EXHIBIT 4.13
EXECUTION COPY
SECOND AMENDMENT
TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is
dated as of November 12, 1999 and entered into by and among PACIFIC FINANCE &
DEVELOPMENT CORP., a California corporation ("COMPANY"), and GENERAL ELECTRIC
CAPITAL CORPORATION, as assignee of The Long Term Credit Bank of Japan ("BANK")
and, for purposes of Section 5 hereof, the Credit Support Parties (as defined in
Section 5 hereof), and is made with reference to that certain Third Amended and
Restated Credit Agreement dated as of June 30, 1997, as amended by First
Amendment dated December 10, 1998 (the "CREDIT AGREEMENT"), by and between
Company and Bank. Capitalized terms used herein without definitions shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Bank desire to amend the Credit Agreement to
(i) amend certain prepayment provisions, (ii) amend the Final Maturity Date, and
(iii) make certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: PROVISIONS RELATING
TO DEFINED TERMS
A. Subsection 1.1 of the Credit Agreement is hereby amended by
replacing the definition of "FINAL MATURITY DATE" with the definition set forth
below, and adding thereto the following definition which shall be inserted in
proper alphabetical order:
"BASIC AGREEMENT" means the Basic Agreement to be entered among
Mortgagor, Mori Building Co., Ltd., Consumer Products and Revlon
Kabushiki Kaisha.
"FINAL MATURITY DATE" means the earlier of (i) the Professional
Products Disposition Date and (ii) December 31, 2000.
"PROFESSIONAL PRODUCTS DISPOSITION DATE" means the closing date
of the sale of the business (the "Professional Products
Business") conducted by Consumer Products and its Affiliates of
manufacturing, marketing and selling (i) professional salon hair
care products; (ii) ethnic hair care products; and (iii) retail
hair care and personal care products principally in Spain,
Portugal and Italy; provided, however, that if the closing date
of the
sale of the Professional Products Business conducted inside the
United States occurs on a different date than the closing date of
the sale of the Professional Products Business conducted outside
the United States, the Professional Products Disposition Date
shall be the later of the two closing dates.
1.2 AMENDMENTS TO SECTION 2: AMOUNT AND TERMS OF LOAN
A. Subsection 2.06(b) of the Credit Agreement is hereby amended
by deleting the text appearing therein and substituting therefor the following:
"The outstanding principal amount of the Loan and all accrued and
unpaid interest and all Bank Charges and other amounts due to the
Bank under this Agreement shall be due and payable on the Final
Maturity Date."
B. Subsection 2.06(d) of the Credit Agreement is hereby amended
by adding the following clause at the end of the first sentence thereof:
"provided further, that the disposition of the Roppongi Property
(as defined in the Basic Agreement) as contemplated by the Basic
Agreement shall be exempt from the prepayment provisions of this
Section 2.06(d) if the Swap Transaction is completed concurrently
therewith in accordance with Section 4 below (including, without
limitation, the substitution of the Xxxxxx Xxxxxx Land for the
Roppongi Property as provided in Section 4)."
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "SECOND
AMENDMENT EFFECTIVE DATE"):
A. On or before the Second Amendment Effective Date, Company
shall deliver to Bank the following, each, unless otherwise noted, dated the
Second Amendment Effective Date:
(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of
State of the State of California, each dated a recent date prior
to the Second Amendment Effective Date;
(ii) Copies of its Bylaws, certified by its corporate
secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this
Amendment, certified by its corporate secretary or an assistant
secretary as being in full force and effect without modification
or amendment;
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(iv) Signature and incumbency certificates of its officers
executing this Amendment;
(v) An opinion of Xxxxxx X. Xxxxxxxx, Senior Vice President,
Deputy General Counsel and Secretary of Consumer Products, in
form and substance reasonably satisfactory to the Bank and its
counsel; and
(vi) Executed copies of this Amendment executed by Company and
each Credit Support Party.
B. On or before the Second Amendment Effective Date, Company
shall have received the consent of the Required Lenders (as defined in the New
Consumer Products Credit Agreement) to this Amendment.
SECTION 3. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company represents and
warrants to Bank that the following statements are correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each Obligor has all requisite
corporate power and authority to enter into this Amendment, and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "AMENDED AGREEMENT") and each of the
other Operative Agreements, as applicable.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreement by Company have been
duly authorized by all necessary corporate action on the part of Company and the
execution and delivery of this Amendment have been duly authorized by all
necessary corporate action on the part of each of the other Obligors.
C. NO CONFLICT. The execution and delivery by each Obligor of
this Amendment and the performance by Company of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Obligor or any of their respective Subsidiaries,
the Certificate or Articles of Incorporation or Bylaws of any Obligor or any of
their respective Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on any Obligor or any of their respective
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any material contractual
obligation of any Obligor or any of their respective Subsidiaries (including
without limitation the New Consumer Products Credit Agreement, the Subsidiary
Guaranty and the Revlon Senior Notes), (iii) result in or require the creation
or imposition of any Lien upon any of the properties or assets of any Obligor or
any of its Subsidiaries (other than Liens created under any of the Operative
Agreements in favor of Bank), or (iv) require any approval of stockholders or
any approval or consent of any Person under any material contractual obligation
of any Obligor or any of their respective Subsidiaries.
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D. GOVERNMENTAL CONSENTS. The execution and delivery by each
Obligor of this Amendment and the performance by Company of the Amended
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
E. BINDING OBLIGATION. This Amendment and, in the case of
Company, the Amended Agreement have been duly executed and delivered by each
Obligor and are the legally valid and binding obligations of each Obligor,
enforceable against each Obligor in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be correct and complete in all material respects
on and as of the Second Amendment Effective Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true,
correct and complete in all material respects on and as of such earlier date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing
and after giving effect to this Amendment, no event will result that would
constitute an Event of Default or a Potential Event of Default.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT BY COMPANY AND BANK
In accordance with the terms of the Basic Agreement, Mortgagor
expects to transfer all its right, title and interest in the Roppongi Property
to Mori Building Co., Ltd., and Mori Building Co. Ltd. expects to transfer all
its right, title and interest in the Xxxxxx Xxxxxx Land (as defined in the Basic
Agreement) to Mortgagor (such transfers, the "Swap Transaction"). In connection
with the closing of the transactions contemplated by the Basic Agreement, Bank
and Company hereby agree to take such further action, including causing the
Mortgage to be amended or replaced (at the sole expense of the Company,
including, without limitation, Bank's reasonable legal fees and expenses) as may
reasonably be necessary to release the Lien of the Mortgage on the Roppongi
Property and to provide that the Xxxxxx Xxxxxx Land shall be the Property
subject to the Mortgage, free and clear of other liens. In connection with any
such closing, the Company will deliver or cause to be delivered to Bank (i) an
opinion of Japanese counsel in form and substance reasonably acceptable to Bank
and customary for transactions of this type in Japan, as to the effectiveness
and first priority of the lien on the Xxxxxx Xxxxxx Land in favor of Bank and
the absence of other liens on the Xxxxxx Xxxxxx Land, and (ii) documents
evidencing authorization of Mortgagor to enter into the transactions
contemplated by this Section 4. From and after any such closing, the term
"Mortgage" shall mean the Mortgage as so amended or replaced.
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SECTION 5. ACKNOWLEDGEMENT AND CONSENT BY CREDIT SUPPORT PARTIES
Company is a party to the Pledge Agreement, as amended through
the Second Amendment Effective Date, pursuant to which Company has created Liens
in favor of Bank on certain collateral to secure the Loan Obligations. Mortgagor
is a party to the Mortgage and the Mortgagor Acknowledgement, in each case as
amended through the Second Amendment Effective Date, pursuant to which Mortgagor
has created Liens in favor of Bank on certain collateral to secure the Loan
Obligations. Revlon International is a party to the Stock Pledge Agreement, as
amended through the Second Amendment Effective Date, pursuant to which Revlon
International has pledged certain collateral to Bank to secure the Loan
Obligations. Consumer Products is a party to the Consumer Products Guarantee, as
amended through the Second Amendment Effective Date, pursuant to which Consumer
Products has guaranteed the Loan Obligations. Company, Revlon International,
Mortgagor and Consumer Products are collectively referred to herein as the
"Credit Support Parties," and the Mortgage, the Pledge Agreement, the Stock
Pledge Agreement, and the Consumer Products Guarantee are collectively referred
to herein as the "Credit Support Documents."
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all collateral encumbered
thereby (except as otherwise permitted under Section 4 hereof) will continue to
guaranty or secure, as the case may be, to the fullest extent possible the
payment and performance of all "Loan Obligations," "Guaranteed Obligations" and
"Secured Obligations," as the case may be (in each case as such term is defined
in the applicable Credit Support Document), including without limitation the
payment and performance of all such Loan Obligations," "Guaranteed Obligations"
or "Secured Obligations," as the case may be, in respect of the Loan Obligations
of the Company now or hereafter existing under or in respect of the Amended
Agreement and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Amended Agreement and the Credit Support Documents to which it is a party or
otherwise bound are true, correct and complete in all material respects on and
as of the Second Amendment Effective Date to the same extent as though made on
and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Credit Agreement
or any other Operative Agreement to consent to the amendments to the Credit
Agreement effected pursuant to this Amendment and (ii) nothing in the
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Credit Agreement, this Amendment or any other Operative Agreements shall be
deemed to require the consent of such Credit Support Party to any future
amendments to the Credit Agreement.
SECTION 6. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
OPERATIVE AGREEMENTS.
(i) On and after the Second Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import referring
to the Credit Agreement, and each reference in the other
Operative Agreements to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Operative Agreements shall remain
in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of Bank under, the Credit Agreement
or any of the other Operative Agreements.
B. FEES AND EXPENSES. Company acknowledges that all costs, Bank
Charges, fees and reasonable out-of-pocket third party expenses incurred by Bank
and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. TERMINATION. Either party may terminate this Amendment from
and after November 30, 1999 if the conditions to effectiveness shall not have
been satisfied on or before such date. In such event, this Amendment shall be
void and of no further force of effect, and neither party shall have any
liability or further obligation of any nature to the other party under this
Amendment except as provided in Section 6.B. Termination of this Amendment under
this Section 6.C shall in no event affect the obligations of the parties under
the Credit Agreement of other Operative Agreements.
D. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
E. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
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F. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Section 1 hereof, the effectiveness of which is governed by
Section 2 hereof) shall become effective upon the execution of a counterpart
hereof by Company and Bank and receipt by Company and Bank of written,
telephonic or facsimile notification of such execution and authorization of
delivery thereof. Any party executing this Amendment by facsimile shall promptly
provide and executed original to the other parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
PACIFIC FINANCE & DEVELOPMENT CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Secretary
REVLON CONSUMER PRODUCTS CORPORATION (for
purposes of Section 5 only)
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, Deputy General
Counsel and Secretary
REVLON INTERNATIONAL CORPORATION (for purposes
of Section 5 only)
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Secretary
REVLON REAL ESTATE KABUSHIKI KAISHA (for
purposes of Section 5 only)
By: /s/ H. Xxxxxxx Xxxxx
--------------------------------------
Name: H. Xxxxxxx Xxxxx
Title: Representative Director
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Duly Authorized Sigantory
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