Exhibit 10.1
CONSENT AND AMENDMENT
CONSENT AND AMENDMENT, dated as of September 3, 1997, among RCI China,
Inc., a Delaware corporation and wholly-owned subsidiary of Renaissance
Cosmetics, Inc., Xxxx Perfumes Corp. ("BORROWER"), the other Credit Parties
to the Credit Agreement referred to below, General Electric Capital
Corporation, for itself, as lender, and as Agent for Lenders, and the other
Lenders party to the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Borrower, Credit Parties, Agent and Lenders are parties to that
certain Credit Agreement dated as of March 12, 1997 (as from time to time
amended, restated, supplemented or otherwise modified, the "CREDIT
AGREEMENT", and unless the context otherwise requires or unless otherwise
defined herein, capitalized terms used herein shall have the meanings
assigned to them in the Credit Agreement); and
WHEREAS, Borrower (for and on behalf of itself and the other Credit
Parties), Agent and Lenders are parties to that certain letter agreement,
dated June 27, 1997, as amended on July 25, 1997 and August 20, 1997; and
WHEREAS, Borrower has requested that Agent and Lenders consent to certain
transactions that have heretofore occurred and to amend the Loan Documents to
add RCI China, Inc. as a Credit party as hereinafter set forth;
WHEREAS, Agent and Lenders have agreed to consent to such transactions
and to amend the Loan Documents to add RCI China, Inc. as a Credit Party as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
SECTION 1. CONSENTS.
(a) MERGERS OF INACTIVE SUBSIDIARIES. Effective as of the
Effective Date (as defined herein) and notwithstanding Section 6.1 of the
Credit Agreement, Agent and Lenders hereby consent to the following completed
transactions:
(1) the merger of Rosemint Cosmetics, Inc. (an inactive
Subsidiary) with and into MEM Company, Inc. ("MEM")
(a Credit Party), with MEM as the surviving corporation.
(2) the merger of MEM International, Inc. (an inactive
Subsidiary) with and into MEM, with MEM as the surviving
corporation.
(3) the merger of Xxxxxx of Milano, Ltd. (an inactive Subsidiary)
with and into MEM, with MEM as the surviving corporation.
(4) the merger of St. Xxxxxx Holdings, Inc. (an inactive
Subsidiary) with and into MEM, with MEM as the surviving
corporation.
(b) TRANSFER OF UK ASSETS. Effective as of the Effective Date
and notwithstanding Sections 6.2, 6.4(a) and 6.8 of the Credit Agreement,
Agent and Lenders hereby consent to the following completed transactions:
(1) the contribution by Borrower of all of the United Kingdom
inventory and molds acquired by Borrower from Xxxxxxx &
Xxxxxx and in existence on and as of December 31, 1996 (the
"UK Assets"), which were valued at approximately $4.4 million,
to the capital of Xxxx U.K. Limited, a wholly-owned subsidiary
of Borrower ("Xxxx UK") (the "UK Assets Transfer").
(2) the delivery by Xxxx UK of its own promissory note in the
principal amount of $1 million to Borrower as partial payment
for the UK Assets (the "Xxxx UK Note").
(c) CHINA JOINT VENTURE. Effective as of the Effective Date
and notwithstanding Sections 6.1(a) and 6.2 of the Credit Agreement, Agent
and Lenders hereby consent to the following completed transactions:
(1) the formation of RCI China, Inc., a Delaware corporation and
newly-formed, wholly-owned subsidiary of Parent ("RCI China").
(2) the contribution by (i) Parent to RCI China, of $1,093,000 in
cash and (ii) Borrower, Cosmar Corporation, MEM, English
Leather, Inc. and Great American Cosmetics, Inc. of the non-
exclusive right to use the brands and products listed on
SCHEDULE 1 hereto.
SECTION 2. AMENDMENTS. Effective as of the Effective Date, (i) the
Credit Agreement is hereby amended to add RCI China as a Credit Party, (ii)
the Security Agreement is hereby amended to add RCI China as a Grantor, (iii)
the Guaranty is hereby amended to add RCI China as a Guarantor, and (iv) the
Pledge Agreement is hereby amended to add RCI China as a Pledgor, in each
case, as though RCI China had been an original signatory thereto.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES AND RCI
CHINA. The Credit Parties and RCI China represent and warrant to Agent and
each Lender as follows:
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(a) The execution, delivery and performance by each Credit Party
and RCI China of this Consent and Amendment (and each of the financing
statements and other documents to be executed by such Person pursuant hereto)
and the creation of all Liens provided for herein: (1) are within such
Person's corporate power; (2) have been duly authorized by all necessary or
proper corporate and shareholder action; (3) do not contravene any provision
of such Person's charter or bylaws; (4) do not violate any law or regulation,
or any order or decree of any Governmental Authority; (5) do not conflict
with or result in the breach or termination of, constitute a default under or
accelerate or permit the acceleration of any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which such Person is a party or by which such Person or any of its property
is bound; (6) do not result in the creation or imposition of any Lien upon
any of the property of such Person other than those in favor of Agent, on
behalf of itself and Lenders, pursuant to the Loan Documents; and (7) do not
require the consent or approval of any Governmental Authority or any other
Person.
(b) This Consent and Amendment and the financing statements and
other documents to be executed and delivered by the Credit Parties and RCI
China have been duly executed and delivered by each Credit Party and RCI
China and constitute legal, valid and binding obligations of such Credit
Party and RCI China enforceable against it in accordance with their terms.
(c) After giving effect to the consents and amendments contained in
this Consent and Amendment, each of the representations and warranties of the
Credit Parties (including RCI China) contained in the Credit Agreement and
each of the other Loan Documents shall be true and correct on and as of the
Effective Date as if made on such date, except to the extent any such
representation or warranty expressly relates to an earlier date and except
for changes therein expressly permitted or expressly contemplated by such
agreements.
(d) After giving effect to the consents and amendments contained in
this Consent and Amendment, no Default or Event of Default shall be
continuing.
(e) Upon the Effective Date, RCI China shall be a Credit Party,
Grantor, Guarantor and Pledgor under the Credit Agreement, Security
Agreement, Guaranty and Pledge Agreement, respectively.
SECTION 4. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS CONSENT AND
AMENDMENT. This Consent and Amendment shall become effective as of the first
date on which each of the following conditions shall have been satisfied or
provided for in a manner satisfactory to Agent, or waived by Agent and
Requisite Lenders (such date is referred to herein as the "Effective Date"):
(a) Agent shall have executed this Consent and Amendment.
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(b) Agent shall have received, in form and substance satisfactory
to Agent, this Consent and Amendment, duly executed and delivered by RCI
China, Borrower, the other Credit Parties and Requisite Lenders.
(c) Agent shall have received, in form and substance satisfactory
to Agent, financing statements on Form UCC-1 in proper form for filing, duly
executed and delivered by RCI China.
(d) Agent shall have received, in form and substance satisfactory
to Agent, a Pledge Amendment, duly executed and delivered by Borrower,
pledging the Xxxx UK Note, along with the original Xxxx UK Note and a duly
executed instrument of transfer in blank in form and substance satisfactory
to Agent.
SECTION 5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) On and after the Effective Date, each reference in the Loan
Documents to "this Agreement", "herein", "hereof", "hereunder" or words of
similar import, shall mean and be a reference to such Loan Document as
amended hereby and after giving effect to the consents provided herein.
(b) Except as specifically amended above, the Credit Agreement, the
Notes and all other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Consent and
Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of Lenders under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 6. FEES AND EXPENSES. Borrower agrees to reimburse Agent for
all reasonable out-of-pocket fees, costs and expenses, including the
reasonable fees, costs and expenses of counsel or other advisors in
connection with the preparation, execution and delivery of this Consent and
Amendment.
SECTION 7. GOVERNING LAW. THIS CONSENT AND AMENDMENT AND THE
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
SECTION 8. SECTION TITLES. Section titles contained in this Consent and
Amendment are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
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SECTION 9. COUNTERPARTS. This Consent and Amendment may be executed in
any number of separate counterparts, each of which shall collectively and
separately constitute one agreement.
IN WITNESS WHEREOF, this Consent and Amendment has been duly executed as
of the date first written above.
RCI CHINA, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: VP
XXXX PERFUMES CORP.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: VP
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ Xxxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Duly Authorized Signatory
NATIONAL CITY COMMERCIAL FINANCE,
INC., as Lender
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
PNC BANK, N.A., as Lender
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: VP
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Other Credit Parties:
RENAISSANCE COSMETICS, INC.
COSMAR CORPORATION
GREAT AMERICAN COSMETICS, INC.
HOUBIGANT (1995) LIMITED
MEM COMPANY, INC.
TINKERBELL, INC. (F/K/A XXXXXX XXXXXX, INC.)
MEM COMPANY (CANADA) LIMITED
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: VP
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SCHEDULE 1
Chantilly Insignia
White Chantilly California for Men
Xxxx le Jardin
DREAMS BY XXXX XxXxxx
Lutece PRO10
Raffinee Press & Go
Demi-Jour Petite Press & Go
Monsieur Musk Sport Press & Go
French Garden Flowers Quik Fit
English Waterlilys Sculpture Quik
French Vanilla by Xxxx Sculpture Quik II
Ambush UltraGel
Canoe Nail Fetish
Canoe-Sport Wrap Quik
Herbissimo Quikfile
Navigator Quikshine
English Leather Filepro
British Sterling Xxx Xxxxxxx
Love's Lip Lacquer
Heaven Sent Ever Sheer
NaVy Color Intense 24
Toujours Moi
NaVy for Men
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