AMENDMENT No. 3, dated as of September 25, 1998 (this "Amendment"), to
the Loan and Security Agreement, dated as of April 25, 1997 (as heretofore or
hereafter amended, supplemented and otherwise modified, the "Agreement"), among
The Cosmetic Center, Inc. (the "Borrower"), the financial institutions listed
therein and BankAmerica Business Credit, Inc., as Agent.
WITNESSETH:
WHEREAS, the Borrower and the Lenders are parties to the Agreement;
WHEREAS, the Borrower has requested that the Lenders modify certain
provisions of the Agreement and the Lenders are willing to do so on the terms
and conditions as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein have the respective meanings ascribed thereto in the Agreement.
2. Amendment to the Agreement. The Agreement is hereby amended as follows:
(a) Section 1.1 of the Agreement is amended by deleting the
definition "Adjusted Tangible Net Worth" and inserting the
following new definition between the definitions "Fiscal
Year" and "Funding Date":
"Fixed Maturity Ratio" means, for any period, the ratio of
(a) EBITDA during such period plus any increase in the
principal amount of the Revlon Note and/or Additional Revlon
Note during such period, less any decrease in the principal
amount of the Revlon Note and/or Additional Revlon Note
during such period to (b) the sum of the following during
such period (i) total interest expense, (ii) Capital
Expenditures, (iii) cash payments made against second fiscal
quarter of 1998 restructuring charges and any restructuring
charges subsequent to the second fiscal quarter or 1998, and
(iv) principal payments made on long-term debt other than the
Revlon Note and the Additional Revlon Note.
(b) Section 9.28 of the Agreement is deleted in its entirety and
replaced by the following new Section 9.28:
"9.28 Fixed maturity Ratio. Beginning with the third fiscal
quarter of 1998, the Borrower shall maintain a Fixed Maturity
Ratio for any Testing Period of not less than 1.1:1.
Compliance with the Fixed Maturity Ratio shall be determined
as of the last day of fiscal quarter. The "Testing Period"
for (i) the third fiscal quarter of 1998 shall be the third
fiscal quarter of 1998, (ii) the fourth fiscal quarter of
1998 shall be third and fourth fiscal quarters of 1998, (iii)
the first fiscal quarter of 1999 shall be the third and
fourth quarters of 1998 and the first fiscal quarter of 1999,
(iv) the second fiscal quarter of 1999 shall be the four
fiscal quarters ending on the last day of such second fiscal
quarter and (v) each fiscal quarter subsequent to the second
fiscal quarter of 1999, shall be the four fiscal quarters
ending on the last day of such fiscal quarter."
(c) Section 9.29 of the Agreement is deleted in its entirety and
replaced by the following:
"Section 9.29 [Intentionally Left Blank]"
(d) Section 7.2(e) of the Agreement is amended by changing clause
(i) thereof to read as follows: "setting forth in reasonable
detail (x) the Interest Coverage Ratio and (y) the
calculations required to establish that CCI was in compliance
with its covenant set forth in Section 9.28".
3. Representations and Warranties. To induce the Lenders to enter into
this Amendment, the Borrower hereby represents and warrants as follows, with
the same effect as if such representations and warranties were set forth in the
Agreement:
(i) the Borrower has the power and authority to enter into this
Amendment and has taken all corporate action required to
authorized the Borrower's execution, delivery and performance
of the Amendment. This Amendment has been duly executed and
delivered by the Borrower, and the Agreement, as amended
hereby, constitutes the valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with
its terms. The execution, delivery, and performance of this
Amendment and the Agreement, as amended hereby, by the
Borrower will not violate its certificate of incorporation or
by-laws or any or any material agreement or legal requirement
binding on the Borrower.
(ii) On the date hereof and after giving effect to the terms of
this Amendment, (A) the Agreement and the other Loan
Documents are in
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full force and effect and constitute binding obligations,
enforceable against the Borrower in accordance with their
respective terms, (B) no Default or Event of Default has
occurred and is continuing; and (C) the Borrower has no
defense to or setoff, counterclaim or claim against payment
of the Obligations and enforcement of the Loan Documents
based upon a fact or circumstance existing or occurring on or
prior to the date hereof.
4. Limited Effect. Except as expressly amended hereby, all of the
covenants, representations and warranties (including, without limitation, those
found in Section 9.1), and provisions of the Agreement are and shall continue
to be in full force and effect. Upon the effectiveness of this Amendment, each
reference in the Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import and each reference in the other Loan Documents to the
Agreement shall mean and be a reference to the Agreement as amended hereby.
5. Conditions of Effectiveness. This Amendment shall become effective as of
September 25, 1998 when and only when this Amendment shall be executed and
delivered by the Borrower, the Agent and the Lenders.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
7. Counterparts. This Amendment may be executed by the parties hereto in
any number of separate counterparts, each of which shall be an original, and all
of which taken together shall be deemed to constitute one and the same
instrument.
8. Amendment. No modification or waiver of any provision of this
Amendment, or any consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
"BORROWER"
The Cosmetic Center, Inc., as the Borrower
By /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President & Treasurer
"AGENT"
BankAmerica Business Credit, Inc., as the
Agent
By /s/ Xxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxxxxxx
Title: Vice President
"LENDERS"
BankAmerica Business Credit, Inc., as a
Lender
By Xxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxxxxxx
Title: Vice President
BankAmerica Business Credit, Inc., as a
Lender
By /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: VP
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