and substance reasonably
satisfactory to the Administrative Agent) certifying that the transactions
contemplated hereby do not necessitate the sharing (on an equal and ratable
basis or otherwise) of collateral security granted pursuant to the Security
Documents with any trustee or holder of Indebtedness under the
Indentures.
(m) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal, diligence and financial matters in
connection with the transactions contemplated by the Loan Documents shall be
reasonably satisfactory in form and substance to the Administrative Agent and
its counsel.
(n) Intercreditor Agreement. The Administrative Agent shall have received the
Intercreditor Agreement, duly executed and delivered by duly authorized
officers of each of the parties thereto.
(o) Solvency Certificate. The Administrative Agent shall have received a
solvency certificate, in the form attached hereto as Exhibit R from
the Chief Financial Officer of the Company.
(p) USA Patriot Act.
Each of the Lenders shall have received, sufficiently in advance of the Closing
Date, all documentation and other information required by the applicable
Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations,
including without limitation the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”).
(q) Term Loans Outstanding under the Existing Credit
Agreement. (i) All obligations
(including interest and principal, fees and expenses) in respect of the term
loans under the Existing Credit Agreement shall have been repaid in full, and
(ii) the Effective Date (as defined in Amendment No. 4 to the Existing Credit
Agreement) has occurred.
(r) Debt Rating Condition. The Term Loan Facility shall be rated by S&P and
by Xxxxx’x, both of which ratings shall remain in effect on the Closing
Date.
(s) Insurance. The
Administrative Agent shall have received evidence reasonably satisfactory to
them that the insurance policies required by Section 10.5 and
any Collateral Document are in full force and effect, together with
endorsements naming the Collateral Agent, on behalf of the Secured Parties, as
an additional insured or loss payee under all insurance policies to be
maintained with respect to the properties of the Company and its
Subsidiaries.
(t) Representations and Warranties. Each of the representations and warranties made by
each party to each Loan Document in or pursuant to this Agreement or any other
Loan Document, or contained in any certificate or financial statement (other
than estimates and projections which are (x) identified as such and (y)
contained in any financial statement) furnished at any time under or in
connection with this Agreement or any other Loan Document shall be true and
correct in all material respects on and as of the Closing Date as if made on
and as of such date (except to the extent that such representations and
warranties relate to a particular date, in which case such representations and
warranties shall be true and correct in all material respects on and as of such
date), both before and after giving effect to the Loans, and the use of the
proceeds thereof.
57
(u) No
Default. No
Event of Default and no Default shall have occurred and be continuing on the
Closing Date, before and after giving effect to the Loans requested to be made
on such date.
(v) The
Administrative Agent shall have received reasonably satisfactory evidence that
the Parent shall have commenced an equity offering of its Class A Common Stock
with intended gross cash proceeds of at least $100,000,000, such as by mailing
a prospectus supplement if such equity offering is conducted pursuant to a
rights offering.
Section
9.2 Conditions
to Each Term Facility Increase. Each
Term Facility Increase shall not become effective prior to the satisfaction of
all of the following conditions precedent:
(a) Certain
Documents. The
Administrative Agent shall have received on or prior to the Term Facility
Increase Date for such Term Facility Increase each of the following, each dated
such Term Facility Increase Date unless otherwise indicated or agreed to by the
Administrative Agent and each in form and substance satisfactory to the
Administrative Agent:
(i) written
commitments duly executed by existing Lenders (or their Affiliates or Related
Funds) or Eligible Assignees in an aggregate amount equal to the amount of the
proposed Term Facility Increase (as agreed between the Company and the
Administrative Agent but in any case not to exceed, in the aggregate for all
such Term Facility Increases, the maximum amount set forth in Section
2.6(a) and, in
the case of each such Eligible Assignee or Affiliate or Related Fund that is
not an existing Lender, an assumption agreement in form and substance
satisfactory to the Administrative Agent and duly executed by the Company, the
Administrative Agent and such Affiliate, Related Fund or Eligible
Assignee;
(ii) an
amendment to this Agreement (including to Schedule
II),
effective as of the Term Facility Increase Date and executed by the Company and
the Administrative Agent, to the extent necessary to implement terms and
conditions of the Term Facility Increase as agreed by the Company and the
Administrative Agent;
(iii) certified
copies of resolutions of the Board of Directors of the Company and each
Guarantor approving the consummation of such Term Facility Increase and the
execution, delivery and performance of the corresponding amendments to this
Agreement and the other documents to be executed in connection
therewith;
(iv) a
favorable opinion of counsel for the Company and each Guarantor, addressed to
the Administrative Agent and the Lenders and in form and substance and from
counsel reasonably satisfactory to the Administrative Agent; and
(v) such
other documents as the Administrative Agent may reasonably request or as any
Lender participating in such Term Facility Increase may require as a condition
to its commitment in such Term Facility Increase.
(b) Fee
and Expenses Paid. There
shall have been paid to the Administrative Agent, for the account of the
Administrative Agent and the Lenders participating in such Term Facility
Increase on such Term Facility Increase Date, as applicable, all fees and
expenses (including reasonable fees and expenses of counsel) due and payable on
or before the Term Facility Increase Date.
58
(c) Other
Conditions. (i)
The conditions precedent set forth in Section
9.1(t) and (u)
shall
have been satisfied both before and after giving effect to such Term Facility
Increase and (ii) such Term Facility Increase shall be made on the terms and
conditions set forth in Sections
2.6.
AFFIRMATIVE
COVENANTS
The
Company hereby agrees that, until the Payment Obligations have been Fully
Satisfied:
Section
10.1 Financial
Statements. The
Company will furnish to each Lender, through the Administrative
Agent:
(a) as soon
as available, but in any event within 90 days after the end of each fiscal year
of the Company, a copy of the consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year and the related consolidated
statements of operations and stockholders’ equity and cash flows for such
year, setting forth in each case in comparative form (to the extent that such
information has not previously been provided to the Lenders in form
substantially similar to that required pursuant to this Section
10.1(a)) the
figures for the previous year, certified without a “going
concern”
or like qualification or exception, or qualification arising out of the scope
of the audit, by KPMG LLP or other independent certified public accountants of
nationally recognized standing reasonably acceptable to the Administrative
Agent;
(b) as soon
as available, but in any event within 90 days after the end of each fiscal year
of the Company, a copy of (i) the annual business plan of the Company and its
Subsidiaries for the next succeeding fiscal year, including model quarterly
balance sheets and statements of operations and of cash flow, (ii) a two-year
model (including, without limitation, model annual balance sheets and
statements of operations and of cash flow) for the Company and its Subsidiaries
and (iii) a two-year model (including, without limitation, model annual balance
sheets and statements of operations and of cash flow) for Revlon and its
Subsidiaries, and all of the foregoing shall be in form and detail reasonably
satisfactory to the Administrative Agent and shall be certified by a
Responsible Officer of the Company; and
(c) as soon
as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Company, a copy of (i)
the unaudited consolidated, condensed balance sheets of the Company and its
Subsidiaries as at the end of each such quarter, (ii) the related unaudited
consolidated, condensed statements of operations and of cash flows for the
portion of the fiscal year through such date and (iii) the related unaudited
consolidated, condensed statements of operations for such quarterly period,
setting forth in each case in comparative form (to the extent that such
information has not previously been provided to the Lenders in form
substantially similar to that required pursuant to this Section
10.1(c)) the
figures for the corresponding fiscal period of the previous year (other than
the balance sheets, which shall present such corresponding figures at the last
day of the previous fiscal year), certified (subject to normal year-end audit
adjustments) by a Responsible Officer of the Company;
all such
financial statements to be prepared in reasonable detail and (except as
approved by such accountants or Responsible Officer, as the case may be, and
disclosed therein) in accordance with
59
GAAP
applied consistently throughout the periods reflected therein (subject, in the
case of interim periods, to normal year-end adjustments and the absence of
notes).
Section
10.2 Certificates;
Other Information. The
Company will furnish to each Lender, through the Administrative
Agent:
(a) concurrently
with the delivery of its financial statements referred to in Section
10.1(a), a
certificate of the independent certified public accountants certifying such
financial statements, to the extent available pursuant to the policies and
procedures of such independent certified public accountants, stating that in
making the examination necessary therefor, no knowledge was obtained of any
Default or Event of Default with respect to Section
11.1, except
as specified in such certificate (which certificate may be limited by
applicable accounting rules or guidelines);
(b) concurrently
with the delivery of its financial statements referred to in Section
10.1(a) and
(c), a
certificate of a Responsible Officer of the Company, substantially in the form
of Exhibit
M (Form of Compliance Certificate) and if
such certificate demonstrates an Event of Default of the covenant contained in
Section
11.1, the
Company may deliver together with such certificate, notice of its intent to
cure (a “Notice
of Intent to Cure”)
such Event of Default pursuant to Section
12.2;
(c) within
five days after the same are sent, copies of all financial statements and
reports which the Company or any of its Subsidiaries and any Parent of the
Company sends to holders of its publicly traded debt or equity securities, and
within five days after the same are filed, copies of all financial statements
and reports (including copies of all registration statements, proxy statements
and regular and periodic reports, if any) which any of such Persons may make
to, or file with, the Securities and Exchange Commission or any successor
thereto;
(d) within
10 days following the last day of each fiscal quarter of the Company
(commencing with the fiscal quarter ended December 31, 2006), a schedule
listing (i) all Subsidiaries of the Company as of the last day of the fiscal
quarter most recently ended, (ii) all Subsidiaries of the Company which have
been acquired or created during the fiscal quarter then ended and (iii) all
Persons which have ceased to be Subsidiaries of the Company during such prior
fiscal quarter of the Company;
(e) at least
10 days prior to the issuance thereof, a certificate of a Responsible Officer
of the Company as to the issuance of any letter of credit permitted by
Section
11.2(m), which
certificate shall include (i) the amount of such letter of credit (including,
with respect to any such letter of credit that is denominated in a currency
other than Dollars, the Equivalent in Dollars thereof), (ii) the stated expiry
date thereof, (iii) the issuer thereof and (iv) the beneficiary
thereof;
(f) promptly
after the delivery of the same to the M&F Lender, any request for a
borrowing of a M&F Loan; and
(g) promptly,
such additional documents and financial and other information (including,
without limitation, amendments to the Certificate of Incorporation and By-Laws
of such Person) relating to REV Holdings and its Subsidiaries (or, at any time
when REV Holdings ceases to have any significant Indebtedness, Revlon and its
Subsidiaries) as any Agent, or any Lender acting through the Administrative
Agent, may from time to time reasonably request.
60
Section
10.3 Payment
of Obligations. The
Company will, and will cause each of its Subsidiaries to, pay, discharge or
otherwise satisfy at or (to the extent not otherwise prohibited hereunder)
before maturity or before they become delinquent, as the case may be, all its
Indebtedness and other material obligations of whatever nature, except when the
amount or validity thereof is then being contested in good faith by appropriate
proceedings and reserves with respect thereto to the extent, if any, required
by GAAP have been provided on the books of the Company or such Subsidiary, as
the case may be. Notwithstanding anything to the contrary in the foregoing
sentence, the Company shall not be in default under this Section
10.3 unless
the aggregate amount of non-contested Indebtedness or obligations which it and
its Subsidiaries have so failed to pay, discharge or satisfy before they become
delinquent and which remain delinquent at the time of determination is more
than $10,000,000 (or, with respect to any other currency, the Equivalent
thereof) in the aggregate.
Section
10.4 Conduct
of Business and Maintenance of Existence. Except
as permitted by this Agreement, the Company will continue to engage in business
of the same general type as now conducted by it; and, except as permitted by
this Agreement, the Company will, and will cause each of its Subsidiaries to,
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except as
otherwise permitted pursuant to Sections 11.5 and
11.6, and
comply with all Contractual Obligations and Requirements of Law except to the
extent that all failures to comply therewith would not in the aggregate, be
reasonably likely to have a Material Adverse Effect. The Company will not make
any material change in its present method of conducting business. The Company
will cause each of its Subsidiaries to engage primarily in no business other
than the business of developing, manufacturing, distributing and/or selling
(including marketing and advertising) beauty, skin care, fragrance, personal
care and/or related products (or of holding properties incidental to such
businesses).
Section
10.5 Maintenance
of Property; Insurance. The
Company will, and will cause each of its Subsidiaries to, (a) keep all property
useful and necessary in its business in good working order and condition,
except where the failure to do so would not, in the aggregate, be reasonably
likely to have a Material Adverse Effect and (b) maintain with financially
sound and reputable insurance companies insurance on such of its property and
against such liabilities in at least such amounts and against at least such
risks as are customarily insured against in the same general area by companies
engaged in the same or a similar business and furnish to the Administrative
Agent, upon written request, and to each Lender which makes a written request
through the Administrative Agent, reasonable information as to the insurance
carried.
Section
10.6 Inspection
of Property; Books and Records; Discussions. The
Company will, and will cause each of its Subsidiaries to, (a) keep proper books
of accounts and records in which entries in conformity in all material respects
with all Requirements of Law shall be made of all dealings and transactions in
relation to its businesses and activities and which shall permit the
preparation of financial statements in conformity with GAAP and (b) permit
representatives of the Administrative Agent or the Collateral Agent to visit
and inspect such of its properties during normal business hours as the
Administrative Agent or Collateral Agent reasonably may request and (during
such visit or inspection, or otherwise upon request by the Administrative Agent
or Collateral Agent) examine and make abstracts from such of its books and
records as it may reasonably request at any reasonable time and as often as may
reasonably be desired, and to discuss the business, condition (financial or
otherwise), performance, properties and prospects of the Company and its
Subsidiaries with officers and employees of the Company and its Subsidiaries
and with its then independent certified public accountants.
61
Section
10.7 Notices. The
Company will promptly give notice to the Administrative Agent and each Lender,
through the Administrative Agent:
(a) of the
occurrence of any Default or Event of Default; provided,
however, that
with respect to any Default or Event of Default arising under Section
12.1(q), the
Company will give notice thereof to the Administrative Agent no later than the
first Business Day after its becoming aware of the occurrence of any Default or
Event of Default thereunder;
(b) of any
default or event of default by the Company or any of its Subsidiaries under any
Contractual Obligation of the Company or any of its Subsidiaries or the
institution of, or the occurrence of any material adverse change, in the status
or likely result of, any litigation, investigation or proceeding which may
exist at any time between the Company or any of its Subsidiaries and any
Governmental Authority or any other Person which, in any of the foregoing
cases, would be reasonably likely to have a Material Adverse
Effect;
(c) of any
default or event of default by Revlon or (to its actual knowledge) REV
Holdings, Revlon Holdings, M&FH, M&F, M&FG or Mafco Guarantor Corp.
under any agreements or other instruments governing Indebtedness of such Person
involving an aggregate amount in excess of $5,000,000 (or, with respect to any
other currency, the Equivalent thereof);
(d) of (i)
any violation or noncompliance by the Company or any of its Subsidiaries or, to
the best of its knowledge, any other Person of any Environmental Laws which
would be reasonably likely to have a Material Adverse Effect or (ii) any
liability or potential liability to the Company or any of its Subsidiaries or,
to the best of its knowledge, to any other Person under, any Environmental Laws
which would be reasonably likely to have a Material Adverse
Effect;
(e) of any
of the following events, as soon as possible, and in any event, within 30 days
after the Company knows or has reason to know thereof:
(i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan; or
(ii) the
institution of proceedings or the taking or expected taking of any other action
by PBGC or the Company or any Commonly Controlled Entity to terminate, withdraw
or partially withdraw from any Plan and with respect to a Multiemployer Plan,
the Reorganization or Insolvency of such Plan;
if such
Reportable Event, termination, withdrawal or partial withdrawal (and, in the
case of any Multiemployer Plan, its Reorganization or Insolvency) would be
reasonably likely to result in liability to the Company and the Guarantors, in
the aggregate, in excess of $1,000,000;
(f) of a
material adverse change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Company and its
Subsidiaries taken as a whole, or of any event which would be reasonably likely
to materially adversely affect the ability of the Company and its Subsidiaries
taken as a whole to perform their obligations under the Loan Documents;
and
(g) of the
consummation of any transaction permitted by Section
11.8(e), which
notices shall, in any event, be given within five Business Days
thereafter.
62
Each
notice pursuant to this Section
10.7 shall
be accompanied by a statement of a Responsible Officer of the Company setting
forth details of the occurrence referred to therein and stating what action the
Company proposes to take with respect thereto.
Section
10.8 Maintenance
of Corporate Identity. The
Company will operate its businesses, and will cause its Subsidiaries to operate
their respective businesses, and maintain their records, independently from any
Person (a “Parent”)
which, directly or indirectly, is in control (as defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended) of the Company and
independently from any Subsidiary of such Parent other than the Company and its
Subsidiaries; and the Company will maintain bank accounts separate from the
bank accounts of each Parent of the Company and act solely in its own corporate
name and through its own authorized officers and agents.
Section
10.9 Environmental
Laws. The
Company will, and will cause each of its Subsidiaries to:
(a) Comply
with and require compliance by all tenants and subtenants, if any, with all
Environmental Laws and obtain and comply with and maintain, and require that
all tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, registrations or permits required by Environmental Laws
except to the extent that the failure to do so either individually or in the
aggregate would not be reasonably likely to have a Material Adverse Effect;
and
(b) Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply with all orders and directives of all Governmental Authorities
respecting Environmental Laws, except (i) to the extent that the failure to
perform any obligations contained in this clause
(b) would
not be reasonably likely to have a Material Adverse Effect or (ii) to the
extent that such obligations are being contested in good faith by appropriate
proceedings and provided that the pendency of any and all such proceedings
would not be reasonably expected to have a Material Adverse Effect.
Section
10.10 Additional
Guaranties. The
Company will from time to time cause each Domestic Subsidiary thereof which has
not previously done so to execute and deliver to the Administrative Agent duly
executed supplements and amendments to the Guaranty, in each case, in form and
substance satisfactory to the Administrative Agent. In the event that there
shall be a change in law that eliminates the adverse tax consequences to the
Company or any of its Subsidiaries that would have resulted on the date hereof
(so that such consequences, if any, are immaterial) from the guaranty by any
Foreign Subsidiary of the Payment Obligations, the Company will cause each of
its Foreign Subsidiaries to execute and deliver to the Administrative Agent
duly executed supplements and amendments to the Guaranty, in each case, in form
and substance satisfactory to the Administrative Agent. Each such supplement or
amendment shall be accompanied by such resolutions, incumbency certificates and
legal opinions as are reasonably requested by the Administrative Agent and are
in form and substance reasonably satisfactory to the Administrative
Agent.
Section
10.11 Additional
Stock Pledges.
(a) The
Company will, and will cause each of its Domestic Subsidiaries to, pledge to
the Collateral Agent 100% of the issued and outstanding Stock and Stock
Equivalents (other than directors’ qualifying shares) of each Domestic
Subsidiary of the Company which has not previously been pledged hereunder. Such
pledge shall be granted pursuant to duly executed joinders and amendments to
the Pledge and
63
Security
Agreement and, if applicable, the other Security Documents, in each case in
form and substance reasonably satisfactory to the Administrative Agent.
(b) The
Company will, and will cause each of the Subsidiary Guarantors to, pledge to
the Collateral Agent 66% (rounded downward to eliminate any fraction of a
share) of the issued and outstanding shares of each class of Stock and Stock
Equivalents entitled to vote (within the meaning of Treasury Regulation Section
1.956-2(c)(2)) (“Voting
Stock”)
and 100% of the issued and outstanding shares of each class of Stock and Stock
Equivalents not entitled to vote (within the meaning of such regulation)
(“Non-Voting
Stock”)
of each first-tier Foreign Subsidiary of the Company or such Subsidiary
Guarantor which (in each case) is owned of record by the Company or such
Subsidiary Guarantor and which has not previously been pledged hereunder;
provided,
however, that
in no event shall the Company and the Subsidiary Guarantors pledge an aggregate
amount of Voting Stock that exceeds 66% of the total outstanding Voting Stock
(taken as a whole) of any first-tier Foreign Subsidiary of the Company or such
Subsidiary Guarantor. Each such pledge shall be granted pursuant to duly
executed joinders and amendments to the Pledge and Security Agreement and if
applicable, the other Security Documents, in each case, as (x) the
Administrative Agent deems necessary or advisable in order to effectively grant
a valid, perfected and enforceable security interest in the Pledged Stock
delivered thereto under the laws of the State of New York and, if such issuer
of Pledged Stock is organized under the laws of the United Kingdom, Canada or
Bermuda and, if requested by the Administrative Agent in its sole discretion
exercised reasonably and in accordance with customary business practices for
comparable financing transactions, such other jurisdiction in which the issuer
of such Pledged Stock is organized to the extent such jurisdiction constitutes,
directly or indirectly, one of the top five net revenue generating markets of
the Company and its Subsidiaries and (y) is in form and substance reasonably
satisfactory to the Administrative Agent. Notwithstanding the foregoing, unless
either the Administrative Agent or the Required Lenders shall at any time
otherwise reasonably request, no such pledge shall be required pursuant to this
Section
10.11(b) with
respect to the Stock and Stock Equivalents of any first-tier Foreign Subsidiary
listed on Schedule
8.13(b) which
is not pledged on the Closing Date or is acquired or formed after the date
hereof and either (A) is listed on Schedule
8.13(b) as
being slated for liquidation, dissolution or merger or (B) does not have assets
in excess of $5,000,000 (or, with respect to any other currency, the Equivalent
thereof).
(c) Each
joinder and amendment to the Pledge and Security Agreement and the other
Security Documents required to be executed and delivered pursuant to this
Section
10.11 shall
be promptly executed and delivered after the organization, acquisition or
identification of any such Subsidiary Guarantor or first-tier Foreign
Subsidiary and shall be accompanied by share certificates evidencing the
Pledged Stock thereunder (to the extent that such Pledged Stock is
certificated), together with an undated stock power for each such share
certificate (duly executed in blank and delivered by a duly authorized officer
of the pledgor of the Pledged Stock represented by such certificate). Each
joinder and amendment to the Pledge and Security Agreement and the other
Security Documents executed and delivered pursuant to this Section
10.11 shall
be accompanied by (i) in the case of the pledge of Stock or Stock Equivalents
of any Foreign Subsidiary, evidence of the taking of all such other actions as
may be necessary or appropriate for the perfection and first priority of such
pledge, and (ii) in the case of any Subsidiary, such resolutions, incumbency
certificates and legal opinions as are reasonably requested by the
Administrative Agent and shall otherwise be in form and substance reasonably
satisfactory to the Administrative Agent.
(d) In the
event that there shall be a change in law that eliminates the adverse tax
consequences to the Company or any of its Subsidiaries that would have resulted
on the date
64
hereof
(so that such consequences, if any, are immaterial) from the pledge of 66-2/3%
or more of the Voting Stock of any Foreign Subsidiary, the Company will, and
will cause each of its Subsidiaries to, (i) pledge such additional amount of
shares of such Voting Stock (with respect to each Foreign Subsidiary the Voting
Stock of which then is pledged hereunder) and (ii) notwithstanding the
provisions of Section
10.11(b), pledge
the maximum amount of shares of such Voting Stock (with respect to each Foreign
Subsidiary the Voting Stock of which is pledged thereafter), in each case which
can be so pledged without the incurrence of adverse tax consequences and take
or cause to be taken such further action as the Administrative Agent may
reasonably request (including, without limitation, the delivery of legal
opinions) in order to perfect its security interest in such stock.
Section
10.12 Additional
Collateral. The
Company will cause each of its Subsidiary Guarantors which has not previously
done so to execute and deliver to the Administrative Agent duly executed
joinders and amendments to the Pledge and Security Agreement and, if
applicable, the other Security Documents, in each case, in form and substance
reasonably satisfactory to the Administrative Agent, and to take such other
action as reasonably shall be necessary or as the Administrative Agent
reasonably shall request to grant to the Collateral Agent a valid and
enforceable first priority perfected security interest in all Collateral of
such Subsidiary Guarantor (subject to any Liens permitted by Section
11.3). Each
such joinder and amendment shall be accompanied by such evidence of the taking
of all actions as may be necessary or appropriate for the perfection and first
priority of such security interest (including, without limitation, the filing
of any necessary Uniform Commercial Code financing statements) and such
resolutions, incumbency certificates and legal opinions as are reasonably
requested by the Administrative Agent, all of which shall be in form and
substance reasonably satisfactory to the Administrative Agent.
Section
10.13 Asset
Transfers.
(a) Each of
the Company and the Subsidiary Guarantors will grant to the Collateral Agent a
first priority, perfected security interest (subject to any Liens thereon which
are permitted to encumber the relevant asset pursuant to Section
11.3) in all
properties and assets (whether tangible or intangible) of a type that
constitutes Collateral under any Security Document to which the Company or any
Subsidiary Guarantor is a party which are sold, transferred, conveyed or
otherwise distributed to the Company or any such Subsidiary Guarantor
(including, without limitation, by way of merger or consolidation) from any
Subsidiary of the Company simultaneously with the effectiveness of such sale,
transfer, conveyance or other distribution.
(b) The
Company and each Subsidiary Guarantor will take such action from time to time
as is necessary (or otherwise reasonably requested by the Administrative Agent)
to ensure that the Collateral Agent at all times holds a perfected security
interest in all Collateral under the Security Documents, except as otherwise
permitted hereunder.
Section
10.14 Intellectual
Property.
(a) The
Company will, and will cause each of the Subsidiary Guarantors to, take such
action as is necessary (or as otherwise is reasonably requested by the
Administrative Agent) in order to grant to the Collateral Agent a first
priority, perfected security interest in any copyright registration in which
the Company or any of the Subsidiary Guarantors may from time to time obtain
any interest. The
Company will submit, and will cause each Subsidiary Guarantor to submit, to the
Administrative Agent, by each January 31st and July 31st of each year following
the Closing Date, commencing January 31, 2007 (or, if the Administrative Agent
reasonably so requests in writing, more often; provided,
however, that,
except during such time as a Default or Event of Default has occurred and is
continuing, the Administrative Agent shall not so request more frequently than
monthly), a Copyright Security
65
Agreement
(substantially in the form attached to the Pledge and Security Agreement or
such other form reasonably acceptable to the Administrative Agent) confirming
the security interest of the Collateral Agent in any Copyright acquired or with
respect to which the Company or any Subsidiary Guarantor filed an application
for copyright registration during the two prior calendar quarters, duly
executed and in proper form for recordation in the United States Copyright
Office.
(b) The
Company will, to the extent permitted by Title 15 of the United States Code,
submit, and will cause each Subsidiary Guarantor to submit, to the United
States Patent and Trademark Office for registration or recordation, as
applicable:
(i) a
completed application for trademark registration, in such class or classes as
is in conformity with its ordinary business practice then in effect, of each
Trademark acquired or adopted and used or intended to be used by it, with
respect to any xxxx which, in the Company’s reasonable judgment, is a
Significant Trademark; provided,
however, that
within 30 days after receipt of notice from the Administrative Agent, the
Company shall, or shall cause the applicable Subsidiary Guarantor to, submit to
the United States Patent and Trademark Office for registration a completed
application for trademark registration, in such class or classes as is in
conformity with its ordinary business practice then in effect, of any Trademark
acquired or adopted and used or intended to be used by it, with respect to any
xxxx which the Required Lenders reasonably deem to be of such significance as
to require the Company or such Subsidiary Guarantor to take such steps as may
be necessary or desirable to grant to the Collateral Agent a perfected, first
priority security interest in such Trademark to the extent that it has any
ownership interest in such Trademark which is registerable by it under
trademark or other applicable law; and
(ii) with
respect to any interest acquired after the date hereof by the Company or any of
its Subsidiaries in a Significant Trademark, any appropriate assignment to the
Company or such Subsidiary Guarantor of the interest acquired by it in the
United States in such Significant Trademark, including, without limitation, all
previously unrecorded assignments to the Company’s or such Subsidiary
Guarantor’s predecessors-in-interest of which the Company or any
Subsidiary Guarantor is or becomes aware.
The
Company will, and will cause each Subsidiary Guarantor to, use its respective
commercially reasonable best efforts to comply with all requirements of the
Xxxxxx Act and the rules and regulations thereunder, as from time to time in
effect, or other applicable law necessary in order to validly register and
maintain the registration of any such Significant Trademark with the United
States Patent and Trademark Office, except as permitted pursuant to
Sections
10.4, 11.5
and
11.6 hereof.
The Company will submit, and will cause each Subsidiary Guarantor to submit, to
the Administrative Agent, by each January 31st and July 31st of each year
following the Closing Date, commencing January 31, 2007 (or, if the
Administrative Agent reasonably so requests in writing, more often;
provided,
however, that,
except during such time as a Default or Event of Default has occurred and is
continuing, the Administrative Agent shall not so request more frequently than
monthly), a Trademark Security Agreement (substantially in the form attached to
the Pledge and Security Agreement or such other form reasonably acceptable to
the Administrative Agent) confirming the security interest of the Collateral
Agent in any Trademark acquired or with respect to which the Company or any
Subsidiary Guarantor filed an application for trademark registration during the
two prior calendar quarters, duly executed and in proper form for recordation
in the United States Patent and Trademark Office.
66
(c) The
Company will, to the extent permitted by Title 35 of the United States Code,
submit, and will cause each Subsidiary Guarantor to submit, to the United
States Patent and Trademark Office for issuance or recordation, as
applicable:
(i) an
application for letters patent for each patentable invention acquired by or
invented by or for it which invention is of such a nature that the Company or
its Subsidiaries, in accordance with its ordinary business practice then in
effect, would file a patent application in the United States Patent and
Trademark Office with respect to it; and
(ii) with
respect to any interest acquired after the date hereof by the Company or any of
its Subsidiaries in a Patent, any appropriate assignment to the Company or such
Domestic Subsidiary of the interest acquired by it in the United States in such
Patent, including, without limitation, all previously unrecorded assignments to
the Company’s or such Domestic Subsidiary’s predecessors-in-interest
of which the Company or any Subsidiary Guarantor is or becomes
aware.
The
Company will, and will cause each Subsidiary Guarantor to, use its respective
commercially reasonable best efforts to comply with all requirements of the
United States Patent Act and the rules and regulations thereunder, as from time
to time in effect, or other applicable law necessary in order to validly obtain
and maintain any Patent with the United States Patent and Trademark Office,
except as permitted pursuant to Sections 10.4,
11.5 and
11.6 hereof.
The Company will submit, and will cause each Subsidiary Guarantor to submit, to
the Administrative Agent, by each January 31st and July 31st of each year
following the Closing Date, commencing January 31, 2007 (or, if the
Administrative Agent reasonably so requests in writing, more often;
provided,
however, that,
except during such time as a Default or Event of Default has occurred and is
continuing, the Administrative Agent shall not so request more frequently than
monthly), a Patent Security Agreement (substantially in the form attached to
the Pledge and Security Agreement or such other form reasonably acceptable to
the Administrative Agent) confirming the security interest of the Collateral
Agent in any Patent acquired or with respect to which the Company or any
Subsidiary Guarantor filed an application for letters patent during the two
prior calendar quarters, duly executed and in proper form for recordation in
the United States Patent and Trademark Office.
(d) Notwithstanding
anything to the contrary contained in this Section
10.14, the
Company and its Subsidiaries shall have the right to license their respective
Patents and Trademarks to third parties on an arms’ length basis;
provided,
however, that,
except with respect to Trademarks and Patents which constitute Disposition
Assets or with respect to which the only substantial use by the Company and its
Subsidiaries is in connection with a business constituting a Disposition Asset,
that any such license of (i) a Trademark shall be for use with respect to
products which are not reasonably likely to be competitive with those produced
and/or marketed by the Company and its Subsidiaries and (ii) a Patent shall be
for applications which would not be reasonably likely to diminish the value of
any product line of the Company and its Subsidiaries, except for, in the case
of each of clause
(i) and
(ii),
licenses or cross-licenses granted by the Company or any such Subsidiary in
connection with the settlement or other disposition of litigation or other
disputes with respect to Patents or Trademarks, provided,
however, that
such licenses or cross-licenses shall be granted (x) in the reasonable business
judgment of the Company or any such Subsidiary, or (y) as may be required by
any Governmental Authority having jurisdiction over any such litigation or
dispute. The Administrative Agent and each Lender hereby acknowledges and
agrees that any security interest held by the Collateral Agent in any Patent or
Trademark which is licensed in accordance with the provisions of this
Section
67
10.14(d) shall
be subordinate to such license agreement and each Lender hereby instructs the
Administrative Agent to execute and deliver such instruments, documents and
agreements as the Company reasonably may request in order to confirm such
subordination.
Section
10.15 Additional
Mortgages. With
respect to any fee interest in any real property located in the United States
having a value (together with improvements thereon) of at least $7,500,000
acquired after the Closing Date by the Company or any of its Domestic
Subsidiaries, the Company or such Subsidiary shall promptly (and in any event
within 45 days after (x) the acquisition thereof or (y) in the case of costs
and expenses referred to in clause
(c) below, the
receipt of an invoice in respect thereof) (a) execute and deliver a
first-priority and a second-priority Mortgage, in favor of the Collateral
Agent, for the benefit of the holders of the Secured Obligations, covering such
real property (subject to Customary Permitted Liens, Liens securing the
Multi-Currency Payment Obligations and Designated Eligible Obligations as
provided by the Intercreditor Agreement and other Liens approved by the
Administrative Agent), (b) if requested by the Administrative Agent, provide
all Mortgage Supporting Documents relating thereto and (c) pay all costs and
expenses associated with the foregoing.
Section
10.16 Post-Closing
Matters. The
Company shall, and shall cause each of its Subsidiaries to, deliver each of the
documents, instruments and agreements set forth on Schedule
10.16 within
the time periods set forth on such Schedule.
Section
10.17 [Intentionally
Omitted.]
Section
10.18 Tax
Reporting.
Promptly after the Company determines that it intends to treat the Loans and
the related transactions contemplated hereby as a “reportable
transaction”
(within the meaning of Treasury Regulation Section 1.6011-4), the Company shall
give the Administrative Agent written notice thereof and shall deliver to the
Administrative Agent all U.S. Internal Revenue Service forms required in
connection therewith.
Section
10.19 Control
Accounts; Approved Deposit Accounts.
(a) The
Company shall, and shall cause each of the Subsidiary Guarantors to, except
cash or Cash Equivalents subject to a Lien permitted under Section
11.3(c),
(d),
(p) or
(q), (i)
deposit in an Approved Deposit Account all cash and all Proceeds of any Account
or General Intangible they receive from any other Person, (ii) not maintain any
funds or other assets in any Securities Account that is not a Control Account
and (iii) not establish or maintain any Deposit Account other than with a
Deposit Account Bank; provided,
however, that
the Company and each of its Subsidiaries may deposit cash into and maintain (A)
payroll, benefits, withholding tax, escrow, customs and other fiduciary
accounts and (B) other accounts as long as the aggregate balance in all such
other accounts does not exceed $5,000,000 at any time.
(b) The
Administrative Agent may establish one or more Cash Collateral Accounts with
such depositaries and Securities Intermediaries as it in its sole discretion
shall determine to the extent expressly contemplated in any Loan Document and
shall (or direct the Collateral Agent to) apply the all funds on deposit in
such Cash Collateral Account as so contemplated. Funds on deposit in any Cash
Collateral Account may be invested (but the Administrative Agent shall be under
no obligation to make any such investment) in Cash Equivalents at the direction
of the Administrative Agent and, except during the continuance of an Event of
Default, the Administrative Agent agrees with the Company to direct the
Collateral Agent to issue Entitlement Orders for such investments in Cash
Equivalents as requested by the
68
Company;
provided,
however, that
neither Administrative Agent nor the Collateral Agent shall have any
responsibility for, or bear any risk of loss of, any such investment or income
thereon.
NEGATIVE
COVENANTS
The
Company hereby agrees that, until the Payment Obligations are Fully
Satisfied:
Section
11.1 Financial
Covenant. The
Company will not permit
the Senior Secured Leverage Ratio of the Company and its Subsidiaries for the
period of four consecutive fiscal quarters of the Company ending during any
period set forth below to be more than the amount set forth opposite such
period:
Period
|
Senior
Secured
Leverage
Ratio |
December
31, 2006 through September 30, 2008 |
5.50 to
1.00 |
December
31, 2008 and each fiscal quarter thereafter |
5.00 to
1.00 |
Section
11.2 Indebtedness. The
Company will not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Indebtedness, except for:
(a) Indebtedness
in respect of the Payment Obligations;
(b) Indebtedness
under the Senior Notes Indenture in respect of the Existing Senior Notes and
Indebtedness under the Subordinated Notes Indenture, and any Indebtedness
resulting from the refinancing of any such Indebtedness, or the refinancing of
any of the Term Loans in whole or in part (subject to the payment of any
applicable Prepayment Fee); provided,
however, that
(i) the primary obligor with respect to any such refinancing Indebtedness is
the same as the primary obligor on the Indebtedness refinanced thereby and
(except in the case of any Permitted Third Lien Financing) any contingent
obligor of such refinancing Indebtedness was or would have been required to be
a contingent obligor of the Indebtedness refinanced thereby (except to the
extent that such primary obligor and/or contingent obligor may be substituted
by a new primary obligor or contingent obligor, as the case may be, which has
no material assets other than assets which, immediately prior to such
substitution, constituted the assets of the original primary obligor and/or
contingent obligor), (ii) the principal amount of any such refinancing
Indebtedness (as determined as of the date of the incurrence of such
refinancing Indebtedness in accordance with GAAP) does not exceed the principal
amount of the Indebtedness refinanced thereby together with any premium
actually paid thereon and reasonable costs and expenses (including underwriting
discounts) incurred in connection with such refinancing Indebtedness, (iii) the
interest rate applicable to such refinancing Indebtedness shall not be less
favorable to the obligor than it would obtain in an arm’s length
transaction with a Person that is not an Affiliate thereof and shall reflect
the prevailing market conditions at the time of such refinancing, (iv) such
refinancing Indebtedness does not have any scheduled installments of principal
thereof due prior
69
to the
date that is six months after the Term Loan Maturity Date, (v) with respect to
each issue of refinancing Indebtedness in excess of $5,000,000 (or, with
respect to any other currency, the Equivalent thereof) in the aggregate, either
(A) the covenants, defaults and similar provisions applicable to such
refinancing Indebtedness or obligations are no more restrictive, taken as a
whole, than the provisions contained in and otherwise consistent with market
terms of agreements governing comparable Indebtedness of similar companies in
the high yield market at the time of such refinancing and do not conflict with
the provisions of this Agreement,
provided, that a
certificate of a Responsible Officer delivered to the Administrative Agent at
least five Business Days prior to the incurrence of such refinancing
Indebtedness, together with a reasonably detailed description of the material
terms and conditions of such Indebtedness or drafts of the documentation
relating thereto, stating that the Company has determined in good faith that
such terms and conditions satisfy the foregoing requirement shall be conclusive
evidence that such terms and conditions satisfy the foregoing requirement and
the requirement under clause
(iii) above
unless the Administrative Agent notifies the Company within such five Business
Day period that it disagrees with such determination (including a reasonable
description of the basis upon which it disagrees), or (B) such refinancing
Indebtedness is otherwise upon terms and subject to definitive documentation
which is in form and substance reasonably satisfactory to the Administrative
Agent, (vi) if the Indebtedness being refinanced is Indebtedness under the
Subordinated Notes Indenture, such refinancing Indebtedness shall be (A)
subordinated to the Payment Obligations on terms that are reasonably
satisfactory to the Administrative Agent (it being understood that
subordination terms substantially similar to those applicable to the
Subordinated Notes are deemed to be satisfactory) or (B) pursuant to a
Permitted Third Lien Financing and
(vii) such refinancing Indebtedness shall be unsecured unless pursuant to a
Permitted Third Lien Financing.
(c) Indebtedness
(i) of the Company owing to any of its wholly-owned Subsidiaries, (ii) of any
wholly-owned Subsidiary of the Company owing to any other wholly-owned
Subsidiary of the Company and (iii) of any wholly-owned Subsidiary of the
Company owing to the Company; provided,
however, in
each case, that the aggregate principal amount of such Indebtedness of any
Subsidiary that is not a Guarantor incurred after the date hereof shall be
subject to Section
11.8(j);
(d) Indebtedness
of any Foreign Subsidiary or any foreign branch of a Domestic Subsidiary
principally doing business outside of the United States (including, without
limitation, Indebtedness on account of letters of credit not issued under the
Existing Credit Agreement) incurred for working capital purposes (and, without
duplication, any Contingent Obligation of the Company in respect thereof) in an
aggregate principal amount at any time outstanding not exceeding for the
Foreign Subsidiaries and foreign branches of Domestic Subsidiaries in the
aggregate $50,000,000 (or, with respect to any other currency, the Equivalent
in Dollars thereof); provided,
however, that
for purposes of this Section
11.2(d), such
aggregate principal amount shall not include (x) an amount equal to the
aggregate principal amount of Indebtedness of the Foreign Subsidiaries and
foreign branches of Domestic Subsidiaries to any bank which is offset by
compensating balances at such bank (which Indebtedness shall be permitted
hereunder) and (y) Indebtedness otherwise permitted by this Section
11.2;
(e) Indebtedness
of the Company to Affiliates in respect of Capital Contribution Notes which
evidence cash amounts actually received by the Company from such Affiliates on
account of Capital Contributions;
(f) Indebtedness
to employees or former employees of the Company or any of its Subsidiaries in
the nature of deferred compensation;
70
(g) Indebtedness
of the Company and its Subsidiaries under Interest Rate Agreements which are in
existence on the date hereof, and other Indebtedness of the Company and its
Subsidiaries under Interest Rate Agreements, which (i) have a tenor which is
not in excess of six years, (ii) are not leveraged, (iii) are in an aggregate
notional amount (net of any offsetting economic positions among such Interest
Rate Agreements) not to exceed $300,000,000 at any one time outstanding
(including, without limitation, all Interest Rate Agreements in effect on the
date hereof) and (iv) have the sole purpose of hedging interest rate exposure
of the Company and its Subsidiaries;
(h) Hedging
Contracts of the Company and its Subsidiaries entered into in the ordinary
course of business of the Company and its Subsidiaries for the purpose of
providing foreign exchange for their respective operating requirements or of
hedging currency exposure;
(i) unsecured
Indebtedness of the Company to an M&F Lender in an aggregate amount not to
exceed $152,000,000 at any one time outstanding (as may be increased due to the
accrual and capitalization of interest) (the “Permitted
M&F Loan Amount”),
consisting of Indebtedness in respect of (i) the M&F Consolidated Line of
Credit and (ii) any refinancing or replacement of, or addition to, any such
Indebtedness (whether upon repayment of such Indebtedness or at any time
thereafter) in an aggregate principal amount not to exceed the Permitted
M&F Loan Amount on terms and conditions (taken as whole) that are no less
favorable to the Company or the Lenders than the terms and conditions of the
M&F Loans as in effect on the Closing Date (taken as a whole); provided,
however, that
such Indebtedness may be refinanced or replaced by any Person other than an
M&F Lender (or any Affiliate thereof) to the extent (A) the final maturity
date for such refinancing Indebtedness shall be at least 90 days after the Term
Loan Maturity Date, (B) the aggregate principal amount of any Indebtedness
permitted under this clause
(i) shall
not exceed the Permitted M&F Loan Amount and (C) the covenants, defaults
and similar provisions applicable to such refinancing Indebtedness or
obligations are no more restrictive, taken as a whole, than the provisions
contained in and otherwise consistent with market terms of agreements governing
Indebtedness of similar companies in the high yield market at the time of such
refinancing and do not conflict with the provisions of this
Agreement; provided, that a
certificate of a Responsible Officer delivered to the Administrative Agent at
least five Business Days prior to the incurrence of such refinancing
Indebtedness, together with a reasonably detailed description of the material
terms and conditions of such Indebtedness or drafts of the documentation
relating thereto, stating that the Company has determined in good faith that
such terms and conditions satisfy the foregoing requirement shall be conclusive
evidence that such terms and conditions satisfy the foregoing requirement
unless the Administrative Agent notifies the Company within such five Business
Day period that it disagrees with such determination (including a reasonable
description of the basis upon which it disagrees);
(j) Indebtedness
of the Company or any of its Subsidiaries in the nature of guarantees as
referred to in clause
(k) of the
definition of “Indebtedness”
in Section
1.1 which
is permitted by Section
11.3(m);
(k) Indebtedness
of any Foreign Subsidiary or a foreign branch of a Domestic Subsidiary
principally doing business outside of the United States to any Person (other
than an Affiliate of the Company), in an aggregate principal amount at any one
time outstanding not to exceed $50,000,000 (or with respect to any other
currency, the Equivalent in Dollars thereof); provided,
however, that,
such Indebtedness (i) is not guaranteed by the Company (except to the extent
that the Lien permitted by Section
11.3(m), in
itself, constitutes a guarantee) and (ii) is either offset or secured by a
counterpart deposit, compensating balance or a pledge of cash
71
deposit;
provided,
further, that
such counterpart deposit, compensating balance or cash deposit pledge does not
constitute Collateral (as defined in any Security Document) or any of the
Unpledged International Property;
(l) Capital
Lease Obligations and purchase money Indebtedness of the Company or any of its
Subsidiaries to finance the acquisition of capital assets; provided,
however, that
the Dollar Equivalent of the aggregate outstanding principal amount of all such
Capital Lease Obligations and purchase money Indebtedness shall not exceed
$35,000,000 at any time;
(m) Indebtedness
to any Person (other than an Affiliate of the Company) in respect of the
undrawn portion of the face amount of or unpaid reimbursement obligations in
respect of letters of credit not issued under the Existing Credit Agreement for
the account of the Company or any of its Subsidiaries in an aggregate amount at
any one time outstanding not to exceed $30,000,000 (or with respect to any
other currency, the Equivalent in Dollars thereof); provided,
however, that
such Indebtedness is offset or secured by a counterpart deposit, compensating
balance or a pledge of cash deposits;
(n) [intentionally
omitted]
(o) additional
Indebtedness in an aggregate principal amount not to exceed $200,000,000 at any
one time outstanding; provided,
however, that
such Indebtedness shall be unsecured at all times during the term of this
Agreement;
(p) Indebtedness
incurred in connection with financing Permitted Acquisitions or any refinancing
of Indebtedness under this clause (p); provided,
however, that
any Indebtedness pursuant to this clause (p) shall be (i) unsecured at all
times during the term of this Agreement and (ii) subordinated to the Payment
Obligations on terms that are reasonably satisfactory to the Administrative
Agent (it being understood that subordination terms substantially similar to
those applicable to the Subordinated Notes are deemed to be satisfactory);
and
(q) Indebtedness
under the Existing Credit Agreement, any Facilities Increase (as defined in the
Existing Credit Agreement) and any Indebtedness resulting from the refinancing
of such Indebtedness; provided,
however, that
(i) the aggregate principal
amount of any Indebtedness permitted under this clause (q) at any
time outstanding shall
not exceed
$210,000,000, (ii)
the primary obligor with respect to any such refinancing Indebtedness is the
same as the primary obligor on the Indebtedness refinanced thereby and any
contingent obligor of such refinancing Indebtedness was or would have been
required to be a contingent obligor of the Indebtedness refinanced thereby,
(iii) the interest rate applicable to such refinancing Indebtedness shall not
be less favorable to the obligor than it would obtain in an arm’s length
transaction with a Person that is not an Affiliate thereof and shall reflect
the prevailing market conditions at the time of such refinancing, (iv) such
refinancing Indebtedness does not have a final maturity prior to the Term Loan
Maturity Date, (v) the covenants, defaults and similar provisions applicable to
such refinancing Indebtedness or obligations are no more restrictive, taken as
a whole, than the provisions contained in the credit agreement referred to in
clause
(i) of the
definition of “Existing Credit Agreement” and do not conflict with
the provisions of this Agreement, provided, that a
certificate of a Responsible Officer delivered to the Administrative Agent at
least five Business Days prior to the incurrence of such refinancing
Indebtedness, together with a reasonably detailed description of the material
terms and conditions of such Indebtedness or drafts of the documentation
relating thereto, stating that the Company has determined in good faith that
such terms and conditions satisfy the foregoing requirement and the requirement
in clause
(iii) above
72
shall be
conclusive evidence that such terms and conditions satisfy the foregoing
requirement unless the Administrative Agent notifies the Company within such
five Business Day period that it disagrees with such determination (including a
reasonable description of the basis upon which it disagrees), and (vi)
such refinancing indebtedness is subject to an intercreditor agreement on terms
reasonably
satisfactory
to the Administrative Agent (it being understood that terms substantially
similar to those applicable to the
Existing Credit Agreement under the
Intercreditor Agreement are deemed to be satisfactory);
provided,
however, that
in no event may the Company or any of its Subsidiaries incur any Indebtedness
to REV Holdings or RPH.
Section
11.3 Limitation
on Liens. The
Company will not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Lien upon any of their properties, assets
(including shares of stock) or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens
for taxes not yet due or which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or any of its Subsidiaries, as the case
may be, in accordance with GAAP;
(b) carriers’,
warehousemens’, mechanics’, materialmens’, repairmens’ or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 45 days or which are being contested in good
faith and by appropriate proceedings;
(c) pledges
or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation; provided,
however, that
no such Lien shall encumber any Collateral (other than cash or Cash
Equivalents) under any of the Security Documents or any of the Unpledged
International Property;
(d) deposits
to secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of
business, provided,
however, that
no such Lien shall encumber any Collateral (other than cash or Cash
Equivalents) under any of the Security Documents or any of the Unpledged
International Property;
(e) easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the business
of the Company or any of its Subsidiaries;
(f) Liens in
favor of the United States of America for amounts paid by the Company or any of
its Subsidiaries as progress payments under government contracts entered into
by them; provided,
however, that
no such Lien shall encumber any Collateral under any of the Security Documents
or any of the Unpledged International Property;
(g) Liens
existing on the date of this Agreement which are disclosed in the title
insurance policies delivered pursuant to Section
9.1(d) or
Schedule
11.3;
(h) Liens
under the Security Documents (including, without limitation, Liens which secure
Designated Eligible Obligations as provided for in the Intercreditor Agreement)
or any other Lien securing all or any portion of the Payment Obligations, the
Multi-Currency
73
Payment
Obligations or any refinancings thereof permitted by Section
11.2(q), or
Designated Eligible Obligations as provided for in the Intercreditor
Agreement;
(i) attachment,
judgment or other similar Liens arising in connection with court or arbitration
proceedings;
provided,
however, that
the same are discharged, or that execution or enforcement thereof is stayed
pending appeal, within 30 days or (in the case of any execution or enforcement
pending appeal) such lesser time during which such appeal may be
taken;
(j) other
Liens incidental to the conduct of the business of the Company and its
Subsidiaries or the ownership of any of their assets not incurred in connection
with Indebtedness or Contingent Obligations, which Liens do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Company or any of its
Subsidiaries; provided,
however, that
no such Lien shall encumber any Collateral under any Security Document or any
of the Unpledged International Property;
(k) Liens
securing any Indebtedness permitted by Section
11.2(d) or any
Liens replacing such permitted Liens;
provided,
however, that
(i) no such Lien shall encumber any asset of the Company or any of its
Subsidiaries organized under the laws of a jurisdiction within the United
States or any Collateral under any Security Document or any of the Unpledged
International Property and (ii) any such Lien which secures reimbursement
obligations under letters of credit not issued under the Existing Credit
Agreement shall be limited to (A) the assets acquired or shipped with the
support of such letter of credit and (B) any assets of a Foreign Subsidiary
which are in the care, custody or control of such issuer of such letter of
credit in the ordinary course of business;
(l) Liens
securing any Indebtedness permitted by Section
11.2(g),
Section
11.2(h) or
obligations of any Foreign Subsidiary or a foreign branch of any Domestic
Subsidiary principally doing business outside of the United States in respect
of treasury, depository, overdraft and other cash management arrangements
maintained with any Lender, any Multi-Currency Lender, any Affiliate of a
Lender or a Multi-Currency Lender or any other Person reasonably acceptable to
the Administrative Agent or any Liens replacing such permitted Liens;
provided,
however, that
no such Lien shall encumber any asset of the Company or any of its Subsidiaries
organized under the laws of a jurisdiction within the United States or any
Collateral under any Security Document or any of the Unpledged International
Property;
(m) Liens in
the nature of counterpart deposits or pledges of cash deposits of the Company
or any of its Subsidiaries to secure Indebtedness of Foreign Subsidiaries of
the Company or a foreign branch of a Domestic Subsidiary principally doing
business outside of the United States, which Indebtedness is permitted pursuant
to Section
11.2(k));
provided,
however, that
no such Lien shall encumber any Collateral under any of the Security Documents
or any of the Unpledged International Property;
(n) possessory
Liens in favor of securities intermediaries, commodity intermediaries, brokers
and dealers arising in connection with the acquisition or disposition of
investments of the type permitted by Section
11.8;
provided,
however, that
such Liens (i) attach only to such investments and (ii) secure only obligations
incurred in the ordinary course and arising in connection with the acquisition
or disposition of such investments and not any obligation in connection with
margin financing; and provided,
further, that
such Liens attach only to the property of the Company or its Subsidiary, as the
case may be, for whose account any such obligations have been
incurred;
74
(o) purchase
money Liens granted by the Company or any of its Subsidiaries (including the
interest of a lessor under a Capital Lease and purchase money Liens to which
any property is subject at the time, on or after the date hereof, of the
Company’s or such Subsidiary’s acquisition thereof) securing
Indebtedness permitted under Section
11.2(l) and
limited in each case to the property purchased with the proceeds of such
purchase money Indebtedness or subject to such Capital Lease (or proceeds
thereof or additional property in the nature of improvements
thereto);
(p) Liens in
the nature of counterpart deposits or pledges of cash deposits of the Company
or any of its Subsidiaries to secure Indebtedness permitted pursuant to
Section
11.2(m);
provided,
however, that
the amount of any such deposit does not exceed the amount of the Indebtedness
it secures;
(q) additional
Liens incurred in the ordinary course of business of the Company and its
Subsidiaries securing Indebtedness or other obligations of the Company and/or
any of its Subsidiaries (other than such Indebtedness or other obligation owing
to an Affiliate of the Company) not to exceed $10,000,000 (or, with respect to
any other currency, the Equivalent thereof) in the aggregate at any one time
outstanding;
provided,
however, that
no such Lien shall encumber any Collateral (other than cash or Cash
Equivalents) under any of the Security Documents or any of the Unpledged
International Property;
and
(r) Liens
securing any Permitted Third Lien Financing.
Section
11.4 Limitation
on Contingent Obligations. The
Company will not, and will not permit any of its Subsidiaries to, agree to, or
assume or incur, or otherwise in any way be or become responsible or liable,
directly or indirectly, with respect to, any Contingent Obligation, except
for:
(a) the
Guaranty;
(b) Contingent
Obligations set forth on Schedule
11.4;
(c) any
Contingent Obligation of the Company in the nature of a guarantee in the
ordinary course of business of any Indebtedness or other obligations of any of
its Subsidiaries permitted under this Agreement;
(d) any
Contingent Obligation of any Subsidiary of the Company in the nature of a
guarantee in the ordinary course of business of any Indebtedness or other
obligations of any of the Subsidiaries of such Subsidiary permitted under this
Agreement;
(e) any
Contingent Obligation of any Subsidiary of the Company in the nature of a
guarantee in the ordinary course of business of Indebtedness (other than the
Subordinated Notes, the Existing Senior Notes or any Indebtedness referred to
in Section
11.2(b) that is
not permitted to have such Contingent Obligation by the terms of such
Section
11.2(b)) or
other obligations of the Company or any other Subsidiary of the
Company;
(f) any
Contingent Obligation of the Company or any of its Subsidiaries in the nature
of a guarantee of Indebtedness of any Permitted Joint Venture; provided,
however, that
the incurrence of such Contingent Obligation is permitted by Section
11.8(e) or
Section
11.8(k);
and
75
(g) any
Contingent Obligation of the Company or any of its Subsidiaries in the nature
of a guarantee of Indebtedness of officers and directors of the Company and its
Subsidiaries in the ordinary course of business; provided,
however, that
the sum of the aggregate principal amount of the Indebtedness so guaranteed and
the aggregate principal amount of all then outstanding loans permitted by
Section
11.8(f) does
not exceed $7,000,000 at any one time outstanding.
Section
11.5 Limitation
on Fundamental Changes. The
Company will not, and will not permit any of its Subsidiaries to, enter into
any transaction in the nature of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), convey, sell, lease, assign, transfer (including any transfer,
relocation, situation or registration of any asset owned by any Loan Party to
the Commonwealth of Australia other than in the ordinary course of business) or
otherwise dispose of, in one transaction or a series of related transactions,
all or a substantial part of the business or assets of the Company, or enter
into any such transaction or series of related transactions with regard to a
group of Subsidiaries which, if merged into a single Subsidiary, would
constitute a substantial part of the business or assets of the Company, or
acquire by purchase or otherwise all or substantially all the business or
assets of, or stock or other evidences of beneficial ownership of, any Person,
except that during such time as no Specified Default or Event of Default has
occurred and is continuing (or would result therefrom):
(a) the
Company and its Subsidiaries may engage in Permitted Intercompany Transfers;
and
(b) the
Company and any of its Subsidiaries may engage in transactions permitted under
Section
11.6
or
Section 11.8(d),(e),
(i) or (k).
Section
11.6 Limitation
on Sale of Assets. The
Company will not, and will not permit any of its Subsidiaries to, sell, lease,
assign, transfer or otherwise dispose of any of its assets (including, without
limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any of the Subsidiaries of the Company,
issue any Stock or Stock Equivalents (other than any director’s qualifying
shares), to any Person, except:
(a) sales,
transfers and other dispositions by the Company and its Subsidiaries of (i)
obsolete or worn out property in the ordinary course of business or (ii)
contemplated by clause
(b)(ii) of the
definition of “Net
Proceeds Event”;
(b) sales,
transfers and other dispositions of property (including, without limitation,
inventory) by the Company and its Subsidiaries to third parties in the ordinary
course of business for fair market value;
(c) during
such time as no Specified Default or Event of Default has occurred and is
continuing (or would result therefrom), Permitted Intercompany
Transfers;
(d) during
such time as no Specified Default or Event of Default has occurred and is
continuing (or would result therefrom), any Specified Dispositions for fair
market value (which property, in the aggregate, the Company hereby represents
and warrants is not material to the conduct of the business of the Company and
its Subsidiaries);
(e) during
such time as no Specified Default or Event of Default has occurred and is
continuing (or would result therefrom), sales, transfers and other dispositions
of
76
assets
of the Company and its Subsidiaries to Permitted Joint Ventures in accordance
with the provisions of
Section 11.8;
(f) during
such time as no Specified Default or Event of Default has occurred and is
continuing (or would result therefrom), any Resale Transactions to Persons
other than Affiliates for fair market value;
(g) other
sales, transfers and other dispositions by the Company and its Subsidiaries
which are permitted by Section
10.14,
11.3 or
11.5;
and
(h) sales,
transfers and other dispositions by the Company and its Subsidiaries of assets
with an aggregate fair market value not to exceed (i) $50,000,000 in the
calendar year ending December 31, 2006 and (ii) $25,000,000 in any calendar
year thereafter; provided,
however, that,
in the case of clauses (i) and (ii), no Default or Event of Default shall be in
effect prior to or after giving effect to any such sale, transfer or other
disposition; provided,
further, that
in the event that any amount of assets permitted to be disposed of in any
calendar year pursuant to this clause (h) is not disposed of during such
calendar year, such amount may be carried over for dispositions in any
subsequent calendar year (up to a maximum amount not to exceed $50,000,000 and
limited to an aggregate fair market value of $50,000,000 for any calendar
year); provided,
further, that,
in the case of clauses (i) and (ii), all Net Proceeds of such sale, transfer or
other disposition are applied to the payment of the Payment Obligations as set
forth in, and to the extent required by, Section
7.3(b)(ii)).
Section
11.7 Limitation
on Restricted Payments. (a)
The Company will not, and will not permit any of its Subsidiaries to, make any
Restricted Payment, except that, so long as no Default or Event of Default has
occurred and is continuing at the time such Restricted Payment is made or would
result therefrom and the representations and warranties deemed to be made
pursuant to Section
11.7(b) are
true and correct in all material respects as of the date such Restricted
Payment is made, the following Restricted Payments may be made:
(i) Restricted
Payments on account of amounts payable under the Prior Tax Sharing Agreement,
with respect to state and local taxes and federal taxes; provided,
however, that
no such Restricted Payment (whether in cash or otherwise) shall be made more
than ten Business Days prior to the date upon which the related liability to
the Internal Revenue Service (or the relevant state or local taxing authority)
for tax (including estimated taxes) is paid (or, if no such taxes are payable,
ordinarily would have been due);
(ii) Restricted
Payments made to Permitted Joint Ventures, to the extent that such Restricted
Payments are permitted pursuant to Section
11.8(e) or
Section
11.8(k);
(iii) Restricted
Payments made from time to time to finance Revlon’s purchase, redemption,
acquisition or retirement for value of, or payment of amounts owing in respect
of, any shares, interests, rights to purchase, warrants, options,
participations, stock appreciation rights, performance units or other
equivalents or interests in the equity of Revlon held by any current or former
director, officer, consultant or employee of Revlon, the Company or any
Subsidiary of the Company in such person’s role as a director, officer,
consultant or employee (or by their estates or any beneficiaries of their
estates); provided,
however, that
(x) the sum of (1) the aggregate amount of Restricted Payments made pursuant to
this clause
(iii) and (2)
the aggregate amount of open-market purchases of common stock and restricted
stock of Revlon together with any
77
other
investments made as permitted under Section
11.8(g), does
not exceed $8,000,000 in any calendar year (including calendar year 2006) and
(y) amounts available pursuant to this clause
(iii) to be
utilized for Restricted Payments during any calendar year which are not
utilized during such year may be carried forward and utilized in any succeeding
calendar year;
(iv) subject
to the limitations set forth in Sections 11.8(f) and
11.8(g),
Restricted Payments made from time to time to finance the investments
contemplated by Sections 11.8(f) and
11.8(g);
and
(v) additional
Restricted Payments in an aggregate amount, together with the aggregate
principal amount of all Indebtedness defeased, prepaid or otherwise repurchased
pursuant to Section
11.9(c)(vi), not to
exceed the sum
of (x) $15,000,000 and (y) the portion, if any, of Capital Contributions
received by the Company that (1) are not used to defease, prepay or otherwise
repurchase the principal amount of any Indebtedness under the Subordinated
Notes Indenture and (2) do not constitute a Cure Amount or an
Existing Credit Agreement Cure Amount.
(b) The
making of each Restricted Payment pursuant to Section
11.7(a) shall
constitute a representation and warranty by the Company that, on and as of the
date upon which such Restricted Payment is made (both before and after giving
effect to the making thereof), the representations and warranties contained in
Section
8.10 and
Section
8.15(a) are
true and correct.
Section
11.8 Limitation
on Investments. The
Company will not, and will not permit any of its Subsidiaries to, make or
commit to make any advance, loan, extension of credit or capital contribution
to, or purchase of any stock, bonds, notes, debentures or other securities of,
or make any other investment in, any Person, except as otherwise permitted by
Section
11.10 and
except that:
(a) each of
the Company and its Subsidiaries may make or commit to make investments in cash
or Cash Equivalents held in a Deposit Account or a Control Account, subject to
Section
10.19, if
applicable, with respect to the Company and the Subsidiary
Guarantors;
(b) each of
the Company and its Subsidiaries may make or commit to make investments in
contract rights, accounts and chattel paper (as defined in the UCC), put and
call foreign exchange options to the extent necessary to hedge foreign exchange
exposures or foreign exchange spot and forward contracts, and notes receivable,
arising or acquired in the ordinary course of business and in Hedging
Contracts;
(c) the
Company may make or commit to make any loan or advance or purchase any
securities constituting a Restricted Payment permitted by Section
11.7;
(d) if in
the reasonable judgment of the Company, any customer is deemed to be in a
reorganization or unable to make a timely cash payment on Indebtedness or other
obligations of such customer owing to it, each of the Company and its
Subsidiaries may invest or commit to invest in securities issued by such
customer or any Affiliate thereof (other than any Affiliate of the Company) in
lieu of cash payment; provided,
however, that
the Company or such Subsidiary, as the case may be, has paid no new
consideration (other than forgiveness of Indebtedness or other obligations)
therefor;
78
(e) each of
the Company and its Subsidiaries may make or commit to make Investments;
provided,
however, that
(i) no Default or Event of Default has occurred and is continuing at the time
of such Investment (or would result therefrom) and (ii) the
aggregate Investment Consideration (excluding any such consideration paid with
the proceeds of, or Stock or Stock Equivalents issued pursuant to, an Equity
Offering and as reduced by the amount equal to the Net Proceeds received by the
Company and its Subsidiaries from any Net Proceeds Event on account of any
Resale Transaction with respect to any such Investment) with respect to all
such Investments made after the date hereof pursuant to this Section
11.8(e) plus
Contingent Obligations incurred after the date hereof pursuant to Section
11.4(f) by
virtue of this Section
11.8(e) plus
Intercompany Investments made after the date hereof pursuant to Section
11.8(j)(iii)(z) does
not exceed $50,000,000
at any one time outstanding;
(f) each of
the Company and its Subsidiaries may make or commit to make loans to officers
and directors of the Company and its Subsidiaries in the ordinary course of
business to the extent permitted by applicable law, in an aggregate principal
amount which, in the aggregate with all then outstanding Contingent Obligations
permitted by
Section 11.4(g), does
not exceed $7,000,000 at any one time outstanding from the Company and its
Subsidiaries to all such officers and directors;
(g) the
Company (and, in the case of clause
(ii) below, the
Company’s Domestic Subsidiaries) may make or commit to make investments in
(i) open-market purchases of common stock of Revlon and (ii) any other
investment available to highly compensated employees under any
“excess
401-(k) plan”
of the Company (or any of its Domestic Subsidiaries, as applicable), in each
case to the extent necessary to permit the Company (or such Domestic
Subsidiary, as applicable) to satisfy its obligations under such
“excess
401-(k) plan”
for highly compensated employees; provided,
however, that
the aggregate amount of such purchases and other investments under this
Section
11.8(g)
together with any Restricted Payments made as permitted under
Section 11.7(a)(iii) does
not exceed $8,000,000 in any calendar year (including calendar year 2006) and
(ii) amounts available pursuant to this Section
11.8(g) to be
utilized for investments during any year which are not utilized during such
year may be carried forward and utilized in any succeeding year;
(h) subject
to the limitations set forth in Section
11.7(a)(iii), each of
the Company and its Subsidiaries may make or commit to make investments from
time to time in connection with the transactions contemplated by Section
11.7(a)(iii);
(i) each of
the Company and its Subsidiaries may make or commit to make Permitted
Acquisitions;
(j) each of
the Company and its Subsidiaries may make or commit to make any advance, loan,
extension of credit or capital contribution to, or purchase any Stock or Stock
Equivalents, bonds, notes, debentures or other securities of, or make any other
investment in, any of the Company (except for any Stock, Stock Equivalents or
bonds, notes, debentures or other securities or other Indebtedness, other than
intercompany Indebtedness incurred in the ordinary course of business, of the
Company) or any Subsidiary (each an “Intercompany
Investment”);
provided,
however, that
with respect to any Intercompany Investment made after the date hereof by the
Company or any Domestic Subsidiary in any Subsidiary that is not a Guarantor,
(i) such Intercompany Investment shall only be made in the ordinary course of
business or consistent with past practice, (ii) if such Intercompany Investment
is made in cash as an advance, loan or other extension of credit, such
Intercompany Investment shall be evidenced by an intercompany note which, in
the case of any such note held by the Company or any Subsidiary Guarantor,
shall be
79
promptly pledged to the Collateral Agent, for the benefit of the Secured
Parties, pursuant to the relevant Security Documents and (iii) if such
Intercompany Investment is made in cash as a capital contribution, such
Intercompany Investment shall only be made in a Foreign Subsidiary (w) in an
aggregate amount such that after giving effect thereto, such Foreign Subsidiary
(A) is in compliance with all material Requirements of Law applicable to it
with respect to capitalization, (B) has sufficient capital with which to
conduct its business in accordance with past practice and (C) is not
undercapitalized to such an extent that, solely as a result of such
undercapitalization, any creditor of such Foreign Subsidiary would be deemed
under the laws of any relevant jurisdiction to owe a fiduciary duty to any
other creditor of such Foreign Subsidiary, (x) to the extent that on the date
of such contribution, the cash contributed to the capital of the applicable
Foreign Subsidiary, if loaned or advanced through an intercompany loan
evidenced by a note, would either (A) not cause the Company or the Domestic
Subsidiary of the Company acquiring such note to be deemed to be doing business
in any jurisdiction outside of the United States or otherwise subject to
taxation or regulation in such jurisdiction or (B) not require the Foreign
Subsidiary issuing such note to withhold from any payment made in respect
thereof any amount now or hereafter imposed, levied, collected or assessed by
any relevant jurisdiction, or any political subdivision or taxing authority
thereof or therein, (y) in connection with any sale, transfer or other
disposition of capital stock or other equity interests or assets of such
Foreign Subsidiary permitted hereunder, to the extent that the aggregate amount
of such capital contribution does not exceed the aggregate amount outstanding
of any Indebtedness and other obligations of such Foreign Subsidiary owing to
the Company or any of its Domestic Subsidiaries that was in each case created
or otherwise incurred on or prior to the date of such sale, transfer or other
disposition and which Indebtedness and other obligations are outstanding
immediately prior to such sale, transfer or other disposition or (z)
in
connection with the formation or organization of such Foreign Subsidiary, to
the extent that the amounts expended after the date hereof pursuant to this
Section
11.8(j)(iii)(z) plus
amounts expended after the date hereof pursuant to Section
11.8(e) plus
Contingent Obligations incurred after
the date hereof pursuant to Section
11.4(f) by
virtue of Section
11.8(e) do not
exceed $50,000,000 at any one time outstanding;
and
(k) each of
the Company and its Subsidiaries may make or commit to make Investments in
Permitted Joint Ventures; provided,
however, that
(i) no Default or Event of Default has occurred and is continuing at the time
of such Investment (or would result therefrom) and (ii) the aggregate
Investment Consideration (excluding
any such consideration paid with the proceeds of, or Stock or Stock Equivalents
issued pursuant to, an Equity Offering and as
reduced by the amount equal to the Net Proceeds received by the Company and its
Subsidiaries from any Net Proceeds Event on account of any Resale Transaction
with respect to any such
Investment)
with respect to all such Investments made
pursuant to this clause (k) does
not exceed $50,000,000 at any one time outstanding; provided,
further, that
none of the Company or any of its Subsidiaries shall commit to make any such
Investment unless such Investment is then permitted hereunder.
Section
11.9 Limitation
on Payments on Account of Debt; Synthetic Purchase
Agreements. The
Company will not, and will not permit any of its Subsidiaries to:
(a) amend,
waive, supplement or otherwise modify in any material respect (including
without limitation, amendments of the interest rate or payment terms thereof)
(i) any Indenture or any agreement governing the Subordinated Notes or any
agreement governing any refinancing Indebtedness of the Indentures or the Term
Loans incurred pursuant to Section
11.2(b), if the
proposed amendment, waiver or supplement is adverse to the Lenders, (ii) any
agreement governing the M&F Loans on terms and conditions (taken as whole)
unless such amendment, waiver, supplement or modification is no less favorable
to the Company or the
80
Lenders
than the terms and conditions of the M&F Loans as in effect on the Closing
Date (taken as a whole), (iii) any Indebtedness permitted pursuant to
Section
11.2(o), if the
proposed amendment, waiver or supplement is adverse to the Lenders or (iv) any
other Indebtedness not permitted pursuant to the terms of this Agreement as in
effect on the date hereof but entered into with the consent of the Required
Lenders, if the proposed amendment, waiver or supplement is adverse to the
Lenders;
(b) amend,
waive, supplement or otherwise modify any Capital Contribution
Note;
(c) directly
or indirectly, defease, or make or commit to make any optional prepayment of,
or otherwise repurchase, any of its Indebtedness, except:
(i) Indebtedness
under this Agreement;
(ii) Indebtedness
which is permitted by paragraphs
(c),
(d),
(f),
(g) through
(m) and
(o) through
(q) of
Section
11.2;
(iii) Indebtedness
which is permitted by paragraph
(b) of
Section
11.2 with
proceeds of any refinancing of such Indebtedness pursuant to Sections
11.2(b),
11.2(i) or
11.2(o) or with
proceeds of any Capital Contribution that do not constitute a Cure Amount or an
Existing Credit Agreement Cure Amount; provided, that
in the case of any refinancing with Indebtedness pursuant to Section
11.2(o), such
refinancing Indebtedness matures at least six months after the Term Loan
Maturity Date;
(iv) Indebtedness
(including, without limitation, Indebtedness which is permitted under
Section
11.2(b)) in an
aggregate amount not to exceed the amount of Excess Cash Flow in any fiscal
year not required to be applied as a mandatory prepayment of the Term Loans
pursuant to Section
7.3(a);
provided,
however, that
the prepayment required by Section
7.3(a) with
respect to such fiscal year has been made;
(v) Indebtedness
(including,
without limitation, Indebtedness which is permitted under Section
11.2(b))
that is
repaid with the proceeds of Equity Offerings by Revlon; and
(vi) additional
Indebtedness (including,
without limitation, Indebtedness which is permitted under Section
11.2(b))
in an
aggregate principal amount, together with the aggregate amount of all
Restricted Payments made pursuant to Section
11.7(a)(v), not to
exceed the sum of (x) $15,000,000 and (y) the portion, if any, of Capital
Contributions received by the Company that are not used to defease, prepay or
otherwise repurchase the principal amount of any Indebtedness under the
Subordinated Notes Indenture; and
(d) enter
into or be party to, or make any payment under, any Synthetic Purchase
Agreement.
Section
11.10 Limitation
on Transactions with Affiliates. The
Company will not, and will not permit any of its Subsidiaries to, (a) engage in
any transaction with any Affiliate of the Company, except upon terms no less
favorable to the Company or such Subsidiary, as the case may be, than it would
obtain in a comparable arm’s length transaction with a Person not an
Affiliate, or (b) sell, transfer, convey, assign or otherwise dispose of any
material asset to any Affiliate of the Company; provided,
however, that
nothing contained in this Section
11.10
shall
81
prohibit (x) the Company from making Restricted Payments permitted by
Section
11.7, (y)
the Company or any of its Subsidiaries from engaging in any transaction
pursuant to and in accordance with the Occupancy Agreement, dated as of June 1,
2001, between M&FG and the Company, as amended by Amendments thereto dated
as of October 14, 2003 and June 14, 2004 and (z) payments required to be made
by the Company with respect to its obligations under the Company Tax Sharing
Agreement.
Section
11.11 Hazardous
Materials. The
Company will not, and will not permit any of its Subsidiaries to, cause or
knowingly permit any of the Mortgaged Properties or any other of its assets to
be used to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce or process Hazardous Materials, except in compliance
in all respects with all applicable Environmental Laws and in a manner that
would not reasonably be expected to result in a liability under any applicable
Environmental Laws, nor release, discharge, dispose of or permit or suffer any
release or disposal as a result of any act or omission on its part, or on the
part of any tenant or subtenant, of Hazardous Materials onto any such property
or asset in violation of any Environmental Law or in a manner that would
reasonably be expected to result in a liability under any applicable
Environmental Laws, except where such non-compliance or liability would not be
reasonably likely to have a Material Adverse Effect.
Section
11.12 Accounting
Changes.
(a) The
Company will not, and will not permit any of its Subsidiaries to, make or
permit to be made any change in accounting policies affecting the presentation
of financial statements or reporting practices from those employed by the
Company in the audited financial statements contained in its Annual Report on
Form 10-K for its fiscal year ended December 31, 2005, unless (i) such changes
are required or permitted by GAAP, (ii) such changes are disclosed to the
Lenders through the Administrative Agent or otherwise and (iii) if requested by
the Administrative Agent, relevant prior financial statements are reconciled
(in form and detail reasonably satisfactory to the Administrative Agent) to
show comparative results and reconciliations.
(b) Notwithstanding
anything to the contrary contained herein, compliance with Section
11.1 shall
be determined based upon GAAP as in effect as of the date of, and as used in,
the preparation of the audited consolidated financial statements of the Company
and its Subsidiaries for the fiscal year ended December 31, 2005.
Section
11.13 Limitation
on Negative Pledge Clauses.
The
Company will not, and will not permit any of its Subsidiaries to, enter into
any agreement (other than the Loan Documents and
documents related to the M&F Loans or the
Existing Credit Agreement or
any
permitted
refinancing thereof) with any Person which prohibits or limits the ability of
the Company or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien securing the Payment Obligations upon any of its properties,
assets or revenues, whether now owned or hereafter acquired; provided,
however, that
any of the Company and its Subsidiaries may enter into any such agreement to
the extent that such agreement is in connection with a Lien permitted by
paragraph (c),
(d),
(f),
(h),
(j),
(k),
(m),
(n),
(o),
(p),
(q) or
(r) of
Section
11.3 and any
such prohibitions or limitations apply only to the property encumbered by such
Lien.
Section
11.14 Amendment
of Company Tax Sharing Agreement. The
Company will not, and will not permit any of its Subsidiaries to, amend,
modify, change, waive, cancel or terminate any term or condition of the Company
Tax Sharing Agreement in a manner adverse to the interests of the Company or
the Lenders without the prior written consent of the Required Lenders.
82
Section
11.15 Limitations
on Restrictions on Subsidiary Distributions. The
Company shall not, and shall not permit any of its Subsidiaries to, agree to
enter into or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of such Subsidiary to pay dividends or
make any other distribution or transfer of funds or assets or make loans or
advances to or other investments in, or pay any Indebtedness owed to, the
Company or any other Subsidiary of the Company, except (i) pursuant to the Loan
Documents and the Existing Credit Agreement and any permitted refinancing
thereof, (ii) any agreements governing purchase money Indebtedness or Capital
Lease Obligations permitted by Section
11.2(l) (in
which latter case, any prohibition or limitation shall only be effective
against the assets financed thereby) and (iii) pursuant to any agreement
relating to a disposition of property of the Company or any Subsidiary
permitted under this Agreement, to the extent such restrictions restrict the
transfer of the property subject to such agreement.
Section
11.16 Limitation
on Activities of RPH.
Notwithstanding anything to the contrary in this Agreement or any other Loan
Document, the Company shall not cause or permit RPH to (a) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage in, any
business or operations, (b) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or financial obligations or (c) own, lease,
manage or otherwise operate any properties or assets (including cash and Cash
Equivalents), in each case, other than (i) those incidental to RPH’s
ownership and licensing of the Intellectual Property transferred to it in
connection with the Company’s disposition of its professional products
business and (ii) nonconsensual obligations imposed by Requirement of Law and
obligations with respect to its capital stock.
Section
11.17 Prohibition
on Speculative Hedging Transactions. The
Company shall not, and shall not permit any of its Subsidiaries to, engage in
any speculative transaction involving Hedging Contracts, except as expressly
permitted under this Agreement and for the sole purpose of hedging in the
ordinary course of business.
EVENTS
OF DEFAULT
Section
12.1 Events
of Default. Upon
the occurrence and during the continuance of any of the following
events:
(a) Payments.
Failure by the Company to pay any principal of any Loan or Note, when due in
accordance with the terms thereof and hereof; or failure by the Company to pay
any interest on any Loan or Note, within five days after the date when due in
accordance with the terms thereof and hereof or any fee or other amount payable
in connection with any Loan Document within five days after the date when due;
or
(b) Representations
and Warranties. Any
representation or warranty made or deemed made by the Company or any other Loan
Party in any Loan Document or which is contained in any certificate or
financial statement furnished at any time under or in connection herewith or
therewith shall prove to have been incorrect, false or misleading in any
material respect on or as of the date when made or deemed to have been made;
or
(c) Certain
Covenants.
(i) [Intentionally
omitted.]
83
(ii) Default
by any Loan Party in the observance or performance of any negative covenant or
agreement contained in Article
XI;
or
(iii) Default
by any Loan Party in the observance of any covenant or agreement contained in
Sections
10.4
(with
respect to the first sentence thereof) or 10.7(a);
or
(d) Other
Covenants.
Default by any Loan Party in the observance or performance of any other
covenant or agreement contained or incorporated by reference in this Agreement
or any other Loan Document and the continuance of such default unremedied for a
period of 15 days; or
(e) Effectiveness
of the Security Documents. On or
after the Closing Date and subject to Section
10.16, (i)
for any reason (other than any act on the part of any Agent or any Lender) any
Security Document ceases to be or is not in full force and effect or any of the
Liens intended to be created by any Security Document ceases to be or is not a
valid and perfected Lien having the priority contemplated thereby with respect
to Collateral having an aggregate fair market value in excess of $1,000,000 or
(ii) the Company, or any other Loan Party shall assert in writing that any
Security Document has ceased to be or is not in full force and effect;
or
(f) Cross
Default. Any of
Revlon or any of its Subsidiaries shall Cross Default;
(g) Control
Persons. (i)
Any Person (or group of Persons acting in concert), other than Xxxxxx X.
Xxxxxxxx or, in the event of his incompetence or death, his estate, heirs,
executor, administrator, committee or other personal representative and his (or
any of their) Affiliates (without giving effect to clause
(a) of the
definition thereof) (collectively, “ROP”),
shall “control”
the Company, as such term is used in Rule 405 promulgated under the Securities
Act of 1933, as amended, or (ii) in the event that ROP ceases to so
“control”
the Company, any other Person (or group of Persons acting in concert) shall
own, directly or indirectly, equity interests representing more than 35% of the
total voting power represented by the issued and outstanding equity interests
of the Company then entitled to vote in the election of the Board of Directors
of the Company, or (iii) the Continuing Directors shall cease to constitute at
least a majority of the board of directors of the Company; or
(h) Ownership. Revlon
shall at any time for any reason cease to be the beneficial and record owner of
100% of the outstanding shares of capital stock and other equity interests of
the Company; or
(i) Default
under Company Tax Sharing Agreement. At any
time, any party (other than the Company or any of its Subsidiaries) shall
default in its payment obligations under the Company Tax Sharing Agreement;
or
(j) Commencement
of Bankruptcy or Reorganization Proceeding. (i)
Revlon, the Company or any of its Subsidiaries shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it as bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, wind-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets; or,
(ii) there shall be
84
commenced
against Revlon, the Company or any of its Subsidiaries any such case,
proceeding or other action referred to in clause
(i) of this
paragraph
(j) which
results in the entry of an order for relief or any such adjudication or
appointment remains undismissed, undischarged or unbonded for a period of 60
days; provided,
however, that
the Company, for itself and as agent for each of its Subsidiaries, hereby
expressly authorizes each Agent and each Lender to appear in any court
conducting any such case, proceeding or other action during such 60-day period
to preserve, protect and defend their rights under the Loan Documents; or (iii)
there shall be commenced against Revlon, the Company or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) Revlon, the
Company or any of its Subsidiaries shall take any action authorizing, or in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth above in this paragraph
(j); or (v)
Revlon, the Company or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(k) Material
Judgments. (i)
One or more judgments or decrees shall be entered against the Company or any of
its Subsidiaries involving in the aggregate a liability of $5,000,000 or more
or any judgment or decree shall be entered against Revlon in excess of
$20,000,000 (or, in each case, with respect to any other currency, the
Equivalent thereof) and all such judgments or decrees shall not have been
vacated, stayed, satisfied, discharged or bonded (or, if available subject to
the foreign equivalent thereof) pending appeal within 60 days from the entry
thereof (provided that no Event of Default shall arise under this Section
12.1(k) as a
result of any such judgment or decree to the extent that (x) it is covered by a
valid policy of insurance covering payment thereof which has been provided by
an Eligible Insurer and (y) such Eligible Insurer has been notified of, and has
not disputed the claim made for payment of, the amount of such judgment or
decree) or (ii) any non-monetary judgment or order shall be rendered against
the Company or any of its Subsidiaries that is reasonably likely to have a
Material Adverse Effect, and in the case of either clause
(i) or
(ii), there
shall be any period of 10 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect unless such judgment or order shall have been vacated,
satisfied, discharged or bonded (or, if available subject to the foreign
equivalent thereof) pending appeal; or
(l) ERISA. (i)
Any Person shall engage in any “prohibited transaction” (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any “accumulated funding deficiency” (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or, for
years for which funding requirements are governed by the Pension Protection Act
of 2006, any failure to satisfy the applicable minimum funding standard under
Section 412(a)(2) of the Code, whether or not waived, shall exist with respect
to any Plan, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Company or any Commonly Controlled Entity of the Company shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist,
with respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all
85
other
such events or conditions, if any, would be reasonably likely to have a
Material Adverse Effect; or
(m) Matters
Relating to Subordinated and Other Indebtedness. On or
after the Closing Date, (i) if for any reason (other than any act on the part
of any Agent or any Lender) (A) any Affiliate Subordination Letter then
required to be delivered by an Affiliate pursuant to the terms of this
Agreement shall cause to be or shall not be in full force and effect or (B) any
Affiliate which is party to an Affiliate Subordination Letter shall assert in
writing that the Affiliate Subordination Letter to which it is a party has
ceased to be or is not in full force and effect or (ii) any Subordinated Notes
or other Indebtedness (other than trade credit in the ordinary course of
business and any Capital Contribution Note) of the Company or any of its
Subsidiaries shall be held by (or otherwise owing to) any Affiliate of the
Company (other than officers and directors of the Company) if such Affiliate
has not executed and delivered an agreement substantially in the form of the
Affiliate Subordination Letter within ten Business Days following the
acquisition of such Indebtedness by such Affiliate; provided,
however, that
an Affiliate Subordination Letter shall not be required to be delivered with
respect to (i) trade credit in the ordinary course of business, (ii) any
Capital Contribution Note, (iii) any M&F Loan, (iv) any Indebtedness
permitted under Section
11.2(o) or (v)
any Indebtedness of the Company or any of its Subsidiaries of a class that is
publicly held or issued pursuant to a Rule 144A offering, including
Indebtedness issued pursuant to an Indenture; or
(n) Additional
Subsidiaries. Revlon
shall create or otherwise have any direct Subsidiary other than the Company;
or
(o) Capital
Contributions. Revlon
shall fail to promptly (and in any event within five Business Days following
receipt by it of the applicable Net Proceeds) make Capital Contributions to the
Company in an amount equal to 100% of the Net Proceeds of any Equity Offering
(other than amounts which are applied by Revlon to repurchase, repay, defease
or redeem any Subordinated Notes, Existing Senior Notes, Multi-Currency Loans
(with a corresponding reduction of the revolving commitments under the Existing
Credit Agreement) or other Indebtedness for borrowed money of the Company
scheduled to mature on or prior to the Term Loan Maturity Date, which
Indebtedness so purchased is substantially concurrently contributed by Revlon
to the capital of the Company or transferred in exchange for Stock of the
Company); or
(p) Revlon
Operations. Revlon
shall have any meaningful assets (other than any Capital Contribution Notes or
rights with respect to the M&F Investment Agreement, the Company Tax
Sharing Agreement and the Stockholders Agreement) or Indebtedness (other than
(w) Indebtedness the Net Proceeds of which are applied to prepay the Term Loans
to the extent required by Section
7.3(b)(i) or to
repay Multi-Currency Loans under the Existing Credit Agreement with a
corresponding reduction of the revolving credit commitments thereunder, (x)
Indebtedness of the type contemplated by clause
(i) of the
definition of such term, (y) Indebtedness in respect of the Guaranty and (z)
Indebtedness in respect of the Indentures or other permitted Indebtedness of
the Company) or shall conduct any meaningful business, other than (i) its
ownership of the Company and (ii) such activities as are customary for a
publicly traded holding company which is not itself an operating company;
or
(q) M&F
Loans. Any
M&F Lender shall have failed to fund any binding commitments by such
M&F Lender under any agreement governing any M&F Loan, which request
shall be sent promptly to the Administrative Agent pursuant to Section
10.2(f) hereof;
or
86
(r) [intentionally
omitted]
(s) Subordinated
Notes. The
Subordinated Notes or the guarantees thereof (or any refinancing Indebtedness
of the Subordinated Notes incurred pursuant to Section 11.2(b)(vi)(A)) shall
cease, for any reason, to be validly subordinated to the Payment Obligations as
provided in the Subordinated Note Indenture (or the agreement governing such
refinancing Indebtedness) or the trustee in respect of the Subordinated Notes
(or the agreement governing such refinancing Indebtedness) or the holders of at
least 25% in aggregate principal amount of the Subordinated Notes (or such
refinancing Indebtedness) shall so assert; or
(t) Additional
Equity Offerings. (i)
The aggregate commitments by the M&F Lenders to provide the M&F Loans
to the Company (whether such commitments are funded or unfunded) shall be less
than $87,000,000 at any time during the period from the date hereof to the date
on which Revlon shall have consummated one or more Equity Offerings after the
date hereof generating at least $75,000,000 in gross proceeds and made Capital
Contributions to the Company in an amount equal to the Net Proceeds in respect
thereof, other than amounts which are applied by Revlon to repurchase, repay,
defease or redeem any Subordinated Notes, Existing Senior Notes, Multi-Currency
Loans (with a corresponding reduction of the revolving commitments under the
Existing Credit Agreement) or other Indebtedness for borrowed money of the
Company scheduled to mature on or prior to the Term Loan Maturity Date
(provided that no such Equity Offering shall be required hereunder), or (ii)
the Company shall fail to apply any Capital Contributions referred to in clause
(i) above promptly after its receipt thereof to repurchase, repay, defease or
redeem any Subordinated Notes, Existing Senior Notes or other Indebtedness for
borrowed money of the Company scheduled to mature on or prior to the Term Loan
Maturity Date, including, without limitation, repayment of Term Loans and
repayment of any outstanding revolving loans under the Existing Credit
Agreement without any corresponding permanent reduction in the aggregate
commitment thereunder;
then,
and in any such event, (x) if such event is an Event of Default specified in
clause
(i), (ii) or
(iii) of
paragraph
(j) of this
Section
12.1 with
respect to any Loan Party, automatically the Term Loan Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement and the Notes, and (y) if such
event is any other Event of Default, with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Company, declare all or any part
of the Term Loans (with accrued interest thereon) and any other amounts owing
under this Agreement to the Lenders and the Term Loan Notes to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
In addition to the remedies set forth above, the Administrative Agent may
direct the Collateral Agent to exercise any remedies provided for by the
Security Documents in accordance with the terms thereof or any other remedies
provided by applicable law.
Except
as expressly provided above in this Section
12.1,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
Section
12.2 Right
to Cure.
(a) Notwithstanding
anything to the contrary contained in Section
12.1(c)(ii), in the
event that the Company fails to comply with the requirements of the covenant
set forth in Section
11.1 for any
period, at any time on or before the
tenth day after the date of delivery of a Notice of Intent to Cure by the
Company to the Administrative Agent pursuant to Section
10.2(b), the
Company shall have the right (the “Cure
Right”)
to issue Permitted Cure Securities to Revlon
87
for
cash or otherwise receive Capital Contributions in cash from Revlon, and upon
the receipt by the Company of such cash (the “Cure
Amount”),
the covenant set forth in Section
11.1 shall
be recalculated, giving effect to a pro forma increase to EBITDA in accordance
with the definition thereof for the fiscal
quarter for
which such Cure Right was exercised in an
amount equal to such Cure Amount (and
such increase shall be included in each period that includes such fiscal
quarter);
provided,
however, that
such pro forma adjustment to EBITDA shall be given solely for the purpose of
determining the existence of a Default or an Event of Default under the
covenant set forth in Section
11.1 with
respect to any period that includes the fiscal quarter for which such Cure
Right was exercised and not for any other purpose under any Loan
Document.
(b) If,
after the exercise of the Cure Right and the recalculations pursuant to
clause
(a) above,
the Company shall then be in compliance with the requirements of the covenant
set forth in Section
11.1 for
such fiscal quarter, the Company shall be deemed to have satisfied the
requirements
of the
covenant set forth in Section
11.1 as of
the relevant date of determination with the same effect as though there had
been no failure to comply therewith at such date, and the applicable Default or
Event of Default under Section
12.1(c)(ii) that
had occurred shall be deemed cured; provided,
however, that
(i) the Company may not exercise the Cure Right more than two times in any four
fiscal quarter period, (ii) with respect to any exercise of the Cure Right, the
Cure Amount shall be no greater than the amount required to cause the Company
to be in compliance with Section
11.1 and
(iii) to the extent that the Cure Amount proceeds are used to repay
Indebtedness, such Indebtedness shall not be deemed to have been repaid for
purposes of calculating the covenant in Section
11.1 for the
period with respect to which such Cure Amount applies.
THE
AGENTS
Section
13.1 Authorization
and Action.
(a) Each
Lender hereby appoints Citicorp as the Administrative Agent hereunder and each
Lender authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent under such agreements
and to exercise such powers as are reasonably incidental thereto. Without
limiting the foregoing, each Lender hereby authorizes the Administrative Agent
to execute and deliver, and to perform its obligations under, each of the Loan
Documents to which the Administrative Agent is a party, to exercise all rights,
powers and remedies that the Administrative Agent may have under such Loan
Documents.
(b) Each
Lender hereby acknowledges the appointment of Citicorp as the Collateral Agent,
and hereby authorizes the Collateral Agent to take such action as agent on its
behalf and to exercise such powers, as set forth in the Intercreditor
Agreement.
(c) As to
any matters not expressly provided for by this Agreement and the other Loan
Documents (including enforcement or collection), the Agents shall not be
required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of (i) in the case of the
Administrative Agent, the Required Lenders (or, where required by the express
terms of this Agreement, a greater proportion of the Lenders), and such
instructions shall be binding upon each Lender, and (ii) in the case of the
Collateral Agent, as set forth in the Intercreditor Agreement, and such
instructions shall be binding upon each Lender (in each case,
88
subject
to any limitations imposed thereon in the Intercreditor Agreement);
provided,
however, that
no Agent shall be required to take any action that (i) such Agent in good faith
believes exposes it to personal liability unless such Agent receives an
indemnification satisfactory to it from the applicable Lenders with respect to
such action or (ii) is contrary to this Agreement or any Requirement of Law.
Each Agent agrees to give to each applicable Lender prompt notice of each
notice given to it by any Loan Party pursuant to the terms of this Agreement or
the other Loan Documents.
(d) In
performing its functions and duties hereunder and under the other Loan
Documents, each Agent is acting solely on behalf of (i) the applicable Lenders
and in the case of the Collateral Agent, the Secured Parties and its duties are
entirely administrative in nature. No Agent assumes, or shall be deemed to have
assumed, any obligation other than as expressly set forth herein and in the
other Loan Documents or any other relationship as the agent, fiduciary or
trustee of or for any Lender, Secured Party or holder of any other Payment
Obligation. Each Agent may perform any of their duties under any Loan Document
by or through their agents or employees.
(e) The
Arranger, the Syndication Agent and the Documentation Agent shall have no
obligations or duties whatsoever in such capacities under this Agreement or any
other Loan Document and shall incur no liability hereunder or thereunder in
such capacities.
Section
13.2 Agents’
Reliance, Etc. None
of the Agents, any of their Affiliates or any of their respective directors,
officers, agents or employees shall be liable for any action taken or omitted
to be taken by it, him, her or them under or in connection with this Agreement
or the other Loan Documents, except for its, his, her or their own gross
negligence, bad faith or willful misconduct. Without limiting the foregoing,
each of the Agents (a) may treat the payee of any Note as its holder until such
Note has been assigned in accordance with Section
14.6, (b)
may rely on the Register to the extent set forth in
Section 14.6, (c)
may consult with legal counsel (including counsel to the Company or any other
Loan Party), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts, (d) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
made by or on behalf of Revlon, the Company or any of the Company’s
Subsidiaries in or in connection with this Agreement or any other Loan
Document, (e) shall not have any duty to ascertain or to inquire either as to
the performance or observance of any term, covenant or condition of this
Agreement or any other Loan Document, as to the financial condition of the
Company or any Loan Party or as to the existence or possible existence of any
Default or Event of Default, (f) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the attachment, perfection or priority of any Lien created or
purported to be created under or in connection with, this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto or
thereto and (g) shall incur no liability under or in respect of this Agreement
or any other Loan Document by acting upon any notice, consent, certificate or
other instrument or writing (which writing may be a telecopy or electronic
mail) or any telephone message believed by it to be genuine and signed or sent
by the proper party or parties.
Section
13.3 Posting
of Approved Electronic Communications.
(a) Each of
the Lenders and the Company agrees, and the Company shall cause each Subsidiary
Guarantor to agree, that the Agents may, but shall not be obligated to,
89
make the
Approved Electronic Communications available to the Lenders by posting such
Approved Electronic Communications on IntraLinks™ or a substantially
similar electronic platform chosen by the Agents to be their electronic
transmission system (the “Approved
Electronic Platform”).
(b) Although
the Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified
by the Administrative Agent from time to time (including, as of the Closing
Date, a dual firewall and a User ID/Password Authorization System) and the
Approved Electronic Platform is secured through a single-user-per-deal
authorization method whereby each user may access the Approved Electronic
Platform only on a deal-by-deal basis, each of the Lenders and the Company
acknowledges and agrees, and the Company shall cause each Subsidiary Guarantor
to acknowledge and agree, that the distribution of material through an
electronic medium is not necessarily secure and that there are confidentiality
and other risks associated with such distribution. In consideration for the
convenience and other benefits afforded by such distribution and for the other
consideration provided hereunder, the receipt and sufficiency of which is
hereby acknowledged, each of the Lenders and the Company hereby approves, and
the Company shall cause each Subsidiary Guarantor to approve, distribution of
the Approved Electronic Communications through the Approved Electronic Platform
and understands and assumes, and the Company shall cause each Subsidiary
Guarantor to understand and assume, the risks of such
distribution.
(c) THE
APPROVED ELECTRONIC COMMUNICATIONS AND THE APPROVED ELECTRONIC PLATFORM ARE
PROVIDED “AS
IS”
AND “AS
AVAILABLE”.
NONE OF THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (THE
“AGENT
AFFILIATES”)
WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED ELECTRONIC
COMMUNICATIONS AND THE APPROVED ELECTRONIC PLATFORM AND EACH EXPRESSLY
DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC
COMMUNICATIONS AND THE APPROVED ELECTRONIC PLATFORM. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS) IS MADE BY THE
AGENT AFFILIATES IN CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS OR
THE APPROVED ELECTRONIC PLATFORM.
(d) Each of
the Lenders and the Company agrees, and the Company shall cause each Subsidiary
Guarantor to agree, that the Administrative Agent may, but (except as may be
required by applicable law) shall not be obligated to, store the Approved
Electronic Communications on the Approved Electronic Platform in accordance
with the Administrative Agent’s generally-applicable document retention
procedures and policies.
Section
13.4 The
Agents Individually. With
respect to its Term Loan Commitment and Loans, the Administrative Agent and the
Collateral Agent, each in their individual capacity, shall each have and may
exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender. The terms “Lenders”,
“Required
Lenders”,
and any similar terms shall, unless the context clearly otherwise indicates,
include, without limitation, the Administrative Agent and the Collateral Agent
in its individual capacity as a Lender or as one of the Required Lenders. The
90
Administrative
Agent or Collateral Agent or any of their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking,
trust or other business with, the Company and any Loan Party as if such Person
were not acting as an Agent.
Section
13.5 Lender
Credit Decision. Each
Lender acknowledges that it shall, independently and without reliance upon the
Administrative Agent or any other Lender conduct its own independent
investigation of the financial condition and affairs of the Company and each
Loan Party in connection with the making and continuance of the Loans. Each
Lender also acknowledges that it shall, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and other
Loan Documents.
Section
13.6 Indemnification. Each
Lender agrees to indemnify each Agent and each of its Affiliates, and each of
their respective directors, officers, employees, agents and advisors (to the
extent not reimbursed by the Company), from and against such Lender’s
Commitment Percentage of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements
(including fees, expenses and disbursements of financial and legal advisors) of
any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against, such Agent or any of its Affiliates, directors, officers, employees,
agents and advisors in any way relating to or arising out of this Agreement or
the other Loan Documents or any action taken or omitted by such Agent under
this Agreement or the other Loan Documents; provided,
however, that
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent’s or such Affiliate’s gross
negligence or willful misconduct. Without limiting the foregoing, each Lender
agrees to reimburse each Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including fees, expenses and disbursements of
financial and legal advisors) incurred by such Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of its rights or responsibilities under, this
Agreement or the other Loan Documents, to the extent that such Agent is not
reimbursed for such expenses by the Company or another Loan Party.
Section
13.7 Successor
Agent.
Subject to the terms of this Section
13.7, the
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Company. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent’s giving of notice of resignation, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent
selected from among the Lenders. In either case, such appointment shall be
subject to the prior written approval of the Company (which approval may not be
unreasonably withheld or delayed and shall not be required upon the occurrence
and during the continuance of an Event of Default). Upon the acceptance of any
appointment as Administrative Agent by a successor Administrative Agent, such
successor Administrative Agent shall succeed to, and become vested with, all
the rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. Prior to any
retiring Administrative Agent’s resignation hereunder as Administrative
Agent, the retiring Administrative Agent shall take such action as may be
reasonably necessary to assign to the successor Administrative Agent its rights
as Administrative Agent under the Loan
91
Documents.
After such resignation, the retiring Administrative Agent shall continue to
have the benefit of this
Article XIII as to
any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement and the other Loan Documents. If no Lender has
accepted appointment as a successor Administrative Agent within 30 days
following a retiring Administrative Agent’s notice of resignation, the
retiring Administrative Agent’s resignation shall nevertheless thereupon
become effective, and the Required Lenders shall assume and perform all of the
duties of the retiring Administrative Agent hereunder until such time, if any,
as the Required Lenders appoint a successor agent as provided for
above. The
resignation and removal of the Collateral Agent shall be governed by the
Intercreditor Agreement.
Section
13.8 Concerning
the Collateral and the Security Documents.
(a) Each
Lender agrees that any action taken by the Agent or the Required Lenders (or,
where required by the express terms of this Agreement, a greater proportion of
the Lenders) in accordance with the provisions of this Agreement or of the
other Loan Documents, and the exercise by the Administrative Agent or the
Required Lenders of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of the Lenders. Each Lender agrees that any action taken by
the Collateral Agent in accordance with the provisions of this Agreement or of
the other Loan Documents, and the exercise by the Collateral Agent of the
powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders and the other Secured Parties. Without limiting the generality of the
foregoing, the Collateral Agent shall have the sole and exclusive right and
authority to (i) act as the disbursing and collecting agent for the Lenders
with respect to all payments and collections arising in connection with the
Collateral and with the Security Documents, (ii) execute and deliver each
Security Document and accept delivery of each such agreement delivered by
Revlon, the Company or any of its Subsidiaries, (iii) act as collateral agent
for the Lenders and the other Secured Parties for purposes of the perfection of
all security interests and Liens created by such agreements and all other
purposes stated therein; provided,
however, that
the Collateral Agent hereby appoints, authorizes and directs the Administrative
Agent and each Lender to act as collateral sub-agent for the Administrative
Agent, Collateral Agent, the Lenders and the other Secured Parties for purposes
of the perfection of all security interests and Liens with respect to the
Collateral, including any Deposit Accounts maintained by a Loan Party with, and
cash and Cash Equivalents held by, the Administrative Agent and Lender, (iv)
manage, supervise and otherwise deal with the Collateral, (v) take such action
as is necessary or desirable to maintain the perfection and priority of the
security interests and Liens created or purported to be created by the Security
Documents and (vi) except as may be otherwise specifically restricted by the
terms hereof or of any other Loan Document, upon receipt of instructions from
the Administrative Agent pursuant to the Intercreditor Agreement, exercise all
remedies given to the Administrative Agent, the Lenders and the other Secured
Parties with respect to the Collateral under the Loan Documents relating
thereto, applicable law or otherwise.
(b) Each of
the Administrative Agent and the Lenders hereby authorizes and directs the
Collateral Agent (without any further notice or consent) to, promptly release
or subordinate any Lien as set forth in Section
9 of the
Intercreditor Agreement.
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ARTICLE I
MISCELLANEOUS
Section 14.1
Amendments and Waivers.
(a) Except as
otherwise expressly provided in this Agreement or the Intercreditor Agreement,
the Administrative Agent, on the one hand, and the Company, on the other hand,
may from time to time with the prior written consent of the Required Lenders
enter into written amendments, supplements or modifications for the purpose of
adding, deleting or modifying any provision of any Loan Document or changing in
any manner the rights, remedies, obligations and duties of the parties thereto,
and with the written consent of the Required Lenders, the Administrative Agent,
on behalf of the Lenders, may execute and deliver a written instrument waiving,
on such terms and conditions as may be specified in such instrument, any of the
requirements applicable to the Loan Parties, as the case may be, party to any
Loan Document, or any Default or Event of Default and its consequences;
provided, however,
that:
(i) without the
consent of any Lender, the Company and the Administrative Agent may enter into
any amendment necessary to implement the terms of any Term Facility Increase in
accordance with the terms of this Agreement (as in effect on the Closing
Date);
(ii) (A) no
amendment, waiver or consent shall, unless in writing and signed by any Agent
in addition to the Lenders required above to take such action, affect the
rights or duties of such Agent under this Agreement or the other Loan Documents
and (B) no amendment, waiver or consent shall, unless in writing and signed by
any Special Purpose Vehicle that has been granted an option pursuant to
Section 14.6(f), affect the grant or nature of such option or the right
or duties of such Special Purpose Vehicle hereunder;
(iii) no amendment,
supplement or modification of, or waiver or consent under, any of the Security
Documents to which the Collateral Agent is a party shall be effective unless in
writing and signed by the Collateral Agent (at the direction of the
Multi-Currency Administrative Agent, the Multi-Currency Lenders, the
Administrative Agent or the Lenders, as applicable, pursuant to the
Intercreditor Agreement) in addition to the Agents and Lenders required above
to take such action; and
(iv) the
Administrative Agent may, with the consent of the Company, amend, modify or
supplement any Loan Document to cure any ambiguity, typographical error, defect
or inconsistency;
provided, further, that,
except as otherwise expressly provided in this Agreement or the Intercreditor
Agreement, no such waiver, amendment, supplement or modification shall be
effective to, without the prior written consent, in addition to the Lenders
required above to take such action, of each Lender directly affected
thereby:
(v) (A) modify the
Term Loan Commitment of such Lender or subject such Lender to any additional
obligation, (B) extend any scheduled final maturity of any Loan owing to such
Lender, (C) waive or reduce, or postpone or cancel any scheduled date fixed for
the payment of (it being understood that any mandatory prepayment required
under Section 7.3 does not constitute any scheduled date fixed for
payments), principal of
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or interest on any such Loan or any fees
owing to such Lender, (D) reduce, or release the Company from its obligations
to repay, any other Payment Obligation owed to such Lender or (E) consent to
the assignment or transfer by the Company of any of its rights and obligations
under this Agreement;
(vi) amend, modify
or waive any provision of Section 7.4
(Application of Payments),
Section 7.15 (Pro Rata Treatment and
Payments) or Section 14.7 (Adjustments; Set-off);
(vii) expressly
subordinate any of the Payment Obligations or Liens securing the Payment
Obligations, except in accordance with this Agreement and the Intercreditor
Agreement;
(viii) (A) amend,
modify or waive this Section
14.1 or any other provision specifying
the Agents, Lenders or group of Lenders required for any amendment,
modification or waiver thereof or (B) change the respective percentages
specified in the definition of “Required Lenders”; or
(ix) release (A) all
or substantially all of the Collateral provided for in the Security Documents,
(B) the guarantee obligations of Revlon provided for in any Security Document
or (C) the guarantee obligations of all or substantially all of the Guarantors
(other than Revlon) provided for in the Security Documents.
(b) Any waiver,
amendment, supplement or modification pursuant to this Section 14.1
shall apply equally to each of the Lenders and shall be binding upon the
Lenders and all future holders of any of the Loans, the Notes and all other
Payment Obligations. In the case of such waiver, the parties to the Loan
Documents, the Lenders, the Collateral Agent and the Administrative Agent shall
be restored to their former positions and rights hereunder and under the Notes
and the Security Documents, and any Default or any Event of Default waived
shall, to the extent provided in such waiver, be deemed to be cured and not
continuing; but, no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. The Administrative
Agent shall, as soon as practicable, furnish a copy of each such amendment,
supplement, modification or waiver to each Lender.
(c) To the extent
(a) the consent of any Lender in its capacity as a Lender is required, but not
obtained (any such Lender whose consent is not obtained as described in this
Section 14.1(c) being referred to as a “Non-Consenting Lender”) in connection with any proposed amendment,
modification, supplement or waiver (a “Proposed Change”) and (b) the Administrative Agent shall have
consented to such Proposed Change, at the request of the Company and with the
consent of the Administrative Agent (in its sole discretion exercised
reasonably), any Eligible Assignee reasonably acceptable to the Administrative
Agent (which Eligible Assignee may be the Lender acting as the Administrative
Agent and shall have consented to such Proposed Change) shall have the right
(but not the obligation) to purchase from such Non-Consenting Lender, and such
Non-Consenting Lender shall, upon the request of the Administrative Agent, sell
and assign to such Eligible Assignee all of the Term Loan Commitments and the
Term Loans of such Non-Consenting Lender for an amount equal to the principal
balance of all applicable Loans held by such Non-Consenting Lender and all
accrued and unpaid interest and fees with respect thereto through the date of
such sale and purchase (the “Purchase Amount”); provided,
however, that such sale and purchase (and the corresponding
assignment) shall not be effective until (A) the Administrative Agent shall
have received from such Eligible Assignee an agreement in form and substance
satisfactory to the Administrative
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Agent and the Company whereby such Eligible
Assignee shall agree to be bound by the terms hereof, (B) such Non-Consenting
Lender shall have received the Purchase Amount from such Eligible Assignee and
(C) the Company shall have paid such Non-Consenting Lender an amount equal to
the Prepayment Fee, if any, on the aggregate outstanding principal amount of
all Term Loans subject to such sale and purchase (which sale and purchase shall
constitute a prepayment of such Term Loans). Each Lender agrees that, if it
becomes a Non-Consenting Lender, it shall execute and deliver to the
Administrative Agent (x) an Assignment and Acceptance to evidence such sale and
assignment and (y) to the extent the Term Loan Commitments and Loans subject to
such Assignment and Acceptance are evidenced by a Note or Notes, such Note or
Notes; provided, however, that
the failure of any Non-Consenting Lender to execute an Assignment and
Acceptance or deliver such Note or Notes shall not render such sale and
purchase (and the corresponding assignment) invalid.
Section 14.2
Notices.
(a) Addresses for
Notices. All notices, demands,
requests, consents and other communications provided for in this Agreement or
any other Loan Document shall be given in writing, or by any telecommunication
device capable of creating a written record (including electronic mail), and
addressed to the party to be notified as follows:
Revlon Consumer Products Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President, Finance and
Treasury
Telecopy: (000) 000-0000
E-Mail Address:
xxxxxx.xxxxxx@xxxxxx.xxx
with a copy (other than of items relating to
funding and payments) to:
Revlon Consumer Products Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Executive Vice President, Chief
Legal Officer and General Counsel
Telecopy: (000) 000-0000
E-Mail Address:
xxxxxx.xxxxxxxx@xxxxxx.xxx
|
(ii)
|
if to any Lender, at its lending
office specified opposite its name on Schedule I or on
the signature page of any applicable Assignment and Acceptance;
|
|
(iii)
|
if to the Administrative
Agent:
|
Citicorp USA, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. XxXxxxxx
Telecopy no: (000) 000-0000
E-Mail Address:
xxxxx.x.xxxxxxxx@xxxxxxxxx.xxx
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with a copy (other than of items relating to
funding and payments) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Telecopy no: (000) 000-0000
E-Mail Address: xxxxxx.xxxxx@xxxx.xxx
or at such other address as shall be
notified in writing (x) in the case of the Company and the Administrative
Agent, to the other parties and (y) in the case of all other parties, to the
Company and the Administrative Agent.
(b) Effectiveness of Notices. All notices, demands, requests, consents and other
communications described in clause (a)
above shall be effective (i) if
delivered by hand, including any overnight courier service, upon delivery, (ii)
if delivered by first class, postage prepaid mail, five days after deposited in
the mails, (iii) except to any Loan Party, if delivered by posting to an
Approved Electronic Platform, an Internet website or a similar
telecommunication device requiring that a user have prior access to such
Approved Electronic Platform, website or other device, when such notice,
demand, request, consent and other communication shall have been made generally
available on such Approved Electronic Platform, Internet website or similar
device to the class of Person being notified (regardless of whether any such
Person must accomplish, and whether or not any such Person shall have
accomplished, any action prior to obtaining access to such items, including
registration, disclosure of contact information, compliance with a standard
user agreement or undertaking a duty of confidentiality) and (iv) if delivered
by electronic mail or any other telecommunications device, when transmitted to
an electronic mail address (or by another means of electronic delivery) as
provided in clause (a) above; provided,
however, that notices and communications to the Administrative
Agent pursuant to Article II, Article
VII and Article XIII
shall not be effective until received by the Administrative Agent.
(c) Use of Electronic Platform. Notwithstanding clauses
(a) and (b) above
(unless the Administrative Agent requests that the provisions of
clauses (a) and (b) above be
followed) and any other provision in this Agreement or any other Loan Document
providing for the delivery of, any Approved Electronic Communication by any
other means, the Loan Parties shall deliver all Approved Electronic
Communications to the Administrative Agent by properly transmitting such
Approved Electronic Communications electronically (in a format acceptable to
the Administrative Agent) to xxxxxxxxxxxxxxx@xxxxxxxxx.xxx or such other
electronic mail address (or similar means of electronic delivery) as the
Administrative Agent may notify the Company. Nothing in this clause(c) shall
prejudice the right of the Administrative Agent or any Lender to deliver any
Approved Electronic Communication to any Loan Party in any manner authorized in
this Agreement.
Section 14.3
No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on
the part of the Administrative Agent, the Collateral Agent or any Lender, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
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Section 14.4
Survival of Representations and
Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Notes.
Section 14.5
Payment of Expenses. (a) The Company shall, and shall cause each other Loan
Party to, upon demand, pay, or reimburse each Agent and the Arranger, as
applicable, for all of such Agent’s and Arranger’s, as applicable,
reasonable and invoiced internal audit, appraisal and valuation costs and
expenses and all reasonable and invoiced out-of-pocket costs and expenses of
every type and nature (including the reasonable fees, expenses and
disbursements of the Agents’ and Arranger’s counsel, Weil, Gotshal
& Xxxxxx LLP (or any other primary counsel selected by such Agent or
Arranger), local legal counsel, auditors, accountants, appraisers, printers,
insurance and environmental advisors, and other consultants and agents)
incurred by such Agent and Arranger, as applicable, in connection with any of
the following: (i) the syndication of the Term Loan Facility, (ii) the
Administrative Agent’s audit and investigation of the Company and its
Subsidiaries in connection with the preparation, negotiation or execution of
any Loan Document or the Administrative Agent’s periodic audits of the
Company or any of its Subsidiaries, as the case may be, (iii) the preparation,
negotiation, execution or interpretation of this Agreement (including, without
limitation, the satisfaction or attempted satisfaction of any condition set
forth in Article IX), any Loan Document or any proposal letter or
commitment letter issued in connection therewith, or the making of the Loans
hereunder, (iv) the creation, perfection or protection of the Liens under any
Loan Document (including any reasonable fees, disbursements and expenses for
local counsel in various jurisdictions as contemplated by the Agreement), (v)
the ongoing administration of this Agreement and the Loans, including
consultation with attorneys in connection therewith and with respect to each
Agent’s rights and responsibilities hereunder and under the other Loan
Documents, (vi) the protection, collection or enforcement of any Payment
Obligation or the enforcement of any Loan Document, (vii) the commencement,
defense or intervention in any court proceeding relating in any way to the
Payment Obligations, any Loan Party, any of the Company’s Subsidiaries,
this Agreement or any other Loan Document, (viii) the response to, and
preparation for, any subpoena or request for document production with which
such Agent is served or deposition or other proceeding in which such Agent is
called to testify, in each case, relating in any way to the Payment
Obligations, any Loan Party, any of the Company’s Subsidiaries, this
Agreement or any other Loan Document or (ix) any amendment, consent, waiver,
assignment, restatement, or supplement to any Loan Document or the preparation,
negotiation and execution of the same.
(b) The Company
further agrees to, and to cause each other Loan Party to, pay or reimburse each
of the Agents and each of the Lenders upon demand for all out-of-pocket costs
and expenses, including reasonable and invoiced attorneys’ fees (including
costs of counsel and costs of settlement), incurred by such Agents or such
Lenders in connection with any of the following: (i) in enforcing any Loan
Document or Payment Obligation or any security therefor or exercising or
enforcing any other right or remedy available by reason of an Event of Default,
(ii) in connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a “work-out”
or in any insolvency or bankruptcy proceeding, (iii) in commencing, defending
or intervening in any litigation or in filing a petition, complaint, answer,
motion or other pleadings in any legal proceeding relating to the Payment
Obligations, any Loan Party, any of the Company’s Subsidiaries and related
to or arising out of the transactions contemplated hereby or by any other Loan
Document or (iv) in taking any other action in or with respect to any suit or
proceeding (bankruptcy or otherwise) described in clause (i), (ii)
or (iii) above.
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(c) Any obligation
of the Company or any other Loan Party pursuant to this Section 14.5
shall survive Full Satisfaction of the Payment Obligations.
Section 14.6
Assignments and Participations; Binding Effect. (a) Each Lender may sell, transfer, negotiate or
assign to one or more Eligible Assignees all or a portion of its rights and
obligations hereunder (including all of its rights and obligations with respect
to the Term Loans); provided,
however, that (i) the aggregate amount being assigned pursuant
to each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event (if less than the
assignor’s entire interest) be less than $1,000,000 or an integral
multiple of $1,000,000 in excess thereof, except (A) with the consent of the
Company and the Administrative Agent or (B) if such assignment is being made to
a Lender or an Affiliate or Related Fund of such Lender and (iii) if such
Eligible Assignee is not, prior to the date of such assignment, a Lender or an
Affiliate or Related Fund of a Lender, such assignment shall be subject to the
prior consent of the Administrative Agent and the Company (which consents shall
not be unreasonably withheld or delayed); and provided,
further, that, notwithstanding any other provision of
this Section 14.6, the consent of the Company shall not be required (x)
for any assignment occurring when any Event of Default shall have occurred and
be continuing and (y) for any assignment by the Administrative Agent or any
Affiliate or Related Fund of the Administrative Agent of the Term Loan
Commitment or Loans held on the Closing Date by the Administrative Agent or any
such Affiliate or Related Fund if such assignment is made as part of the
primary syndication of the Facility.
(b) The parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording, an Assignment and Acceptance, together with any
Note (if the assigning Lender’s Loans are evidenced by a Note) subject to
such assignment. Upon the execution, delivery, acceptance and recording of any
Assignment and Acceptance and, other than in respect of assignments made
pursuant to Section
14.1(c), the receipt by the
Administrative Agent from the assignee of an assignment fee in the amount of
$3,500, from and after the effective date specified in such Assignment and
Acceptance, (i) the assignee thereunder shall become a party hereto and, to the
extent that rights and obligations under the Loan Documents have been assigned
to such assignee pursuant to such Assignment and Acceptance, have the rights
and obligations (including without limitation the obligations under
Section 7.12(c)) of a Lender hereunder; provided, however, that no Transferee (including an assignee that is
already a Lender hereunder at the time of the assignment) shall be entitled to
receive any greater amount pursuant to
Section 7.12 than that to which the
assignor Lender would have been entitled to receive had no such assignment
occurred, (ii) the Notes (if any) corresponding to the Loans assigned thereby
shall be transferred to such assignee by notification in the Register and (iii)
the assignor thereunder shall, to the extent that rights and obligations under
this Agreement have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (except for those surviving the payment in
full of the Payment Obligations) and be released from its obligations under the
Loan Documents, other than those relating to events or circumstances occurring
prior to such assignment (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender’s rights and
obligations under the Loan Documents, such Lender shall cease to be a party
hereto). Solely for purposes of calculating the assignment fee under this
Section 14.6(b), multiple assignments on the same date by a Lender to
its Affiliates or Related Funds shall constitute one assignment.
(c) The
Administrative Agent shall maintain at its address referred to
in Section 14.2 a copy of each Assignment and Acceptance delivered to
and accepted by it and a register for the recording of the names and addresses
of the Lenders and the applicable Term Loan Commitments of and principal amount
of and interest with respect to the Term Loans owing
98
to each applicable Lender from time to time
(each, a “Register”). Any assignment pursuant to this Section 14.6
shall not be effective until such assignment is recorded in such Register. The
entries in each Register shall be conclusive and binding for all purposes,
absent manifest error, and the Loan Parties, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in such Register as a
Lender for all purposes of this Agreement. All information contained in each
Register as to any Lender shall be available for inspection by the Company, the
Administrative Agent or such Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Notwithstanding
anything to the contrary contained herein, the Term Loans (including the Notes
evidencing such Loans) are registered obligations and the right, title, and
interest of the Lenders and their assignees in and to such Term Loans shall be
transferable only upon notation of such transfer in the applicable Register. A
Note shall only evidence the Lender’s or an assignee’s right, title
and interest in and to the related Loan, and in no event is any such Note to be
considered a bearer instrument or obligation. This Section 14.6
shall be construed so that the Term Loans are at all times maintained in
“registered form” within the meaning of Sections 163(f), 871(h)(2)
and 881(c)(2) of the Internal Revenue Code and any related regulations (or any
successor provisions of the Internal Revenue Code or such regulations). Solely
for purposes of this and for tax purposes only, the Administrative Agent shall
act as the Company’s agent for purposes of maintaining such notations of
transfer in each Register.
(e) Upon its receipt
of an Assignment and Acceptance executed by an assigning Lender and an
assignee, the Administrative Agent shall, if such Assignment and Acceptance has
been completed, (i) accept such Assignment and Acceptance, (ii) record or cause
to be recorded the information contained therein in the applicable Register and
(iii) give prompt notice thereof to the Company. Within five Business Days
after its receipt of such notice, the Company, at its own expense, shall, if
requested by such assignee, execute and deliver to the Administrative Agent,
new Notes to the order of such assignee in an amount equal to the Loans and
Term Loan Commitment assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Lender has surrendered any Note for exchange in
connection with the assignment and has retained Loans or Term Loan Commitment
hereunder, new Notes to the order of the assigning Lender in an amount equal to
the Loans or Term Loan Commitment retained by it hereunder. Such new Notes
shall be dated the same date as the surrendered Notes.
(f) In addition to
the other assignment rights provided in this Section 14.6,
each Lender may do each of the following:
(i) grant to a
Special Purpose Vehicle the option to make all or any part of any Loan that
such Lender would otherwise be required to make hereunder and the exercise of
such option by any such Special Purpose Vehicle and the making of Loans
pursuant thereto shall satisfy (once and to the extent that such Loans are
made) the obligation of such Lender to make such Loans thereunder,
provided, however, that
(x) nothing herein shall constitute a commitment or an offer to commit by such
a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose
Vehicle shall be liable for any indemnity or other Payment Obligation (other
than the making of Loans for which such Special Purpose Vehicle shall have
exercised an option, and then only in accordance with the relevant option
agreement) and (y) such Lender’s obligations under the Loan Documents
shall remain unchanged, such Lender shall remain responsible to the other
parties for the performance of its obligations under the terms of this
Agreement and shall remain the holder of the Payment Obligations for all
purposes hereunder; and
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(ii) assign, as
collateral or otherwise, any of its rights under this Agreement, whether now
owned or hereafter acquired (including rights to payments of principal or
interest on the Loans), to (A) without notice to or consent of the
Administrative Agent or the Company, any Federal Reserve Bank (pursuant to
Regulation A of the Federal Reserve Board) and (B) without consent of the
Administrative Agent or the Company, (1) any holder of, or trustee for the
benefit of, the holders of such Lender’s securities and (2) any Special
Purpose Vehicle to which such Lender has granted an option pursuant to
clause (i) above;
provided, however, that no
such assignment or grant shall release such Lender from any of its obligations
hereunder except as expressly provided in clause (i) above
and except, in the case of a subsequent foreclosure pursuant to an assignment
as collateral, if such foreclosure is made in compliance with the other
provisions of this Section
14.6 other than this clause (f) or
clause (g) below. Each party hereto acknowledges and agrees that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior debt of any such Special Purpose
Vehicle, such party shall not institute against, or join any other Person in
instituting against, any Special Purpose Vehicle that has been granted an
option pursuant to this clause (f)
any bankruptcy, reorganization,
insolvency or liquidation proceeding (such agreement shall survive the payment
in full of the Payment Obligations). The terms of the designation of, or
assignment to, such Special Purpose Vehicle shall not restrict such
Lender’s ability to, or grant such Special Purpose Vehicle the right to,
consent to any amendment or waiver to this Agreement or any other Loan Document
or to the departure by the Company from any provision of this Agreement or any
other Loan Document without the consent of such Special Purpose Vehicle except,
as long as the Administrative Agent and the Lenders, and other Secured Parties
shall continue to, and shall be entitled to continue to, deal solely and
directly with such Lender in connection with such Lender’s obligations
under this Agreement, to the extent any such consent would reduce the principal
amount of, or the rate of interest on, any Payment Obligations, amend this
clause (f) or postpone any scheduled date of payment of such
principal or interest. Each Special Purpose Vehicle shall be entitled to the
benefits of Section 7.9(d),
7.10 and 7.12 as if it
were such Lender; provided,
however, that anything herein to the contrary notwithstanding,
the Company shall not, at any time, be obligated to make under Section 7.9(d),
7.10 and 7.12 to any such
Special Purpose Vehicle and any such Lender any payment in excess of the amount
the Company would have been obligated to pay to such Lender in respect of such
interest if such Special Purpose Vehicle had not been assigned the rights of
such Lender hereunder; provided,
further, that any such Special Purpose Vehicle shall have
complied with the requirements of Section 7.12.
(g) Each Lender may
sell participations to one or more Persons in or to all or a portion of its
rights and obligations under the Loan Documents (including all its rights and
obligations with respect to Term Loans). The terms of such participation shall
not, in any event, require the participant’s consent to any amendments,
waivers or other modifications of any provision of any Loan Documents, the
consent to any departure by any Loan Party therefrom, or to the exercising or
refraining from exercising any powers or rights such Lender may have under or
in respect of the Loan Documents (including the right to enforce the
obligations of the Loan Parties), except if any such amendment, waiver or other
modification or consent would (i) reduce the amount, or postpone any date fixed
for the payment of principal, interest or fees payable to such participant
under the Loan Documents, to which such participant would otherwise be entitled
under such participation or (ii) result in the release of all or substantially
all of the Collateral other than in accordance with Section 9 of
the Intercreditor Agreement. In the event of the sale of any participation by
any Lender, (w) such Lender’s obligations under the Loan Documents shall
remain unchanged, (x) such Lender shall remain solely responsible to the other
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parties for the performance of such
obligations, (y) such Lender shall remain the holder of such Payment
Obligations for all purposes of this Agreement and (z) the Company, the Agents
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement. Each participant shall be entitled to the benefits of
Section 7.9(d), 7.10 and 7.12 as if it
were a Lender; provided, however, that
notwithstanding anything herein to the contrary, the Company shall not, at any
time, be obligated to make any payment under Section 7.9(d), 7.10 and
7.12 to the participants in the rights
and obligations of any Lender (together with such Lender) in excess of the
amount the Company would have been obligated to pay to such Lender in respect
of such interest had such participation not been sold; provided,
further, that any such participant shall have complied with the
requirements of Section
7.12.
(h) This Agreement
shall become effective when it shall have been executed by the Company, the
Administrative Agent and the Collateral Agent and when the Administrative Agent
shall have been notified by each Lender that such Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Company, the
Administrative Agent, the Collateral Agent and each Lender and, in each case,
their respective successors and assigns; provided,
however, that the Company shall not have the right to assign
its rights hereunder or any interest herein without the prior written consent
of the Lenders.
Section 14.7
Adjustments; Set-off. (a) Unless an Event of Default has occurred and is
continuing, if any Lender (a “benefitted Lender”) shall at any time receive any payment of all or
part of any of its Loans owing to it, or interest thereon, pursuant to a
guarantee or otherwise, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off or otherwise), in a greater proportion
than any such payment to and collateral received by any other Lender, if any,
in respect of such other Lender’s Loans owing to it or interest thereon,
such benefitted Lender shall purchase for cash from the other Lenders such
portion of each such other Lender’s similar Loans, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders which hold such Term Loans; provided,
however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Company agrees that each Lender so
purchasing a portion of another Lender’s Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such purchasing Lender were the direct holder of such
portion. After the delivery of a Notice of Actionable Default and prior to the
withdrawal of all Notices of Actionable Default then pending, all payments or
Collateral (or proceeds thereof) received by any Agent or Lender in
contravention of this Agreement, the Intercreditor Agreement or any other Loan
Document, shall be segregated and held in trust and forthwith paid over to the
Collateral Agent to be applied pursuant to Section 7.15(e).
(b) Subject to the
Intercreditor Agreement, in addition to any rights and remedies of the Lenders
provided by law, upon both the occurrence of an Event of Default and
acceleration of the Payment Obligations owing in connection with this
Agreement, each Lender and each of its Affiliates shall have the right, without
prior notice to the Company, any such notice being expressly waived to the
extent permitted by applicable law, to set off and apply against any
indebtedness, whether matured or unmatured, of the Company to such or any other
Lender or such Affiliate any amount owing from such Lender or such Affiliate to
the Company at, or at any time after, the happening of both of the above
mentioned events, and such right of set-off may be exercised by such Lender or
such Affiliate against the Company or against any
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trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver, custodian or execution,
judgment or attachment creditor of the Company, or against anyone else claiming
through or against the Company or such trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receivers, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender or such Affiliate prior to
the making, filing or issuance, or service upon such Lender or such Affiliate
of, or of notice of, any such petition, assignment for the benefit of
creditors, appointment or application for the appointment of a receiver, or
issuance of execution, subpoena, order or warrant. Each Lender agrees promptly
to notify the Company and the Administrative Agent after any such set-off and
application made by such Lender or any of its Affiliates; provided,
however, that the failure to give such notice shall not affect
the validity of such set-off and application.
Section 14.8 [Intentionally Omitted.]
Section 14.9 [Intentionally Omitted.]
Section 14.10
Intercreditor Agreement. Each Lender hereby acknowledges that it has fully
reviewed the Intercreditor Agreement and, by its execution of this Agreement,
hereby consents to the execution and delivery of the Intercreditor Agreement by
the Administrative Agent and the Collateral Agent (in their respective
capacities as Agents hereunder, as agents under the Existing Credit Agreement,
and as agent for the holders of the Designated Eligible Obligations) and agrees
to comply with the terms thereof (which terms are incorporated herein by
reference in their entirety) as if such Lender were a direct signatory
thereto.
Section 14.11
Severability; Conflicts. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In the event of any
conflict between the terms of this Agreement and any other Loan Document
(except for the Intercreditor Agreement), the terms of this Agreement shall
govern. In the event of any conflict between the terms of the Intercreditor
Agreement and this Agreement or any other Loan Document, the Intercreditor
Agreement shall govern.
Section 14.12
Counterparts; Confidentiality.
(a) This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts and all of such counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page of this Agreement by facsimile
transmission or by posting on the Approved Electronic Platform shall be as
effective as delivery of a manually executed counterpart hereof. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Company and the Administrative Agent.
(b) Each Lender
agrees that it will not disclose Confidential Information (as defined below) to
any Person other than (i) as may be consented to by the Company, (ii) as may be
required by law or pursuant to legal process and (iii) to prospective
participants and Transferees and those of such Lender’s directors,
officers, employees, examiners and professional advisors who have a need to
know the Confidential Information in accordance with customary banking
practices and who receive the Confidential Information having been made aware
of the restrictions of this Section
14.12(b). As used herein, the term
“Confidential
Information” means all information
contained in materials relating to the Company and its Subsidiaries provided to
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the Lenders by the Company or its
representatives or agents other than (x) information which is at the time so
provided or thereafter becomes generally available to the public other than as
a result of a disclosure by one or more Lenders, (y) information which was
available to any Lender prior to its disclosure to the Lenders by the Company,
its representatives or agents and (z) information which becomes available to
one or more Lenders from a source other than the Company, its representatives
or agents.
Section 14.13
Submission To Jurisdiction; Waivers. (a) [Intentionally Omitted.]
(b) The Company
hereby irrevocably and unconditionally:
(i) submits for
itself and its property in any legal action or proceeding relating to this
Agreement or any other Loan Document to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the courts of the
United States for the Southern District of New York, and appellate courts from
any thereof;
(ii) consents that
any such action or proceeding may be brought in such courts and waives trial by
jury and any objection that it may now or hereafter have to the venue of any
such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the
same;
(iii) agrees that
service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to it at its address set forth in
Section 14.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto; and
(iv) agrees that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law or shall limit the right to xxx in any other
jurisdiction.
(c) The Company,
each Agent and each Lender hereby irrevocably and unconditionally waives trial
by jury in any legal action or proceeding referred to in clause (a)
above.
Section 14.14
Acknowledgements. The Company hereby acknowledges that:
(a) it has been
advised by counsel in the negotiation, execution and delivery of this Agreement
and the other Loan Documents;
(b) none of any
Agent, the Arranger or any Lender has any fiduciary relationship with or duty
to the Company arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between each such Agent,
Arranger and Lenders, on one hand, and the Company, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
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(c) no joint venture
is created hereby or by the other Loan Documents or otherwise exists by virtue
of the transactions contemplated hereby among the Lenders or among the Company
and the Lenders.
Section 14.15
USA PATRIOT Act. Each Lender hereby notifies the Company that pursuant
to the requirements of the Act, it is required to obtain, verify and record
information that identifies the Company, which information includes the name
and address of the Company and other information that will allow such Lender to
identify the Company in accordance with the Act.
Section 14.16
Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
Section 14.17
Indemnities. (a) The Company agrees to, and shall cause each other
Loan Party to, indemnify and hold harmless each Agent, the Arranger, each
Lender and each of their respective Affiliates, and each of the directors,
officers, employees, agents, trustees, representatives, attorneys, consultants
and advisors of or to any of the foregoing (including those retained in
connection with the satisfaction or attempted satisfaction of any condition set
forth in Article IX)
(each such Person being an “Indemnitee”) from and against any and all claims, damages,
liabilities, obligations, losses, penalties, actions, judgments, suits, costs,
disbursements and expenses, joint or several, of any kind or nature (including
reasonable fees, disbursements and expenses of financial and legal advisors to
any such Indemnitee) that may be imposed on, incurred by or asserted against
any such Indemnitee in connection with or arising out of any investigation,
litigation or proceeding, whether or not such investigation, litigation or
proceeding is brought by any such Indemnitee or any of its directors, security
holders or creditors or any such Indemnitee, director, security holder or
creditor is a party thereto, whether direct, indirect, or consequential and
whether based on any federal, state or local law or other statutory regulation,
securities or commercial law or regulation, or under common law or in equity,
or on contract, tort or otherwise, in any manner relating to or arising out of
this Agreement, any other Loan Document, any Payment Obligation, or any act,
event or transaction related or attendant to any thereof, or the use or
intended use of the proceeds of the Loans or in connection with any
investigation of any potential matter covered hereby (collectively, the
“Indemnified
Matters”); provided,
however, that the Company shall not have any liability under
this Section 14.17 to
an Indemnitee with respect to any Indemnified Matter to the extent such
liability has resulted from the gross negligence or willful misconduct of that
Indemnitee, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order; provided,
further, that the Company shall not be required to reimburse
the Indemnitees for the fees and expenses of more than one joint counsel for
the Administrative Agent and the Collateral Agent and one joint counsel for the
other Indemnitees unless such representation shall result in a conflict of
interest among the Indemnitees. Without limiting the foregoing,
“Indemnified
Matters” include (i) all
Environmental Liabilities and Costs arising from or connected with the past,
present or future operations of the Company or any of its Subsidiaries
involving any property subject to a Security Document, or damage to real or
personal property or natural resources or harm or injury alleged to have
resulted from any Release of Hazardous Materials on, upon or into such property
or any contiguous real estate, (ii) any costs or liabilities incurred in
connection with any Remedial Action concerning the Company or any of its
Subsidiaries, (iii) any costs or liabilities incurred in connection with any
Lien in favor of any Governmental Authority for Environmental Liabilities and
Costs and (iv) any costs or liabilities incurred in connection with any other
matter under any Environmental Law, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et
seq.) and applicable state property transfer laws, whether, with respect to any
such matter, such Indemnitee is a mortgagee pursuant to any
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leasehold mortgage, a mortgagee in
possession, the successor in interest to the Company or any of its
Subsidiaries, or the owner, lessee or operator of any property of the Company
or any of its Subsidiaries by virtue of foreclosure, except, with respect to
those matters referred to in clauses
(i), (ii),
(iii) and (iv) above, to
the extent (x) incurred following foreclosure by the Collateral Agent, at the
direction of the Administrative Agent, any Lender, or any Agent or any Lender
having become the successor in interest to the Company or any of its
Subsidiaries and (y) to the extent attributable to acts of the Agents, such
Lender or any agent on behalf of such Agent or such Lender.
(b) The Company
shall, and shall cause each other Loan Party to, indemnify the Agents and the
Lenders for, and hold the Agents and the Lenders harmless from and against, any
and all claims for brokerage commissions, fees and other compensation made
against the Agents and the Lenders for any broker, finder or consultant with
respect to any agreement, arrangement or understanding made by or on behalf of
any Loan Party or any of its Subsidiaries in connection with the transactions
contemplated by this Agreement.
(c) The Company, at
the request of any Indemnitee, shall have the obligation to defend against any
investigation, litigation or proceeding or requested Remedial Action, in each
case contemplated in clause
(a) above, and the
Company, in any event, may participate in the defense thereof with legal
counsel of the Company’s choice. In the event that such Indemnitee
requests the Company to defend against such investigation, litigation or
proceeding or requested Remedial Action, the Company shall promptly do so and
lead such defense, and such Indemnitee shall have the right to have legal
counsel of its choice participate in such defense; provided,
however, that the fees and expenses of such counsel shall be
reasonable for a secondary counsel; provided,
further, that the Company shall not be required to reimburse
the Indemnitees for the fees and expenses of more than one joint counsel for
the Administrative Agent and the Collateral Agent and one joint counsel for the
other Indemnitees unless such representation shall result in a conflict of
interest among the Indemnitees. No action taken by legal counsel chosen by such
Indemnitee in defending against any such investigation, litigation or
proceeding or requested Remedial Action, shall vitiate or in any way impair the
Company’s obligation and duty hereunder to indemnify and hold harmless
such Indemnitee.
(d) The Company
agrees that any indemnification or other protection provided to any Indemnitee
pursuant to this Agreement (including pursuant to this Section 14.17)
or any other Loan Document shall (i) survive Full Satisfaction of the Payment
Obligations and (ii) inure to the benefit of any Person that was at any time an
Indemnitee under this Agreement or any other Loan Document.
Section 14.18
Limitation of Liability. (a) The Company agrees that no Indemnitee shall have
any liability (whether in contract, tort or otherwise) to any Loan Party or any
of their respective Subsidiaries or any of their respective equity holders or
creditors for or in connection with the transactions contemplated hereby and in
the other Loan Documents, except to the extent such liability is determined in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted primarily from such Indemnitee’s gross negligence or willful
misconduct. In no event, however, shall any Indemnitee be liable on any theory
of liability for any special, indirect, consequential or punitive damages
(including, without limitation, any loss of profits, business or anticipated
savings). The Company hereby waives, releases and agrees (each for itself and
on behalf of Revlon and the Company’s Subsidiaries) not to xxx upon any
such claim for any special, indirect, consequential or punitive damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
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(b) IN NO EVENT
SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY TO ANY LOAN PARTY, LENDER OR ANY
OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT OR
CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY OR ANY AGENT
AFFILIATE’S TRANSMISSION OF APPROVED ELECTRONIC COMMUNICATIONS THROUGH THE
INTERNET OR ANY USE OF THE APPROVED ELECTRONIC PLATFORM, EXCEPT TO THE EXTENT
SUCH LIABILITY OF ANY AGENT AFFILIATE IS FOUND IN A FINAL NON-APPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FORM
SUCH AGENT AFFILIATE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
[SIGNATURE
PAGES FOLLOW]
106
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
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REVLON CONSUMER PRODUCTS
CORPORATION
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By:
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/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Executive Vice President,
Chief Legal Officer and General Counsel
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[SIGNATURE PAGE TO TERM LOAN
AGREEMENT]
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CITICORP USA, INC., as
Administrative Agent, Collateral Agent
and Lender
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By:
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/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Vice President
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[SIGNATURE PAGE TO TERM LOAN
AGREEMENT]