LETTER WAIVER
Exhibit 10.5
[Letterhead of Avon Products, Inc.]
EXECUTION VERSION
Dated as of July 31, 2012
To the banks, financial institutions
and other institutional lenders
(collectively, the “Banks”)
parties to the Credit Agreement
referred to below and to Citibank, N.A.,
as agent (the “Administrative Agent”) for the Banks
Ladies and Gentlemen:
We refer to the Revolving Credit and Competitive Advance Facility Agreement, dated as of November 2, 2010 (the “Credit Agreement”) among the undersigned and you. Capitalized terms not otherwise defined in this Letter Waiver have the same meanings as specified in the Credit Agreement.
As previously disclosed in API's annual report on Form 10-K for the year ended December 31, 2011, in the fourth quarter of 2011, API recorded a non-cash charge of $263 million to adjust good will and indefinite lived intangible assets related to API's Silpada business (the “Silpada Non-cash Charge”). Due to the Silpada Non-cash Charge, as of September 30, 2012, depending upon API's financial result for the third quarter of 2012, API may be unable to comply with the Interest Coverage Ratio covenant set forth in the Credit Agreement. Since it was incurred in the fourth quarter of 2011 and the Interest Coverage Ratio under the Credit Agreement is calculated based on a period of four fiscal quarters ending on the date of determination, the Silpada Non-cash Charge will not be relevant to calculations of the Interest Coverage Ratio for fiscal quarters after the third quarter of 2012.
For purposes of Section 7.02(d) of the Credit Agreement, we hereby request that you waive, and by executing this Letter Waiver you hereby waive, the requirement that we include in the calculation of Interest Coverage Ratio the Silpada Non-cash Charge and permit us, solely for the calculation of the Interest Coverage Ratio as of September 30, 2012, to add back to the consolidated pre-tax income of API and its Consolidated Subsidiaries the Silpada Non-cash Charge.
This Letter Waiver shall become effective as of the date first above written when, and only when, the Administrative Agent shall have received counterparts of this Letter Waiver executed by us and the Required Banks.
The Credit Agreement and the Notes, except to the extent of the waiver specifically provided above, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Except as expressly provided herein, the execution, delivery and effectiveness of this Letter Waiver shall not operate as a waiver of any right, power or remedy of any Bank or the Administrative Agent under the Credit Agreement, or constitute a waiver of any provision of the Credit Agreement.
If you agree to the terms and provisions of this Letter Waiver, please evidence such agreement by executing and returning at least two counterparts of this Letter Waiver to Xxxxx Xxxxxxx, Xxxxxxxx & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
This Letter Waiver may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Letter Waiver by telecopier or other electronic means shall be effective as delivery of a manually executed counterpart of this Letter Waiver.
This Letter Waiver shall be governed by, and construed in accordance with, the laws of the State of New York.
Very truly yours,
AVON PRODUCTS, INC. | ||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: Xxxxxxx X. Xxxxxx | ||||
Title: Vice President & Treasurer | ||||
AVON CAPITAL CORPORATION | ||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: Xxxxxxx X. Xxxxxx | ||||
Title: Vice President & Treasurer | ||||
2
Agreed as of the date first above written: | ||||
CITIBANK, N.A., | ||||
as Administrative Agent and as a Bank | ||||
By: /s/ Xxxxxxx Xxxxxxxxx | ||||
Name: Xxxxxxx Xxxxxxxxx | ||||
Title: Vice President | ||||
BANK OF AMERICA, N.A. | ||||
By: /s/ J. Xxxxx Xxxxxxxx | ||||
Name: J. Xxxxx Xxxxxxxx | ||||
Title: Director | ||||
JPMORGAN CHASE BANK, N.A. | ||||
By: /s/ Xxxx Xxxx | ||||
Name: Xxxx Xxxx | ||||
Title: Executive Director | ||||
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH | ||||
By: | ||||
Name: | ||||
Title: | ||||
DEUTCHE BANK AG NEW YORK BRANCH | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
HSBC BANK USA, NATIONAL ASSOCIATION | ||||
By: /s/ Xxxx Xxxxxxxx | ||||
Name: Xxxx Xxxxxxxx | ||||
Title: Vice President | ||||
XXXXXXX XXXXX BANK USA | ||||
By: /s/ Xxxxxxxx Xxxxxxx | ||||
Name: Xxxxxxxx Xxxxxxx | ||||
Title: Authorized Signatory | ||||
XXXXXX XXXXXXX BANK, N.A. | ||||
By: /s/ Xxxxxxx XxxXxxxx | ||||
Name: Xxxxxxx XxxXxxxx | ||||
Title: Authorized Signatory | ||||
BANCO SANTANDER, S.A., NEW YORK BRANCH | ||||
By: /s/ Xxxx Xxxx-Xxxxxxxx | ||||
Name: Xxxx Xxxx-Xxxxxxxx | ||||
Title: Executive Director | ||||
By: /s/ Xxxxxxx Xxxxxxxx | ||||
Name: Xxxxxxx Xxxxxxxx | ||||
Title: Senior Vice President | ||||
BNP PARIBAS | ||||
By: /s/ Xxxxxx X. Xxxxxxxx XxXxxxxx | ||||
Name: Xxxxxx X. Xxxxxxxx XxXxxxxx | ||||
Title: Managing Director | ||||
By: /s/ Xxxxxx X. Xxxxxx | ||||
Name: Xxxxxx X. Xxxxxx | ||||
Title: Managing Director | ||||
BANCO BILBAO VIZCAYA ARGENTARIA ARIA S.A., NEW YORK BRANCH | ||||
By: /s/ Xxxx X. Xxxxxxxxx | ||||
Name: Xxxx X. Xxxxxxxxx | ||||
Title: Vice President | ||||
By: /s/ Nietzche Rodricks | ||||
Name: Nietzche Rodricks | ||||
Title: Executive Director | ||||
THE NORTHERN TRUST COMPANY | ||||
By: /s/ Xxxxxx X. Xxxxx | ||||
Name: Xxxxxx X. Xxxxx | ||||
Title: Senior Vice President | ||||
U.S. BANK NATIONAL ASSOCIATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
