EXECUTION COPY
$250,000,000
FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of March 20, 1997
Among
MAFCO FINANCE CORP.
(formerly known as MARVEL IV HOLDINGS INC.),
as Borrower,
-----------
THE FINANCIAL INSTITUTIONS AND
THE INITIAL ISSUING BANK NAMED HEREIN,
as Financial Institutions and
-----------------------------
Initial Issuing Bank,
--------------------
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent,
--------------------------------------------
THE BANK OF NEW YORK,
as Documentation Agent,
----------------------
and
THE FIRST NATIONAL BANK OF BOSTON,
as Syndication Agent
--------------------
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms....................................... 3
SECTION 1.02. Computation of Time Periods................................. 40
SECTION 1.03. Accounting Terms............................................ 41
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances................................................ 41
SECTION 2.02. Making the Advances......................................... 42
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit..................................................... 44
SECTION 2.04. Repayment................................................... 46
SECTION 2.05. Termination or Reduction of the Commitments................. 47
SECTION 2.06. Prepayments................................................. 51
SECTION 2.07. Interest.................................................... 52
SECTION 2.08. Interest Rate Determination................................. 53
SECTION 2.09. Fees ...................................................... 54
SECTION 2.10. Increased Costs; Illegality................................. 54
SECTION 2.11. Conversion of Advances...................................... 56
SECTION 2.12. Payments and Computations................................... 57
SECTION 2.13. Taxes ...................................................... 58
SECTION 2.14. Sharing of Payments, Etc.................................... 61
SECTION 2.15. Removal of Lender........................................... 62
SECTION 2.16. Defaulting Lender........................................... 62
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date...................... 65
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance......... 73
SECTION 3.03. Determinations Under Section 3.01........................... 75
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Page
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.............. 75
SECTION 4.02. Representations and Warranties Applicable to Marvel......... 80
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants....................................... 80
(a) Compliance with Laws, Etc............................... 80
(b) Compliance with Environmental Laws...................... 80
(c) Maintenance of Insurance................................ 81
(d) Preservation of Corporate Existence, Etc................ 81
(e) Visitation Rights....................................... 81
(f) Keeping of Books........................................ 81
(g) Maintenance of Properties, Etc.......................... 81
(h) Termination of Financing Statements..................... 82
(i) Collateral Account...................................... 82
(j) Reporting Requirements.................................. 82
(k) Look-Forward Certificate................................ 85
(l) Transactions with Affiliates............................ 86
(m) Use of Proceeds......................................... 86
(n) Mafco Tax Group......................................... 86
(o) Net Cash Proceeds....................................... 87
SECTION 5.02. Negative Covenants.......................................... 87
(a) Liens, Etc.............................................. 87
(b) Lease Obligations....................................... 87
(c) Mergers, Etc............................................ 87
(d) Sales, Etc. of Assets................................... 87
(e) Dividends, Repurchases, Etc............................. 88
(f) Investments............................................. 88
(g) Change in Nature of Business............................ 89
(h) Accounting Changes...................................... 89
(i) Debt.................................................... 89
(j) Charter Amendments...................................... 89
(k) Prepayments, Etc. of Debt............................... 89
(l) Negative Pledge......................................... 89
(m) Partnerships............................................ 89
iii
Page
(n) Capital Expenditures.................................... 89
(o) ssuance of Capital Stock................................ 90
(p) Payment Restrictions.................................... 90
(q) Amendment, Etc. of Related Documents.................... 90
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................... 90
SECTION 6.02. Actions in Respect of the Letters of Credit upon Event of
Default.................................................... 96
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 7.01. Authorization and Action.................................... 97
SECTION 7.02. Administrative Agent's and Collateral Agent's Reliance, Etc. 97
SECTION 7.03. Citibank and Affiliates..................................... 98
SECTION 7.04. Lender Party Credit Decision................................ 98
SECTION 7.05. Indemnification............................................. 98
SECTION 7.06. Successor Administrative Agent and Collateral Agent.........100
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.............................................101
SECTION 8.02. Notices, Etc................................................102
SECTION 8.03. No Waiver; Remedies.........................................102
SECTION 8.04. Costs; Expenses.............................................102
SECTION 8.05. Right of Set-off............................................104
SECTION 8.06. Binding Effect..............................................104
SECTION 8.07. Assignments and Participations..............................105
SECTION 8.08. Governing Law; Submission to Jurisdiction...................108
SECTION 8.09. Execution in Counterparts...................................109
SECTION 8.10. No Liability of the Issuing Bank............................109
SECTION 8.11. WAIVER OF JURY TRIAL........................................109
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Schedule I - List of Commitments and Lending Offices
Schedule II - Borrower Information
Schedule III - List of Existing Debt
Schedule IV - List of Investments
Schedule V - List of Existing Liens
Schedule VI - Calculation of Defeased Debt Amount
Schedule VII - List of Debt for the Definition of Net Cash Proceeds
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Mafco Security Agreement
Exhibit E-1 - Form of Mafco Guaranty
Exhibit E-2 - Form of C&F Guaranty
Exhibit E-3 - Form of Cigar Guaranty
Exhibit E-4 - Form of Xxxxxxx Guaranty
Exhibit E-5 - Form of Flavors Guaranty
Exhibit E-6 - Form of New World Guaranty
Exhibit E-7 - Form of Revlon Guaranty
Exhibit E-8 - Form of Revlon Worldwide Holdings Guaranty
Exhibit F-1 - Form of C&F Pledge Agreement
Exhibit F-2 - Form of New World Pledge Agreement
Exhibit F-3 - Form of Revlon Pledge Agreement
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Exhibit F-4 - Form of Revlon Worldwide Holdings Pledge Agreement
Exhibit F-5 - Form of Revlon Worldwide Parent Pledge Agreement
Exhibit G - Form of Confidentiality Letter
FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of
March 20, 1997 among MAFCO FINANCE CORP., a Delaware corporation (formerly
known as MARVEL IV HOLDINGS INC.) (the "Borrower"), the banks, financial
institutions and other institutional lenders (the "Financial Institutions")
listed on the signature pages hereof, the Initial Issuing Bank (as hereinafter
defined), CITIBANK, N.A. ("Citibank"), as administrative agent (together with
any successor appointed pursuant to Article VII, the "Administrative Agent")
for the Lender Parties (as hereinafter defined) hereunder, THE BANK OF NEW
YORK, as documentation agent (the "Documentation Agent") for the Lender Parties
hereunder, THE FIRST NATIONAL BANK OF BOSTON, as syndication agent (the
"Syndication Agent"; together with the Administrative Agent and the
Documentation Agent, the "Agents") for the Lender Parties hereunder, and
Citibank, as collateral agent (together with any successor appointed pursuant
to Article VII, the "Collateral Agent") for the Lender Parties hereunder and
the Term Credit Agreement Lenders (as hereinafter defined).
PRELIMINARY STATEMENTS
(1) In connection with the purchase of certain assets and the
assumption of certain liabilities (the "Original Transaction") of First
Nationwide Bank, A Federal Savings Bank, by First Madison Bank, F.S.B. (now
known as California Federal Bank, A Federal Savings Bank), an indirect
Subsidiary (as hereinafter defined) of Mafco Holdings Inc., a Delaware
corporation ("Mafco"), the Borrower entered into a Credit Agreement dated as of
July 20, 1994, as amended by the First Amendment dated as of March 10, 1995
(said agreement, as so amended, being the "Original Credit Agreement"), with
the financial institutions and other institutional lenders party thereto (the
"Original Lenders") and Citibank, as agent for the Original Lenders.
(2) Pursuant to the Original Credit Agreement, the Borrower requested
that the Original Lenders make advances to it, in an aggregate principal amount
of up to $240,000,000, on the terms and conditions set forth therein.
(3) Subsequently, the Borrower entered into an Amended and Restated
Credit Agreement dated as of June 29, 1995, as amended by the First Amendment
dated as of October 27, 1995 (said agreement, as so amended, being the "Second
Credit Agreement"), with the financial institutions and other institutional
lenders thereto and Citibank, as agent for such financial institutions and
other institutional lenders.
(4) Pursuant to the Second Credit Agreement, the Borrower requested
that the financial institutions and other institutional lenders party thereto
make advances to it in an aggregate principal amount of up to $350,000,000, on
the terms and conditions set forth therein.
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(5) Subsequently, the Borrower entered into a Second Amended and
Restated Credit Agreement dated as of December 15, 1995, as amended by the
First Amendment dated as of January 9, 1996, the Second Amendment dated as of
January 24, 1996 and the Third Amendment dated as of April 9, 1996 (said
agreement, as so amended, being the "Third Credit Agreement"), with the
financial institutions and other institutional lenders party thereto (the
"Third Lenders") and Citibank, as agent for the Third Lenders.
(6) Pursuant to the Third Credit Agreement, the Borrower requested
that the Third Lenders make advances to it in an aggregate principal amount of
up to $430,000,000, on the terms and conditions set forth therein.
(7) Subsequently, the Borrower entered into a Third Amended and
Restated Credit Agreement dated as of June 3, 1996, as amended by the First
Amendment dated as of September 9, 1996 and the Second Amendment dated as of
October 9, 1996 (said agreement, as so amended, being the "Fourth Credit
Agreement"), with the financial institutions and other institutional lenders
party thereto (the "Fourth Lenders") and Citibank, as agent for the Existing
Lenders.
(8) Pursuant to the Fourth Credit Agreement, the Borrower requested
that the Fourth Lenders make advances to it in an aggregate principal amount of
up to $250,000,000, on the terms and conditions set forth therein.
(9) Subsequently, the Borrower entered into a Fourth Amended and
Restated Revolving Credit Agreement dated as of December 16, 1996, as amended
by the Waiver and Amendment dated as of December 23, 1996 and the Second
Amendment dated as of February 26, 1997 (said agreement, as so amended, being
the "Existing Credit Agreement"), with the financial institutions and other
institutional lenders party thereto (the "Existing Lenders"), Citibank, as
administrative agent for the Existing Lenders, The First National Bank of
Boston, as documentation agent for the Existing Lenders, Chase Securities Inc.,
as syndication agent for the Existing Lenders, the managing agents party
thereto and Citibank, as collateral agent for the Existing Lenders.
(10) Pursuant to the Existing Credit Agreement, the Borrower requested
that the Existing Lenders make advances to it in an aggregate principal amount
of up to $300,000,000 on the terms and conditions set forth therein.
(11) Concurrently with entering into the Existing Credit Agreement,
the Borrower entered into a Term Credit Agreement dated as of December 16,
1996, as amended by the Waiver and Amendment dated as of December 23, 1996 and
the Second Amendment dated as of February 26, 1997 (said agreement, as so
amended, being the "Existing Term
3
Credit Agreement"), with the banks, financial institutions and other
institutional lenders party thereto (the "Existing Term Lenders"), Citibank, as
administrative agent, NationsBanc Capital Markets Inc., as documentation agent,
Credit Suisse First Boston, as syndication agent, the managing agents party
thereto and Citibank, as collateral agent. Pursuant to the Existing Term Credit
Agreement, the Borrower requested that the Existing Term Lenders make advances
to it in an aggregate principal amount of up to $350,000,000, on the terms and
conditions set forth therein.
(12) Concurrently with entering into this Agreement, the Borrower is
entering into an Amended and Restated Term Credit Agreement dated as of the
date hereof (as it may hereafter be amended or otherwise modified from time to
time, the "Term Credit Agreement") with the banks, financial institutions and
other institutional lenders party thereto (the "Term Credit Agreement
Lenders"), Citibank, as administrative agent (in such capacity, the "Term
Administrative Agent"), Credit Suisse First Boston, as documentation agent (in
such capacity, the "Term Documentation Agent"), Chase Securities Inc., as
syndication agent (in such capacity, the "Term Syndication Agent"; together
with the Term Administrative Agent and the Term Documentation Agent, the "Term
Agents") and the Collateral Agent.
(13) The Borrower has requested that the Financial Institutions
hereunder enter into this Agreement to amend and restate the Existing Credit
Agreement and to lend the Borrower and issue Letters of Credits for the benefit
of the Borrower from time to time in an aggregate principal amount of up to
$250,000,000. The Financial Institutions hereunder have indicated their
willingness to amend and restate the Existing Credit Agreement and to agree to
lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree
that, subject to the satisfaction of the conditions set forth in Section 3.01,
the Existing Credit Agreement is amended and restated in its entirety to read
as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
4
"A Company" means each Loan Party, FN Parent, FN Holdings, Xxxxxxx
Holdings Inc., Xxxxxxx Worldwide, National Health Care Group Inc., Revlon
Holdings Inc. and Revlon Worldwide.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 3685-2248.
"ADR Collateral Account" has the meaning specified in the Mafco
Security Agreement.
"ADR Reserve Amount" means, as of any date, with respect to the
Revolving Credit Facility, an amount (not less than $0) equal to the excess of
(i) the aggregate amount released from the ADR Collateral Account on or prior
to such date (to the extent such amount has not been redeposited in the ADR
Collateral Account) in accordance with the provisions of Section 7(i) of the
Mafco Security Agreement over (ii) the aggregate amount of the proceeds of the
Revolving Credit Borrowings made pursuant to the proviso in Section 2.01(a).
"Advance" means a Revolving Credit Advance or a Letter of Credit
Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct
or indirect, of the power to vote 5% or more of the Voting Stock of such Person
or to direct or cause direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"Xxxxxxx" means Xxxxxxx Group Incorporated, a Delaware corporation.
"Applicable Lending Office" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate Advance
and such Lender Party's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Applicable Margin" means, at any time, 2.50% per annum for Base Rate
Advances and 4.50% per annum for Eurodollar Rate Advances.
5
"Asset Sale" means the sale, lease, transfer or other disposition
(collectively, a "disposition") of assets of Mafco or any of its Subsidiaries
other than a disposition of any of the following:
(i) all or any portion of the capital stock of Laboratory
Corporation of America Holdings, or Meridian Sports Incorporated,
(ii) all or any portion of the capital stock or assets of the
Bank or any of its Subsidiaries,
(iii) any asset of Ropa Two Corporation so long as the Net Cash
Proceeds from any disposition of an asset of Ropa Two Corporation
shall be reinvested, within twelve months following the date of such
disposition, in the business of Ropa Two Corporation or any of its
Subsidiaries, and
(iv) all or any portion of the News Corp. Preferred ADRs;
provided, however, that
(a) a disposition of assets of (x) a Designated Operating Company
or any of its Subsidiaries, (y) Meridian Sports Incorporated or any of
its Subsidiaries or (z) Marvel or any of its Subsidiaries shall, in
each case, only be considered an Asset Sale for purposes of this
Agreement to the extent, and only to the extent, that all or a portion
of the proceeds of such disposition are received by any of Mafco or
any of its Subsidiaries (other than (i) a Designated Operating Company
or any of its Subsidiaries, (ii) Meridian Sports Incorporated or any
of its Subsidiaries or (iii) Marvel or any of its Subsidiaries)
through a dividend, distribution, loan, advance or other similar
payment,
(b) subject to the other clauses of this proviso, so long as the
Revlon Holdings Statement is true and correct both before and after
giving effect to such disposition, a disposition of assets of Revlon
Holdings Inc. or any of its Subsidiaries (other than Revlon Worldwide
Parent and Revlon Worldwide Holdings) shall only be considered an
Asset Sale for purposes of this Agreement to the extent, and only to
the extent, that all or a portion of the proceeds of such disposition
are received by any of Mafco or any of its Subsidiaries (other than
Revlon Holdings Inc. or any of its Subsidiaries (other than Revlon
Worldwide Parent and Revlon Worldwide Holdings)) through a dividend,
distribution, loan, advance or other similar payment,
6
(c) notwithstanding clause (b) of this proviso, a disposition of
all or any portion of the capital stock of Revlon Worldwide, Revlon
Worldwide Parent, Revlon Worldwide Holdings, National Health Care
Group, Inc. or Xxxxxxx of the Ritz Group Ltd. (but in the case of
Xxxxxxx of the Ritz Group Ltd., only if it owns any of the capital
stock of Revlon Worldwide Corporation at the time of such disposition)
and a disposition of all or any portion of the capital stock of Revlon
pledged in favor of the Collateral Agent shall be considered an Asset
Sale for purposes of this Agreement, and
(d) notwithstanding clause (b) of this proviso, a disposition of
any asset (other than assets specifically excluded from this
definition of "Asset Sale") of National Health Care Group, Inc. or any
of its Subsidiaries (other than Revlon and its Subsidiaries) shall be
considered an Asset Sale for purposes of this Agreement.
"Asset Sale Threshold" means the receipt on and after the Effective
Date by Mafco and its Subsidiaries of aggregate Net Cash Proceeds from Asset
Sales in an amount equal to the excess of (x) $265 million over (y) the
aggregate Net Cash Proceeds from Asset Sales received by Mafco and its
Subsidiaries during the period from February 24, 1997 through the Effective
Date.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an assignee of such Lender Party, and accepted by
the Administrative Agent, in substantially the form of Exhibit B hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).
"Bank" means California Federal Bank, A Federal Savings Bank, and any
successor thereto.
"Bank Preferred Stock Document" means the Federal Stock Charter of
California Federal Bank, A Federal Savings Bank, as supplemented by the First
Supplemental Section to Section 5B of the Charter of California Federal Bank, A
Federal Savings Bank, the Second Supplemental Section to Section 5B of the
Charter of California Federal Bank, A Federal Savings Bank, the Third
Supplemental Section to Section 5B of the Charter of California Federal Bank, A
Federal Savings Bank, and the Fourth Supplemental Section to Section 5B of the
Charter of California Federal Bank, A Federal Savings Bank.
7
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the highest
of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate; 7
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, plus (ii) the rate obtained by dividing (A) the latest three-week
moving average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States money
market banks, such three-week moving average (adjusted to the basis of a
year of 360 days) being determined weekly on each Monday (or, if such day
is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on the basis of
such rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates received
by Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to 100%
minus the average of the daily percentages specified during such three-week
period by the Board of Governors of the Federal Reserve System (or any
successor thereto) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities) three-month U.S.
dollar non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment rates
estimated by Citibank for determining the then current annual assessment
payable by Citibank to the Federal Deposit Insurance Corporation (or any
successor thereto) for insuring U.S. dollar deposits of Citibank in the
United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrower Collateral Account" has the meaning specified in the
Borrower Security Agreement.
8
"Borrower Parent" means Mafco Guarantor Corp., a Delaware corporation
(formerly known as Marvel V Holdings Inc.).
"Borrower Parent Guaranty" means the Third Amended and Restated
Guaranty dated as of December 16, 1996 made by the Borrower Parent in favor of
the Lender Parties, the Term Credit Agreement Lenders, the Agents, the Term
Agents and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"Borrower Parent Security Agreement" means the Amended and Restated
Security Agreement dated as of December 16, 1996 made by the Borrower Parent
and The Bank of New York, in its capacity as voting trustee, to the Collateral
Agent, as such agreement may be amended or otherwise modified from time to time
in accordance with its terms.
"Borrower Security Agreement" means the Fourth Amended and Restated
Borrower Security Agreement dated as of December 16, 1996 made by the Borrower
to the Collateral Agent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
"Borrower's Account" means the account of the Borrower maintained by
the Borrower with Citibank, N.A., at its office at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Account No. 00000000.
"Borrowing" means a Revolving Credit Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market and banks are open for business in London.
"C&F Guarantor" means Mafco Consolidated Holdings Inc., a Delaware
corporation (formerly known as C&F (Parent) Holdings Inc.).
"C&F Guaranty" means the Third Amended and Restated Guaranty dated as
of March 20, 1997 made by C&F Guarantor in favor of the Lender Parties, the
Term Credit Agreement Lenders, the Agents, the Term Agents and the Collateral
Agent, as such guaranty may be amended or otherwise modified from time to time
in accordance with its terms.
"C&F Pledge Agreement" means the Second Amended and Restated Pledge
Agreement dated as of March 20, 1997 made by C&F Guarantor to the Collateral
Agent, as
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such agreement may be amended or otherwise modified from time to time in
accordance with its terms.
"Calculation Period" means, for any date in respect of any common
stock, the immediately preceding five Business Days during which such common
stock traded on the relevant national stock exchange or the Nasdaq national
market system.
"Capital Expenditures" means, for any period, the sum of (a) all
expenditures during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have a useful life of more than one year plus (b) the aggregate
principal amount of all Debt (including obligations under Capitalized Leases)
assumed or incurred in connection with any such expenditures.
"Capitalized Leases" has the meaning specified in clause (e) of the
definition of "Debt".
"Cash Equivalents" means any of the following, to the extent owned by
the Borrower or its Subsidiaries free and clear of all Liens and having a
maturity not greater than 180 days from the date of issuance thereof: (a)
direct obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in clause (c), is
organized under the laws of the United States or any State thereof and has
combined capital and surplus of at least $1,000,000,000, (c) commercial paper
in an aggregate amount of not more than $10,000,000 per issuer outstanding at
any time, issued by any corporation organized under the laws of any State of
the United States and rated at least "Prime-1" (or the then equivalent grade)
by Xxxxx'x Investors Services, Inc. or "A-1" (or the then equivalent grade) by
Standard & Poor's Ratings Group or (d) shares of money market mutual or similar
funds having assets in excess of $100,000,000 and which invest exclusively in
assets satisfying the requirements of clauses (a) through (c) of this
definition.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980.
"Cigar Guarantor" means Consolidated Cigar II Holdings Inc., a
Delaware corporation.
"Cigar Guaranty" means the Fourth Amended and Restated Cigar Guaranty
dated as of March 20, 1997 made by Cigar Guarantor in favor of the Lender
Parties, the
10
Term Credit Agreement Lenders, the Agents, the Term Agents and the Collateral
Agent, as such guaranty may be amended or otherwise modified from time to time
in accordance with its terms.
"Cigar Non-Operating Subsidiary" means C&F Guarantor.
"Cigar Pledge Agreement" means the Second Amended and Restated Cigar
Pledge Agreement dated as of December 16, 1996 made by Cigar Guarantor and The
Bank of New York, in its capacity as voting trustee, to the Collateral Agent,
as such agreement may be amended or otherwise modified from time to time in
accordance with its terms.
"Citibank" has the meaning specified in the recital of parties to this
Agreement.
"Clean-Down Period" means any period of 30 consecutive days during
which the aggregate principal amount of the Revolving Credit Advances and
Letter of Credit Advances outstanding does not exceed $0.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.
"Coleman" means The Xxxxxxx Company, Inc., a Delaware corporation.
"Xxxxxxx Guarantor" means Xxxxxxx (Parent) Holdings Inc., a Delaware
corporation.
"Coleman Guaranty" means the Fourth Amended and Restated Xxxxxxx
Guaranty dated as of March 20, 1997 made by Xxxxxxx Guarantor in favor of the
Lender Parties, the Term Credit Agreement Lenders, the Agents, the Term Agents
and the Collateral Agent, as such guaranty may be amended or otherwise modified
from time to time in accordance with its terms.
"Xxxxxxx Holdings" means Xxxxxxx Holdings Inc., a Delaware
corporation.
"Xxxxxxx Non-Operating Subsidiaries" means Xxxxxxx Holdings and
Xxxxxxx Worldwide.
"Xxxxxxx Pledge Agreement" means the Second Amended and Restated
Pledge Agreement dated as of December 16, 1996 made by Xxxxxxx Guarantor to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
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"Xxxxxxx Tax Agreements" means (i) the Tax Allocation Agreement dated
as of August 24, 1990, as amended through the date hereof, between Mafco and
New Xxxxxxx, (ii) the Tax Sharing Agreement dated as of February 26, 1992, as
amended through the date hereof, among Mafco, Xxxxxxx Finance Holdings Inc.,
Xxxxxxx and the Subsidiaries of Xxxxxxx party thereto, (iii) the Tax Sharing
Agreement dated as of February 26, 1992, as amended through the date hereof,
among Mafco, New Xxxxxxx, Xxxxxxx Finance Holdings Inc. and the Subsidiaries of
Xxxxxxx Finance Holdings Inc. party thereto, (iv) the Tax Equivalent Payment
Agreement dated as of March 4, 1992, as amended through the date hereof,
between Mafco and Xxxxxxx Finance Holdings Inc., (v) the Supplemental Tax
Sharing Agreement dated as of February 26, 1992, as amended through the date
hereof, between Xxxxxxx and M&F, (vi) the Tax Sharing Agreement dated as of May
27, 1993 among Mafco, Xxxxxxx Worldwide, Xxxxxxx and its Subsidiaries party
thereto, (vii) the Tax Sharing Agreement dated as of May 27, 1993 among Mafco,
Xxxxxxx Worldwide and the other Persons party thereto, (viii) the Tax Sharing
Agreement dated as of July 22, 1993 between Mafco and Xxxxxxx Holdings, and
(ix) the Tax Sharing Termination Agreement dated as of May 27, 1993 among
Mafco, New Xxxxxxx, Xxxxxxx and the other Persons party thereto.
"Xxxxxxx Worldwide" means Xxxxxxx Worldwide Corporation, a Delaware
corporation.
"Xxxxxxx Worldwide Indenture" has the meaning specified in Schedule
VI.
"Xxxxxxx Worldwide XXXXX" means the Liquid Yield Option Notes Due 2013
issued by Xxxxxxx Worldwide.
"Xxxxxxx Worldwide Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by Xxxxxxx Worldwide to the Collateral Agent, as such agreement may be amended
or otherwise modified from time to time in accordance with its terms.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Collateral Agent, the Lender Parties, the Term Credit
Agreement Lenders, the Agents and the Term Agents.
"Collateral Accounts" means the ADR Collateral Account, the Borrower
Collateral Account, the Mafco Collateral Account, the Second Mafco Collateral
Account and the L/C Cash Collateral Account.
"Collateral Agent" has the meaning specified in the recital of the
parties hereto.
12
"Collateral Documents" means each Security Agreement and each Pledge
Agreement.
"Commitment" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Consolidated", for any Person, refers to the consolidation of the
financial statements of such Person and its Subsidiaries in accordance with
GAAP.
"Consolidated Cigar Holdings" means Consolidated Cigar Holdings Inc.,
a Delaware corporation.
"Consolidated Cigar Tax Agreement" means the Amended and Restated Tax
Sharing Agreement entered into as of June 15, 1995 among Mafco, MCG,
Consolidated Cigar Holdings, Consolidated Cigar Corporation and its
Subsidiaries party thereto.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.11.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money; (b) all Obligations of such Person for the
deferred purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such Person's
business); (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments; (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired 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); (e) all Obligations of
such Person as lessee under leases that have been or should be, in accordance
with GAAP, recorded as capital leases ("Capitalized Leases"); (f) all
Obligations, contingent or otherwise, of such Person under acceptance, letter
of credit or similar facilities; (g) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise acquire for value any capital
stock of such Person or any warrants, rights or options to acquire such capital
stock; (h) all Obligations of such Person in respect of Hedge Agreements; (i)
all Debt of others referred to in clauses (a) through (h) above guaranteed
directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay or
purchase such Debt or to advance or supply funds for the payment or purchase of
such Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or
13
(iv) otherwise to assure a creditor against loss; and (j) all Debt referred to
in clauses (a) through (i) above secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any Lien
on property (including, without limitation, accounts and contract rights) owned
by such Person, even though such Person has not assumed or become liable for
the payment of such Debt. For all purposes of this Agreement and the other Loan
Documents, "Debt" shall not include Obligations of any Designated Operating
Company, Revlon, Marvel or any of their respective Subsidiaries in respect of
Hedge Agreements.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the amount of any Advance required to be made by such Lender Party to the
Borrower pursuant to Section 2.01 at or prior to such time which has not been
so made as of such time; provided, however, that any Advance made by the
Administrative Agent for the account of such Lender Party pursuant to Section
2.02(c) shall not be considered a Defaulted Advance even if, at such time, such
Lender shall not have reimbursed the Administrative Agent therefor as provided
in Section 2.02(c). In the event that a portion of a Defaulted Advance shall be
deemed made pursuant to Section 2.16(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted Advance originally required
to be made pursuant to Section 2.01 on the same date as the Defaulted Advance
so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to the Administrative
Agent, the Collateral Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time which has not been so paid as of
such time, including, without limitation, any amount required to be paid by
such Lender to (a) the Issuing Bank pursuant to Section 2.03(c) to purchase a
portion of a Letter of Credit Advance made by the Issuing Bank, (b) the
Administrative Agent pursuant to Section 2.02(c) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Lender Party, (c) any other Lender Party pursuant
to Section 2.14 to purchase any interest or participating interest in Advances
owing to such other Lender Party and (d) the Administrative Agent, the
Collateral Agent or the Issuing Bank pursuant to Section 7.05 to reimburse the
Administrative Agent, the Collateral Agent or the Issuing Bank, as the case may
be, for such Lender Party's ratable share of any amount required to be paid by
the Lender Parties to the Administrative Agent, the Collateral Agent or the
Issuing Bank as provided therein. In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.16(b), the remaining portion
of such Defaulted Amount shall be considered a Defaulted Amount originally
required to be made hereunder or under any other Loan Document on the same date
as the Defaulted Amount so deemed paid in part.
14
"Defaulting Lender" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take or
be the subject of any action or proceeding of a type described in Section
6.01(e).
"Defeased Debt Amount" means for any date of determination for any
Designated Person listed on Schedule VI an amount calculated in the manner set
forth on Schedule VI for such Designated Person or such other amount as may be
agreed by the Administrative Agent and the Borrower.
"Deposit Certificate" has the meaning specified in Section 5.01(k).
"Designated Xxxxxxx Subsidiaries" means Xxxxxxx Holdings, Xxxxxxx
Worldwide and Xxxxxxx.
"Designated Operating Companies" means Xxxxxxx, MCG and Revlon;
provided, however, that (x) on and after the Marvel Inclusion Date, Marvel
shall be a "Designated Operating Company", (y) on and after the MCG Inclusion
Date, Consolidated Cigar Holdings shall be a "Designated Operating Company" and
MCG shall cease to be a "Designated Operating Company" and (z) on and after the
PCT Inclusion Date, PCT shall be a "Designated Operating Company".
"Designated Persons" means Xxxxxxx Guarantor, Mafco, C&F Guarantor,
Revlon Worldwide Parent and the Bank; provided, however, that (x) on and after
the date of the sale, disposal or other transfer of all of the News Corp.
Preferred ADRs held by Mafco and its Subsidiaries, Mafco shall no longer be a
"Designated Person" and (y) on and after the PCT Inclusion Date, MCG shall be a
"Designated Person".
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Dollars" and the sign "$" each mean lawful money of the United
States.
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender Party, as the case may be, or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
15
"Eligible Assignee" means (a) any commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $1,000,000,000; (b) any savings and loan association or savings bank
organized under the laws of the United States, or any State thereof, and having
a net worth determined in accordance with GAAP in excess of $500,000,000; (c)
any commercial bank organized under the laws of any other country that is a
member of the Organization for Economic Cooperation and Development ("OECD") or
has concluded special lending arrangements with the International Monetary Fund
Associated with its General Arrangements to Borrow, or a political subdivision
of any such country, and having total assets in excess of $1,000,000,000, so
long as such bank is acting through a branch or agency located in the United
States, in the Cayman Islands or in the country in which it is organized or
another country that is described in this clause (c); (d) the central bank of
any country that is a member of the OECD; (e) any finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that (i) is not affiliated with the
Borrower, (ii) is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and (iii) has total
assets in excess of $500,000,000; and (f) any other Person (other than an
Affiliate of the Borrower) approved by the Administrative Agent and the
Borrower, such approval not to be unreasonably withheld.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of non-compliance
or violation, investigation, proceeding, consent order or consent agreement
based upon or arising out of any Environmental Law or any Environmental Permit,
including without limitation (a) any claim by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any Environmental Law and (b) any claim by any
third party seeking damages, contribution, or injunctive relief arising from
alleged injury or threat of injury to health, safety or the environment.
"Environmental Law" means any federal, state or local law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
relating to the environment, health or safety including, without limitation,
CERCLA, the Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the
Clean Air Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal
Insecticide, Fungicide and Rodenticide Act and the Occupational Safety and
Health Act.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"Equity Contribution Agreement" means the Amended and Restated Equity
Contribution Agreement dated as of December 16, 1996, between the Borrower and
the
16
Borrower Parent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled group, or
under common control with such Person, within the meaning of Section 414 of the
Code.
"ERISA Event", with respect to any Person, means (a) the occurrence of
a reportable event, within the meaning of Section 4043 of ERISA, with respect
to any Plan of such Person or any of its ERISA Affiliates unless the 30-day
notice requirement with respect to such event has been waived by the PBGC; (b)
the provision by the administrator of any Plan of such Person or any of its
ERISA Affiliates of a notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (c) the cessation of
operations at a facility of such Person or any of its ERISA Affiliates in the
circumstances described in Section 4062(e) of ERISA; (d) the withdrawal by such
Person or any of its ERISA Affiliates from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (e) the failure by such Person or any of its ERISA
Affiliates to make a payment to a Plan described in Section 302(f)(1) of ERISA;
(f) the adoption of an amendment to a Plan of such Person or any of its ERISA
Affiliates requiring the provision of security to such Plan, pursuant to
Section 307 of ERISA; or (g) the institution by the PBGC of proceedings to
terminate a Plan of such Person or any of its ERISA Affiliates, pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that would constitute grounds for the termination of, or
the appointment of a trustee to administer, such Plan; provided, however, that
an event described in clause (a), (c) or (d) of this definition, or in clause
(b) of this definition solely with respect to a standard termination under
Section 4041(b) of ERISA, shall be an ERISA Event only if such event is
reasonably likely to result in a material liability of such Person or any of
its ERISA Affiliates.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of
17
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in U.S. dollars
are offered by the principal office of Citibank in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period. The Eurodollar Rate for each
Interest Period shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent from
Citibank two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.07.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender Party for any
Interest Period for any Advance means the reserve percentage applicable during
such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or
other marginal reserve requirement) for such Lender Party with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agreement" means the Exchange Agreement dated as of October
3, 1994 among FN Parent, FN Holdings and Xxxxxx X. Xxxx.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Existing Lenders" has the meaning specified in the Preliminary
Statements.
18
"Existing Term Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Existing Term Lenders" has the meaning specified in the Preliminary
Statements.
"Facility" means the Revolving Credit Facility or the Letter of Credit
Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, 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.
"FG Guarantor" means First Gibraltar Guarantor Corp., a Delaware
corporation.
"Financial Institutions" has the meaning specified in the recital of
parties to this Agreement.
"First Gibraltar" means First Gibraltar Holdings Inc., a Delaware
corporation.
"First Gibraltar Charter Document" means the restated certificate of
incorporation of First Gibraltar.
"First Gibraltar Credit Agreement" means the $150,000,000 Credit
Agreement dated as of September 27, 1996, as heretofore amended, among First
Gibraltar, FG Guarantor, the banks and other financial institutions party
thereto, NationsBank, N.A., as administrative agent, NationsBanc Capital
Markets, Inc., as syndication agent and Citibank, as documentation agent, as
the same may hereafter be amended, modified or otherwise supplemented from time
to time in accordance with the Loan Documents.
"First Gibraltar Loan Agreement" means the Amended and Restated Loan
Agreement dated as of December 16, 1996 between the Borrower Parent and First
Gibraltar, as amended or otherwise modified from time to time in accordance
with its terms.
"Flavors Guarantor" means Flavors (Parent) Holdings Inc., a Delaware
corporation.
19
"Flavors Guaranty" means the Fourth Amended and Restated Flavors
Guaranty dated as of March 20, 1997 made by Flavors Guarantor in favor of the
Lender Parties, the Term Credit Agreement Lenders, the Agents, the Term Agents
and the Collateral Agent, as such guaranty may be amended or otherwise modified
from time to time in accordance with its terms.
"Flavors Non-Operating Subsidiary" means C&F Guarantor.
"Flavors Pledge Agreement" means the Second Amended and Restated
Flavors Pledge Agreement dated as of December 16, 1996 made by Flavors
Guarantor and The Bank of New York, in its capacity as voting trustee, to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"FN Documents" means the FN Holdings Debt Document, the FN Holdings
New Debt Document, the Second New FN Holdings Debt Document, the FN Parent Debt
Document, the Exchange Agreement and the Stockholders Agreement.
"FN Escrow" means First Nationwide Escrow Corp., a Delaware
corporation.
"FN Holdings" means First Nationwide Holdings Inc., a Delaware
corporation.
"FN Holdings Debt" means the 12-1/4% Senior Notes due 2001 issued by
FN Holdings in an aggregate principal amount equal to $200,000,000.
"FN Holdings Debt Document" means the Indenture dated as of July 15,
1994 made by FN Holdings in favor of The First National Bank of Boston, as
trustee, in connection with the FN Holdings Debt and any other agreement or
instrument which governs the terms of the FN Holdings Debt.
"FN Holdings New Debt" means the 9-1/8% Senior Subordinated Notes Due
2003 issued by FN Holdings in an aggregate principal amount equal to
$140,000,000.
"FN Holdings New Debt Document" means the Indenture dated as of
January 31, 1996 made by FN Holdings in favor of The Bank of New York, as
trustee, in connection with the FN Holdings New Debt and any other agreement or
instrument which governs the terms of the FN Holdings New Debt.
"FN Holdings Preferred Stock" means the $150,000,000 liquidation value
of Cumulative Perpetual Preferred Stock issued by FN Holdings and any shares of
Cumulative
20
Perpetual Preferred Stock to be issued in lieu of cash dividends payable on the
FN Holdings Preferred Stock.
"FN Management Incentive Plan" means the Management Incentive Plan for
Certain Employees of the Bank established by FN Holdings to provide long-term
incentives to certain key executives of the Bank.
"FN Parent" means First Nationwide (Parent) Holdings Inc., a Delaware
corporation.
"FN Parent Debt" means the 12-1/2% Senior Notes due 2003 issued by FN
Parent in an aggregate principal amount equal to $455,000,000.
"FN Parent Debt Document" means the Indenture dated as of April 15,
1996 made by FN Parent in favor of The Bank of New York, as trustee, in
connection with the FN Parent Debt and any other agreement or instrument which
governs the terms of the FN Parent Debt.
"FN Parties" means the Bank, FN Holdings and FN Parent.
"FN Tax Agreement" means the Tax Sharing Agreement dated as of January
1, 1994 among Mafco, FN Holdings, the Bank and certain Subsidiaries of FN
Holdings and the Bank.
"Four Star" means Four Star Holdings Corp., a Delaware corporation.
"Four Star Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by Four Star and The Bank of New York, in its capacity as voting trustee, to
the Collateral Agent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
"Fourth Credit Agreement" has the meaning specified in the Preliminary
Statements.
"Fourth Lenders" has the meaning specified in the Preliminary
Statements.
"Fully Satisfied" shall mean, with respect to the Payment Obligations
as of any date, that, on or before such date, (a) the principal of and interest
accrued to such date on all outstanding Advances shall have been paid in full
in cash, (b) the Commitments shall have been terminated in full, (c) all
outstanding Letters of Credit shall have been (i) terminated or
21
(ii) cash collateralized by an amount sufficient in the reasonable judgment of
the Administrative Agent and the Required Lenders to secure any claims under
such outstanding Letters of Credit or (iii) secured by one or more letters of
credit on terms and conditions, and with one or more financial institutions,
reasonably satisfactory to the Administrative Agent and the Required Lenders
and (d) all fees, expenses and other amounts then due and payable which
constitute Payment Obligations shall have been paid in cash; provided, however,
that on such date none of the Administrative Agent and the Lender Parties shall
have made any claims in respect of Payment Obligations against the Borrower or
any other Loan Party under any provision of any of the Loan Documents that has
not been cash collateralized by an amount sufficient in the reasonable judgment
of the Administrative Agent, the Required Lenders and any such Lender Party (if
such Lender Party is not one of the Lenders constituting the Required Lenders)
to secure such claim.
"GAAP" means 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 referred to in Section
4.01(f), except that with respect to (x) the preparation of any financial
statement required to be furnished pursuant to clause (i), (ii) or (iii) of
Section 5.01(j) and (y) changes to financial statement presentation and
accounting policies contemplated by Section 5.02(h), "GAAP" shall mean such
principles as in effect from time to time in the United States of America.
"Guarantor" means each of Mafco, Borrower Parent, Xxxxxxx Guarantor,
New World Guarantor, Flavors Guarantor, Cigar Guarantor, C&F Guarantor, Revlon
Worldwide Holdings, Revlon Guarantor, and, on and after the MCG Inclusion Date,
MCG.
"Guaranty" means each of the Mafco Guaranty, the Borrower Parent
Guaranty, the Xxxxxxx Guaranty, the New World Guaranty, the Flavors Guaranty,
the Cigar Guaranty, the C&F Guaranty, the Revlon Worldwide Holdings Guaranty,
the Revlon Guaranty and, on and after the MCG Inclusion Date, the MCG Guaranty.
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation and radon gas, (b) any substances defined as
or included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous wastes", "restricted hazardous
wastes", "toxic substances", "toxic pollutants", "contaminants" or
"pollutants", or words of similar import, under any Environmental Law and (c)
any other substance exposure to which is regulated under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
22
"Indemnified Party" has the meaning specified in Section 8.04(c).
"Initial Date" means, for purposes of Section 2.13, in the case of the
Administrative Agent and each Financial Institution, the date of its execution
and delivery of this Agreement and, in the case of each Lender other than a
Financial Institution, the date of the Assignment and Acceptance pursuant to
which it becomes a Lender.
"Initial Issuing Bank" means Citibank, N.A.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance, and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that
(i) the Borrower may not select any Interest Period which ends after
the Termination Date;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(iii) whenever the first day of any Interest Period occurs on a day in
a calendar month for which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar
month.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, debt obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person, including,
without limitation, any arrangement pursuant to which the investor
23
incurs Debt of the types referred to in clauses (i) and (j) of the definition
of "Debt" in respect of such Person.
"Issuing Bank" means the Initial Issuing Bank and each Eligible
Assignee to which the Letter of Credit Commitment hereunder has been assigned
pursuant to Section 8.07.
"L/C Cash Collateral Account" has the meaning specified in the
Borrower Security Agreement.
"L/C Certificate" means a certificate of the Borrower delivered to the
Administrative Agent in respect of a Letter of Credit Advance (A) to the effect
that on the date of delivery (i) the representations and warranties contained
in the Loan Documents are correct in all material respects on and as of such
date, as though made on and as of such date (except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties were true, correct and complete in all
material respects on and as of such earlier date and (ii) no event has occurred
and is continuing which constitutes a Default and (B) specifying the Type of
Advance such Letter of Credit Advance shall be and, if such Letter of Credit
Advance is to be a Eurodollar Rate Advance, the Interest Period for such Letter
of Credit Advance.
"L/C Related Documents" has the meaning specified in Section
2.04(b)(ii).
"Lender Party" means any Lender or the Issuing Bank.
"Lenders" means the Financial Institutions listed on the signature
pages hereof and each Eligible Assignee that shall become a party hereto
pursuant to Section 8.07.
"Letter of Credit" has the meaning specified in Section 2.01(b).
"Letter of Credit Advance" means an advance made by the Issuing Bank
or any Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to the Issuing Bank
at any time, the amount set forth opposite the Issuing Bank's name on Schedule
I hereto under the caption "Letter of Credit Commitment" or, if the Issuing
Bank has entered into one or more Assignments and Acceptances, the amount set
forth for the Issuing Bank in the Register maintained by the Administrative
Agent pursuant to Section 8.07(c) as the Issuing Bank's "Letter of Credit
Commitment", as such amount may be reduced at or prior to such time pursuant to
Section 2.05.
24
"Letter of Credit Facility" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Commitment at such time.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"Loan Documents" means this Agreement, the Notes, each Letter of
Credit Agreement, each Guaranty, each Collateral Document, the Equity
Contribution Agreement and the First Gibraltar Loan Agreement.
"Loan Party" means each of the Borrower, each Guarantor, M&F, Xxxxxxx,
Four Star, New Xxxxxxx, First Gibraltar and Revlon Worldwide Parent.
"Look-Forward Certificate" has the meaning specified in Section
5.01(k).
"M&F" means MacAndrews & Forbes Holdings Inc., a Delaware corporation.
"M&F Pledge Agreement" means the Amended and Restated Non-Recourse
Guaranty and Pledge Agreement dated as of December 16, 1996 made by M&F to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Mafco" has the meaning specified in the Preliminary Statements.
"Mafco Collateral Account" has the meaning specified in the Mafco
Security Agreement.
"Mafco Finance Required Lenders" means, at any time, Lenders and Term
Credit Agreement Lenders owed or holding at least a majority in interest of the
sum of (a) the aggregate principal amount of the Advances outstanding at such
time, (b) the aggregate principal amount of the Debt outstanding at such time
under the Term Credit Agreement, (c) the aggregate Available Amount of all
Letters of Credit outstanding at such time, (d) the aggregate Unused Revolving
Credit Commitment at such time and (e) the aggregate unused "Commitments" under
the Term Credit Agreement (provided that, for purposes hereof, neither the
Borrower, nor any of its Affiliates, if a Lender or a Term Credit Agreement
Lender, shall be included in (x) the Lenders and the Term Credit Agreement
Lenders holding such amount of the Advances, the Debt or the Available Amount
of all Letters of Credit or having such amount of the Unused Revolving Credit
Commitment or the "Commitments" under the Term
25
Credit Agreement or (y) determining the aggregate unpaid principal amount of
the Advances or such Debt, the total Unused Revolving Credit Commitment or the
total "Commitments" under the Term Credit Agreement); provided, however, that
if any Lender shall be a Defaulting Lender at such time or any Term Credit
Agreement Lender shall be a "Defaulting Lender" under the Term Credit Agreement
at such time, there shall be excluded from the determination of Mafco Finance
Required Lenders at such time (i) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as Lender) and outstanding at
such time, (ii) the aggregate principal amount of Debt under the Term Credit
Agreement owing to such Term Credit Agreement Lender and outstanding at such
time, (iii) such Lender's Pro Rata Share of the aggregate Available Amount of
all Letters of Credit issued by such Lender as of such time, (iv) the aggregate
Unused Revolving Credit Commitment of such Lender at such time and (v) the
aggregate unused portion of the "Commitments" of such Term Credit Agreement
Lender under the Term Credit Agreement at such time; provided further that on
and after the Term Credit Agreement Termination Date, the Mafco Finance
Required Lenders shall be the Required Lenders hereunder. For purposes of this
definition, the aggregate principal amount of Letter of Credit Advances owing
to the Issuing Bank and the Available Amount of each Letter of Credit shall be
considered to be owed to the Lenders ratably in accordance with their
respective Revolving Credit Commitments.
"Mafco Guaranty" means the Fifth Amended and Restated Mafco Guaranty
dated as of March 20, 1997 made by Mafco in favor of the Lender Parties, the
Term Credit Agreement Lenders, the Agents, the Term Agents and the Collateral
Agent, as such guaranty may be amended or otherwise modified from time to time
in accordance with its terms.
"Mafco Pledge Agreement" means the Second Amended and Restated Pledge
Agreement dated as of December 16, 1996 made by Mafco and The Bank of New York,
in its capacity as voting trustee, to the Collateral Agent, as such agreement
may be amended or otherwise modified from time to time in accordance with its
terms.
"Mafco Security Agreement" means the Fifth Amended and Restated Mafco
Security Agreement dated as of March 20, 1997 made by Mafco to the Collateral
Agent, as such agreement may be amended or otherwise modified from time to time
in accordance with its terms.
"Mandatory Clean-Down Period" means (i) the 30-day period commencing
on March 31, 1998 and terminating on April 29, 1998, if a Clean-Down Period has
not commenced (after the date of this Agreement) prior to March 31, 1998 and
(ii) thereafter, for each 12-month period commencing on April 30 and ending on
April 29, the 30-day period commencing on March 31 and terminating on April 29
if a Clean-Down Period has not commenced prior to March 31 during such 12-month
period.
26
"Margin Stock" has the meaning specified in Regulation U of the Board
of Governors of the Federal Reserve System and any successor regulations
thereto, as in effect from time to time.
"Marvel" means Marvel Entertainment Group, Inc., a Delaware
corporation.
"Marvel Inclusion Date" means the date on which Mafco or any of its
Affiliates acquires the New Marvel Shares.
"Marvel Tax Agreements" means (i) the Tax Sharing Agreement dated as
of April 22, 1993 between Mafco and Marvel Holdings Inc., (ii) the Tax Sharing
Agreement dated as of October 20, 1993 between Mafco and Marvel (Parent)
Holdings Inc. and (iii) the Amended and Restated Tax Sharing Agreement dated as
of January 1, 1994 among Mafco, Marvel III Holdings Inc., Marvel and certain
Subsidiaries of Marvel.
"Material Adverse Change" means, with respect to any Person, a
material adverse change in the condition (financial or otherwise), operations,
assets, business or prospects of such Person and its Subsidiaries, taken as a
whole.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect upon (a) the condition (financial or otherwise),
operations, assets, business or prospects of such Person and its Subsidiaries,
taken as a whole, or (b) the ability of a Loan Party to perform its obligations
under any Loan Document, or (c) the rights and remedies of the Administrative
Agent, the Collateral Agent or any Lender Party under any Loan Document.
"MCG" means Mafco Consolidated Group Inc., a Delaware corporation.
"MCG Guaranty" means the MCG Guaranty to be made, on the MCG Inclusion
Date, by MCG in favor of the Lender Parties, the Term Credit Agreement Lenders,
the Agents, the Term Agents and the Collateral Agent, in form and substance
satisfactory to the Mafco Finance Required Lenders, as such guaranty may be
amended or otherwise modified from time to time in accordance with its terms.
"MCG Inclusion Date" means the date on which (x) C&F Guarantor owns
all of the capital stock of MCG and (y) the Administrative Agent and the Term
Administrative Agent deliver a notice to the Borrower that the Administrative
Agent, the Term Administrative Agent or the Collateral Agent, as the case may
be, shall have received, in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender Party (or the
requirement that such document be delivered shall have been duly waived):
27
(i) certified copies of the resolutions of the board of directors of
MCG approving the MCG Guaranty and the MCG Pledge Agreement, and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to the MCG Guaranty and the MCG Pledge
Agreement;
(ii) a certificate of the Secretary or an Assistant Secretary of MCG
certifying the names and true signatures of the officers of MCG authorized
to sign the MCG Guaranty and the MCG Pledge Agreement;
(iii) a copy of a certificate of the Secretary of State of the state
of incorporation of each of MCG, Consolidated Cigar Holdings and PCT, dated
reasonably near the MCG Inclusion Date, listing the charter of such Person
and each amendment thereto on file in his office and certifying that (A)
such amendments are the only amendments to such Person's charter on file in
his office, (B) such Person has paid all franchise taxes to the date of
such certificate and (C) such Person is duly incorporated or organized and
in good standing under the laws of such state;
(iv) (A) a certificate of MCG signed on behalf of MCG by its President
or a Vice President and its Secretary or any Assistant Secretary, dated as
of the MCG Inclusion Date (the statements made in such certificate shall be
true on and as of the MCG Inclusion Date), certifying as to (1) the absence
of any amendments to the charter of such Person since the date of the
Secretary of State's certificate referred to in clause (iii) above, (2) the
trueness and correctness of the bylaws of such Person attached to such
certificate, (3) the due incorporation and good standing of such Person as
a corporation under the laws of the relevant state of incorporation, and
the absence of any proceeding for the dissolution or liquidation of such
Person, (4) the truth in all material respects of the representations and
warranties made by such Person contained in the MCG Guaranty and the MCG
Pledge Agreement as though made on and as of the MCG Inclusion Date and (5)
the absence of any event occurring and continuing, or resulting from the
MCG Inclusion Date, that constitutes a Default and (B) a certificate of MCG
signed on behalf of MCG by its President or a Vice President and its
Secretary or any Assistant Secretary, dated as of the MCG Inclusion Date
(the statements made in such certificate shall be true on and as of the MCG
Inclusion Date), certifying as to (1) the absence of any amendments to the
charter of each of Consolidated Cigar Holdings and PCT since the date of
the Secretary of State's Certificate referred to in clause (iii) above, (2)
the trueness and correctness of the bylaws of each of Consolidated Cigar
Holdings and PCT attached to such certificate and (3) the due incorporation
and good standing of each of Consolidated Cigar Holdings and PCT as a
corporation organized under the laws of the State of Delaware, and the
absence of any proceeding for the dissolution or liquidation of either
Consolidated Cigar Holdings or PCT;
28
(v) the MCG Guaranty in form and substance satisfactory to the Mafco
Finance Required Lenders, duly executed by MCG;
(vi) the MCG Pledge Agreement in substantially the form of the Second
Xxxxxxx Pledge Agreement and otherwise reasonably satisfactory to the
Administrative Agent, duly executed by MCG, together with (1) certificates
representing the Pledged Shares referred to in the MCG Pledge Agreement
accompanied by undated stock powers executed in blank, (2) acknowledgment
copies or stamped receipt copies of financing statements, duly filed on or
before such date under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable in order to
perfect the Liens created by the MCG Pledge Agreement, covering the
Collateral described in the MCG Pledge Agreement, and (3) completed
requests for information, dated on or before such date, listing the
financing statements referred to in clause (2) above and all other
effective financing statements filed in the jurisdictions referred to in
clause (2) above that name MCG, as debtor, together with copies of such
other financing statements;
(vii) certified copies of (A) a voting trust agreement among C&F
Guarantor, MCG, the Collateral Agent and The Bank of New York, as voting
trustee, in substantially the form of the voting trust agreements delivered
pursuant to Section 3.01(h)(xiii)(A) of the Existing Credit Agreement and
(B) the charter of MCG, the terms and conditions of which shall be
substantially similar to those contained in the charter of Xxxxxxx
Guarantor; and
(viii) favorable opinions of counsel to Mafco reasonably satisfactory
to the Lenders, in form and substance reasonably satisfactory to the
Lenders.
"MCG Pledge Agreement" means the Pledge Agreement to be made, on the
MCG Inclusion Date, by MCG to the Collateral Agent, in substantially the form
of the Second Xxxxxxx Pledge Agreement and otherwise reasonably satisfactory to
the Administrative Agent, as such agreement may be amended or otherwise
modified from time to time in accordance with its terms.
"MCG Tax Agreement" means the Tax Sharing Agreement dated as of June
15, 1995 among Mafco, MCG and Subsidiaries of MCG party thereto.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, which is subject to Title IV of ERISA,
and to which such Person or any of its ERISA Affiliates is making or accruing
an obligation to make
29
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, which is subject to Title IV of
ERISA, and (a) that is maintained for employees of such Person or any of its
ERISA Affiliates and at least one Person other than such Person and its ERISA
Affiliates or (b) that was so maintained and in respect of which such Person or
any of its ERISA Affiliates could have liability under Section 4064 or 4069 of
ERISA in the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset or the sale or issuance by any Person of any
Debt or capital stock, any securities convertible into or exchangeable for
capital stock or any warrants, rights or options to acquire capital stock, the
sum of (i) the aggregate amount of cash received from time to time by or on
behalf of such Person in connection with such transaction plus (ii) the
aggregate principal amount of any Debt listed on Schedule VII hereto that is
assumed, directly or indirectly, by any Person (other than Mafco or an
Affiliate of Mafco) in connection with, or as a result of, such transaction,
after deducting therefrom only (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees and expenses, finder's
fees, accountants' fees and expenses and other similar fees, expenses and
commissions, (b) the amount of taxes payable or estimated in good faith to be
payable within 12 months following the date of the consummation of such
transaction in connection with or as a result of such transaction and (c) the
amount of any Debt that, by the terms of such Debt, is required to be repaid
upon such disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are payable to a Person that is not an Affiliate (other
than such amounts that are payable by the Borrower and its Subsidiaries to an
Affiliate pursuant to a Related Document) and are properly attributable to such
transaction or to the asset that is the subject thereof.
30
"Net Equity Value" means, for any day of determination for any
Designated Person:
(i) with respect to Xxxxxxx Guarantor, an amount (not less than $0)
equal to the excess of (A) the product of the number of shares of common
stock of Xxxxxxx owned directly or indirectly by Xxxxxxx Guarantor times
the average closing price during the Calculation Period relating to such
day of determination of such common stock on the New York Stock Exchange
over (B) the Defeased Debt Amount of Xxxxxxx Guarantor;
(ii) with respect to Mafco, an amount (not less than $0) equal to the
product of the number of News Corp. Preferred ADRs pledged in favor of the
Collateral Agent under the Collateral Documents times the average closing
price of the News Corp. Preferred ADRs during the Calculation Period
relating to such day of determination for such News Corp. Preferred ADRs on
either the New York Stock Exchange or the Nasdaq National Market System;
(iii) with respect to C&F Guarantor, (x) prior to the MCG Inclusion
Date, an amount (not less than $0) equal to the product of the number of
shares of common stock of MCG owned directly or indirectly by C&F Guarantor
times the average closing price during the Calculation Period relating to
such day of determination of such common stock on the New York Stock
Exchange and (y) on and after the MCG Inclusion Date, an amount (not less
than $0) equal to the product of the number of shares of common stock of
Consolidated Cigar Holdings owned directly or indirectly by C&F Guarantor
times the average closing price during the Calculation Period relating to
such day of determination of such common stock on the New York Stock
Exchange;
31
(iv) with respect to Revlon Worldwide Parent, (x) prior to the Revlon
Defeasance Date, an amount (not less than $0) equal to the excess of (1)
the product of the number of shares of common stock of Revlon owned
directly or indirectly by Revlon Worldwide Parent times the average closing
price during the Calculation Period relating to such day of determination
of such common stock on the New York Stock Exchange over (B) the Defeased
Debt Amount of Revlon Worldwide Parent and (y) on and after the Revlon
Defeasance Date, an amount (not less than $0) equal to the sum of (1) the
product of the number of shares of common stock of Revlon pledged in favor
of the Collateral Agent under the Collateral Documents times the average
closing price during the Calculation Period relating to such day of
determination of such common stock on the New York Stock Exchange plus (2)
an amount equal to the excess of (I) the product of the number of shares of
common stock of Revlon pledged in favor of the holders of the Revlon
Worldwide Parent Debt times the average closing price during the
Calculation Period relating to such day of determination of such common
stock on the New York Stock Exchange over (II) the Defeased Debt Amount of
Revlon Worldwide Parent;
(v) with respect to MCG (on and after the PCT Inclusion Date), an
amount (not less than $0) equal to the product of the number of shares of
common stock of PCT owned directly or indirectly by MCG times the average
closing price during the Calculation Period relating to such day of
determination of such common stock on the New York Stock Exchange; and
(vi) with respect to the Bank, an amount equal to $500,000,000.
"Net Residual Value" means, for any day of determination, an amount
equal to the aggregate Net Equity Value of the Designated Persons on such day.
"New Xxxxxxx" means New Xxxxxxx Holdings Inc., a Kansas corporation.
"New Xxxxxxx Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by New Xxxxxxx and The Bank of New York, in its capacity as voting trustee, to
the Collateral Agent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
"New Marvel Shares" means all shares of capital stock of Marvel issued
after the date hereof and received by Xxxxxxx or any of its Affiliates.
"New World" means New World Communications Group Incorporated, a
Delaware corporation.
32
"New World Guarantor" means NWCG (Parent) Holdings Corporation, a
Delaware corporation.
"New World Guaranty" means the Fifth Amended and Restated New World
Guaranty dated as of March 20, 1997 made by New World Guarantor in favor of the
Lender Parties, the Term Credit Agreement Lenders, the Agents, the Term Agents
and the Collateral Agent, as such guaranty may be amended or otherwise modified
from time to time in accordance with its terms.
"New World Pledge Agreement" means the Third Amended and Restated
Pledge and Assignment Agreement dated as of March 20, 1997 made by New World
Guarantor to the Collateral Agent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"Newco" means DROF Holdings Inc., a Delaware corporation.
"Newco Loan" means the loan by First Gibraltar to Newco in an
aggregate principal amount of $150,000,000 for the sole purpose of purchasing
the FN Holdings Preferred Stock.
"News Corp." means The News Corporation Limited, a South Australia
corporation.
"News Corp. Contract" means the Stock Purchase Agreement dated as of
September 24, 1996 among New World Guarantor, News Corp. and Fox Television
Stations, Inc., as such agreement may be amended, modified or supplemented in
accordance with the terms of the Loan Documents.
"News Corp. Preferred ADRs" means the American Depositary Shares of
News Corp., each of which represents four fully paid and nonassessable
Preferred Limited Voting Ordinary Shares, of A $.50 each of News Corp., and the
related warrants received by New World Guarantor pursuant to the terms of the
News Corp. Contract.
"Notes" means the Revolving Credit Notes.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Termination" has the meaning specified in Section 2.01(b).
33
"NWCG Holdings" means NWCG Holdings Corporation, a Delaware
corporation.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(e). Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other
amounts payable by any Loan Party under any Loan Document and (b) the
obligation to reimburse any amount in respect of any of the foregoing that any
Lender Party, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.
"Original Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Original Lenders" has the meaning specified in the Preliminary
Statements.
"Original Transaction" has the meaning specified in the Preliminary
Statements.
"Other Taxes" has the meaning specified in Section 2.13(b).
"Payment Obligations" shall mean all principal, interest, fees, Letter
of Credit commissions, charges, expenses, attorneys' fees and expenses,
indemnities and any other amounts payable by the Loan Parties under the Loan
Documents.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"PCT" means Power Control Technologies Inc., a Delaware corporation.
"PCT Inclusion Date" means the later of (x) the MCG Inclusion Date and
(y) the date on which the common stock of PCT held directly or indirectly by
Mafco shall be pledged in favor of the Collateral Agent.
34
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledge Agreements" means the C&F Pledge Agreement, the Cigar Pledge
Agreement, the Xxxxxxx Pledge Agreement, the Xxxxxxx Worldwide Pledge
Agreement, the Flavors Pledge Agreement, the Four Star Pledge Agreement, the
Mafco Pledge Agreement, the M&F Pledge Agreement, the New Xxxxxxx Pledge
Agreement, the New World Pledge Agreement, the Second Xxxxxxx Pledge Agreement,
the Revlon Pledge Agreement, the Revlon Worldwide Holdings Pledge Agreement,
the Revlon Worldwide Parent Pledge Agreement and, on and after the MCG
Inclusion Date, the MCG Pledge Agreement.
"Pro Rata Share" of any amount means, with respect to any Lender at
any time, the product of such amount times a fraction the numerator of which is
the amount of such Lender's Revolving Credit Commitment at such time and the
denominator of which is the Revolving Credit Facility at such time.
"Register" has the meaning specified in Section 8.07(c).
"Related Documents" means the Xxxxxxx Tax Agreements, the FN Tax
Agreement, the MCG Tax Agreement, the Revlon Tax Agreements (so long as Revlon
continues to be a member of the affiliated group (within the meaning of Section
1504(a)(1) of the Code) of which Mafco is the common parent), the Consolidated
Cigar Tax Agreement (so long as Consolidated Cigar Holdings continues to be a
member of the affiliated group (within the meaning of Section 1504(a)(1) of the
Code) of which Mafco is the common parent) and the Marvel Tax Agreements (so
long as Marvel continues to be a member of the affiliated group (within the
meaning of Section 1504(a)(1) of the Code) of which Mafco is the common
parent).
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal amount
of the Advances outstanding at such time, (b) the aggregate Available Amount of
all Letters of Credit outstanding at such time and (c) the aggregate Unused
Revolving Credit Commitments at such time (provided that, for purposes hereof,
neither the Borrower, nor any of its Affiliates, if a Lender, shall be included
in (x) the Lenders holding such amount of the Advances or the Available Amount
of all Letters of Credit or having such amount of the Unused Revolving Credit
Commitments or (y) determining the aggregate unpaid principal amount of the
Advances or the total Unused Revolving Credit Commitments; provided, however,
that if any Lender shall be a Defaulting Lender at such time, there shall be
excluded from the
35
determination of Required Lenders at such time (i) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (ii) such Lender's Pro Rata Share of the aggregate
Available Amount of all Letters of Credit issued by such Lender as of such time
and (iii) the Unused Revolving Credit Commitment of such Lender at such time.
For purposes of this definition, the aggregate principal amount of Letter of
Credit Advances owing to the Issuing Bank and the Available Amount of each
Letter of Credit shall be considered to be owed to the Lenders ratably in
accordance with their respective Revolving Credit Commitments.
"Revlon" means Revlon, Inc., a Delaware corporation.
"Revlon Defeasance Date" means the later of (x) the date on which
certain obligations under the Revlon Worldwide Indenture are terminated
pursuant to Section 8.01(b)(ii) thereof and (y) the date on which the shares of
Revlon not required to secure the Revlon Worldwide Parent Debt are pledged in
favor of the Collateral Agent.
"Revlon Entities" means Revlon Guarantor, Revlon Worldwide Holdings,
Revlon Worldwide Parent, Revlon Worldwide and National Health Care Group, Inc.
"Revlon Guarantor" means Revlon Guarantor Corp., a Delaware
corporation.
"Revlon Guaranty" means the Revlon Guaranty dated as of March 20, 1997
made by Revlon Guarantor in favor of the Lender Parties, the Term Credit
Agreement Lenders, the Agents, the Term Agents and the Collateral Agent, as
such guaranty may be amended or otherwise modified from time to time in
accordance with its terms.
"Revlon Holdings Statement" shall mean a statement that the sum of the
fair market value of Revlon Worldwide (or any successor thereto) plus the fair
market value of National Health Care Group, Inc. constitutes at least 95% of
the fair market value of Revlon Holdings Inc.
"Revlon Pledge Agreement" means the Pledge Agreement dated as of March
20, 1997 made by Revlon Guarantor to the Collateral Agent, as such agreement
may be amended or otherwise modified from time to time in accordance with its
terms.
"Revlon Tax Agreements" shall have the meaning specified in the Revlon
Guaranty.
"Revlon Worldwide" means Revlon Worldwide Corporation, a Delaware
corporation.
36
"Revlon Worldwide Bonds" means theSenior Secured Discount Notes due
1998 and the Series B Senior Secured Discount Notes due 1998 issued by Revlon
Worldwide, in each case pursuant to the Revlon Worldwide Indenture.
"Revlon Worldwide Holdings" means Revlon Worldwide Holdings Inc., a
Delaware corporation.
"Revlon Worldwide Holdings Guaranty" means the Guaranty dated as of
March 20, 1997 made by Revlon Worldwide Holdings in favor of the Lender
Parties, the Term Credit Agreement Lenders, the Agents, the Term Agents and the
Collateral Agent, as such guaranty may be amended or otherwise modified from
time to time in accordance with its terms.
"Revlon Worldwide Holdings Pledge Agreement" means the Pledge
Agreement dated as of March 20, 1997 made by Revlon Worldwide Holdings to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Revlon Worldwide Indenture" means the Indenture dated as of March 15,
1993 made by Revlon Worldwide in favor of The First National Bank of Boston, as
trustee.
"Revlon Worldwide Parent" means Revlon Worldwide (Parent) Corporation,
a Delaware corporation.
"Revlon Worldwide Parent Debt" means the Senior Secured Discount Notes
due 2001 issued by Revlon Worldwide Parent.
"Revlon Worldwide Parent Debt Document" means the Indenture dated as
of March 1, 1997 between Revlon Worldwide Parent and The Bank of New York, as
trustee, in connection with the Revlon Worldwide Parent Debt and any other
agreement or instrument which governs the terms of the Revlon Worldwide Parent
Debt.
"Revlon Worldwide Parent Pledge Agreement" means the Non-Recourse
Guaranty and Pledge Agreement dated as of March 20, 1997 made by Revlon
Worldwide Parent to the Collateral Agent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"Revolving Credit Advance" has the meaning specified in Section
2.01(a).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the Lenders.
37
"Revolving Credit Commitment" means, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Revolving Credit Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 8.07(c) as
such Lender's "Revolving Credit Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate amount
of the Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of Exhibit A
hereto, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender.
"Second Xxxxxxx Pledge Agreement" means the Second Amended and
Restated Non-Recourse Guaranty and Pledge Agreement dated as of December 16,
1996 made by Xxxxxxx and The Bank of New York, in its capacity as voting
trustee, to the Collateral Agent, as such agreement may be amended or otherwise
modified from time to time in accordance with its terms.
"Second Credit Agreement" has the meaning specified in the Preliminary
Statements.
"Second Lenders" has the meaning specified in the Preliminary
Statements.
"Second Mafco Collateral Account" has the meaning specified in the
Mafco Security Agreement.
"Second New FN Holdings Debt" means the 10-5/8% Senior Subordinated
Notes due 2003 issued by FN Escrow in an aggregate principal amount equal to
$575,000,000, which will be assumed by FN Holdings upon the merger of FN Escrow
with and into FN Holdings.
"Second New FN Holdings Debt Document" means the Indenture dated as of
September 19, 1996 between FN Escrow and The Bank of New York, as trustee, in
connection with the Second New FN Holdings Debt and any other agreement or
instrument which governs the terms of the Second New FN Holdings Debt.
38
"Security Agreements" means the Borrower Security Agreement, the
Borrower Parent Security Agreement and the Mafco Security Agreement.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which is subject to Title IV of ERISA,
and (a) that is maintained for employees of such Person or any of its ERISA
Affiliates and no Person other than such Person and its ERISA Affiliates or (b)
in respect of which such Person or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has been or were
to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Specified Holding Company Debt" means the 13% Subordinated Debentures
due March 1, 1999 issued by M&F pursuant to the Indenture dated as of March 1,
0000 xxxxxxx X&X xxx xxx Xxxxxx Xxxxxx Trust Company of New York and the 10%
Senior Subordinated Debentures due 1999 issued by Xxxxxxx pursuant to the
Indenture dated as of June 4, 1990 between Xxxxxxx and First Trust of
California, National Association (as successor trustee to Security Pacific
National Trust Company (New York)).
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"Stockholders Agreement" means the Stockholders Agreement dated as of
October 3, 1994, among FN Parent, FN Holdings and Xxxxxx X. Xxxx, as such
agreement may be amended, modified or otherwise supplemented from time to time
with the consent of the Required Lenders.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the Voting
Stock of such corporation, (b) the interest in the capital or profits of such
partnership or joint venture or
39
(c) the beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
of its other Subsidiaries or by one or more of such Person's other
Subsidiaries; provided, however, that for all purposes of the Loan Documents,
Toy Biz, Inc. shall not be a Subsidiary of any of the Loan Parties.
"Supermajority Lenders" means at any time Lenders owed or holding at
least 67% of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time, (b) the aggregate Available Amount of all Letters of
Credit outstanding at such time and (c) the aggregate Unused Revolving Credit
Commitments at such time (provided that, for purposes hereof, neither the
Borrower nor any of its Affiliates, if a Lender, shall be included in (x) the
Lenders holding such amount of the Advances or the Available Amount of all
Letters of Credit or having such amount of the Unused Revolving Credit
Commitments or (y) determining the aggregate unpaid principal amount of the
Advances or the total Unused Revolving Credit Commitments); provided, however,
that if any Lender shall be a Defaulting Lender at such time, there shall be
excluded from the determination of Supermajority Lenders at such time (i) the
aggregate principal amount of the Advances owing to such Lender (in its
capacity as a Lender) and outstanding at such time, (ii) such Lender's Pro Rata
Share of the aggregate Available Amount of all Letters of Credit issued by such
Lender at such time and (iii) the aggregate Unused Revolving Credit Commitment
of such Lender at such time. For purposes of this definition, the aggregate
principal amount of Letter of Credit Advances owing to the Issuing Bank and the
Available Amount of each Letter of Credit shall be considered to be owed to the
Lenders ratably in accordance with their respective Revolving Credit
Commitments.
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Tax Certificate" has the meaning specified in Section 5.01(j)(xiii).
"Taxes" has the meaning specified in Section 2.13(a).
"Term Administrative Agent" has the meaning specified in the
Preliminary Statements.
"Term Agents" has the meaning specified in the Preliminary Statements.
"Term Credit Agreement" has the meaning specified in the Preliminary
Statements.
"Term Credit Agreement Lenders" has the meaning specified in the
Preliminary Statement.
40
"Term Credit Agreement Termination Date" means the date on which all
"Payment Obligations" (as defined in the Term Credit Agreement) shall have been
"Fully Satisfied" (as defined in the Term Credit Agreement).
"Term Documentation Agent" has the meaning specified in the
Preliminary Statements.
"Term Facility" means the "Term Facility" as defined in the Term
Credit Agreement.
"Term Syndication Agent" has the meaning specified in the Preliminary
Statements.
"Termination Date" means the earlier of (a) March 20, 1999 or (b) the
date of termination in whole of the Letter of Credit Commitments and the
Revolving Credit Commitments pursuant to Section 2.05 or 6.01.
"Third Credit Agreement" has the meaning specified in the Preliminary
Statements.
"Third Lenders" has the meaning specified in the Preliminary
Statements.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of inventory
to the Borrower or any of its Subsidiaries to effect payment for such
Inventory.
"Treasury Regulations" means the temporary and final regulations
promulgated under the Internal Revenue Code of 1986, as amended from time to
time.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unfunded Pension Liabilities" with respect to any Plan means the
excess, if any, of its accumulated benefit obligation ("ABO"), as determined in
accordance with Statement of Financial Accounting Standards No. 87 or any
successor thereto ("FAS 87") over the fair market value of its assets (as of
such date) (provided that in determining the ABO for this purpose, the
interest, mortality and other relevant actuarial assumptions used to fund such
Plan as of its most recent actuarial valuation) shall be used instead of the
interest, mortality and other relevant actuarial assumptions that would
otherwise be prescribed by FAS 87.
41
"Unused Revolving Credit Commitment" means, with respect to any Lender
at any time, (a) such Lender's Revolving Credit Commitment at such time minus
(b) the sum of (i) the aggregate principal amount of all Revolving Credit
Advances and Letter of Credit Advances made by such Lender (in its capacity as
a Lender) pursuant to Sections 2.02(a) and 2.03(c), respectively, and
outstanding at such time, plus (ii) such Lender's Pro Rata Share of (A) the
aggregate Available Amount of all Letters of Credit outstanding at such time,
(B) the aggregate principal amount of all Letter of Credit Advances made by the
Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and (C)
the ADR Reserve Amount at such time; provided, however, that, for purposes of
calculating the commitment fee payable pursuant to Section 2.09(a), the ADR
Reserve Amount shall always be deemed to be $0.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Part IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
42
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Revolving Credit Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "Revolving Credit Advance") to the Borrower from time to
time on any Business Day during the period from the date hereof until the
Termination Date in an aggregate amount not to exceed at any time outstanding
such Lender's Revolving Credit Commitment on such Business Day; provided,
however, that on each day, after giving effect to any Revolving Credit
Borrowing on such day, the sum of (i) the aggregate amount of the Revolving
Credit Advances outstanding on such day plus (ii) the aggregate amount of the
Letter of Credit Advances outstanding on such day plus (iii) the aggregate
Available Amount of all Letters of Credit outstanding on such day plus (iv) the
ADR Reserve Amount on such day, shall not exceed an amount equal to the
aggregate Revolving Credit Commitments of the Lenders on such day; provided
further that, notwithstanding anything to the contrary herein, the Borrower
may, upon delivery to the Administrative Agent of a certificate from an officer
of Mafco certifying that the proceeds from such Revolving Credit Borrowing
shall be used solely to finance a transaction in respect of which the amounts
on deposit in the ADR Collateral Account are permitted to be used in accordance
with the provisions of Section 7(h) of the Mafco Security Agreement, borrow
amounts that have been reserved in accordance with the provisions of this
Section 2.01 and the definition of "ADR Reserve Amount". Each Revolving Credit
Borrowing shall be in an aggregate amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (other than a Revolving
Credit Borrowing the proceeds of which shall be used solely to repay or prepay
in full outstanding Letter of Credit Advances) and shall consist of Revolving
Credit Advances made on the same day by the Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Lender's Unused
Revolving Credit Commitment in effect from time to time, the Borrower may
borrow under this Section 2.01(a), prepay pursuant to Section 2.06(a) and
reborrow under this Section 2.01(a).
(b) Letters of Credit. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (the "Letters of
Credit") for the account of the Borrower from time to time on any Business Day
during the period from the date hereof until 60 days before the Termination
Date (i) in an aggregate Available Amount for all Letters of Credit not to
exceed at any time the Issuing Bank's Letter of Credit Commitment at such time
and (ii) in an Available Amount for each such Letter of Credit not to exceed
the least of (x) the Letter of Credit Facility at such time and (y) the Unused
Revolving Credit Commitments of the Lenders at such time. No Letter of Credit
shall have an expiration date (including all
43
rights of the Borrower or the beneficiary to require renewal) later than the
earlier of 60 days before the Termination Date and (A) in the case of a Standby
Letter of Credit, one year after the date of issuance thereof, but may by its
terms be automatically renewable annually unless the Issuing Bank has notified
the Borrower (with a copy to the Administrative Agent) on or after the 60th
Business Day prior to the first anniversary (or any subsequent anniversary) of
the date of issuance thereof but in any event at least 30 Business Days prior
to the date of automatic renewal of its election not to renew such Standby
Letter of Credit (a "Notice of Termination") and (B) in the case of a Trade
Letter of Credit, 60 days after the date of issuance thereof; provided,
however, that the terms of each Standby Letter of Credit that is automatically
renewable annually shall (x) require the Issuing Bank to give the beneficiary
named in such Standby Letter of Credit notice of any Notice of Termination, (y)
permit such beneficiary, upon receipt of such notice, to draw under such
Standby Letter of Credit prior to the date such Standby Letter of Credit
otherwise would have been automatically renewed and (z) not permit the
expiration date (after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date later than 60 days before the
Termination Date. If a Notice of Termination is given by the Issuing Bank
pursuant to the immediately preceding sentence, such Standby Letter of Credit
shall expire on the date on which it otherwise would have been automatically
renewed. All "Letters of Credit" under the Existing Credit Agreement that are
outstanding on the date hereof shall be deemed, for all purposes of the Loan
Documents and the "Loan Documents" under the Term Credit Agreement, to be
Letters of Credit hereunder. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(b), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to Section
2.03(b) and request the issuance of additional Letters of Credit under this
Section 2.01(b).
(c) Clean-Down. Notwithstanding the provisions of Sections 2.01(a) and
2.01(b), no Revolving Credit Borrowings may be made under Section 2.01(a)
during any Clean-Down Period.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.16, each Borrowing shall be made on notice given not later than 11:00
A.M. (New York City time) on the first Business Day prior to the date of a
proposed Borrowing consisting of Base Rate Advances or the third Business Day
prior to the date of a proposed Borrowing consisting of Eurodollar Rate
Advances, by the Borrower to the Administrative Agent, which shall give to each
Lender prompt notice thereof by telecopier, telex or cable. Each such notice of
a Borrowing (a "Notice of Borrowing") shall be by telecopier, telex or cable,
and, with respect to a Notice of Borrowing by telex or cable, confirmed
immediately thereafter in writing, in substantially the form of Exhibit C
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing
and (iv) Interest Period for each Eurodollar Rate Advance included in such
44
Borrowing. In the case of a proposed Borrowing comprised of Eurodollar Rate
Advances, the Administrative Agent shall promptly notify the Borrower and each
Lender of the applicable interest rate under Section 2.07(a)(ii). Each Lender
shall, before 12:00 noon (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing in accordance with the
respective Revolving Credit Commitments of such Lender and the other Lenders.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available by crediting the Borrower's Account.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part
of such Borrowing when such Advance, as a result of such failure, is not made
on such date.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume, or at its option request
confirmation from such Lender, that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption or confirmation (as the case may be), make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available
to the Administrative Agent, such Lender and the Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the cost (expressed as a rate
per annum) to the Administrative Agent of funding such Lender's ratable
portion; provided, however, that, upon the request of such Lender, the
Administrative Agent shall provide such Lender with a certificate as to the
calculation of such amount. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
45
(d) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
(e) The Borrower may not request a Borrowing comprised of Eurodollar
Rate Advances or, pursuant to Section 2.11, Convert Base Rate Advances into
Eurodollar Rate Advances or select a new Interest Period for existing
Eurodollar Rate Advances if, after the making or Conversion of such Advances or
the selection of such Interest Period, the number of outstanding Borrowings
comprised of Eurodollar Rate Advances having different Interest Periods
(whether of different duration or commencing on different dates) would exceed 6.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the seventh
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Lender prompt notice thereof by telex or
telecopier. Each such notice of issuance of a Letter of Credit (a "Notice of
Issuance") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (A) date of such issuance (which
shall be a Business Day), (B) Available Amount of such Letter of Credit, (C)
expiration date of such Letter of Credit, (D) name and address of the
beneficiary of such Letter of Credit and (E) form of such Letter of Credit, and
shall be accompanied by such application and agreement for letter of credit as
such Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If the requested
form of such Letter of Credit is acceptable to the Issuing Bank in its sole
discretion, the Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to
the Borrower at its office referred to in Section 8.02 or as otherwise agreed
with the Borrower in connection with such issuance. In the event and to the
extent that the provisions of any Letter of Credit Agreement shall conflict
with this Agreement, the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish (A) to
the Administrative Agent and the Borrower on the first Business Day of each
week during which one or more Letters of Credit have been issued or drawn upon,
a written report summarizing issuance and expiration dates of Letters of Credit
issued during the previous week and drawings during such week under all Letters
of Credit issued, (B) to each Lender and the Borrower on the first Business Day
of each month a written report summarizing issuance and expiration dates of
Letters of Credit issued during the preceding month and drawings during such
month under all Letters of Credit and (C) to the Administrative Agent, each
Lender and the Borrower on the first Business Day of each calendar quarter a
written report setting forth
46
the average daily aggregate Available Amount during the preceding calendar
quarter of all Letters of Credit.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance, in
the amount of such draft, which shall be a Base Rate Advance until the third
Business Day after the date which the Borrower shall have delivered a L/C
Certificate in respect of such Letter of Credit Advance which specified that
such Advance shall be a Eurodollar Advance. Upon written demand by the Issuing
Bank, with a copy of such demand to the Administrative Agent, each Lender shall
purchase from the Issuing Bank, and the Issuing Bank shall sell and assign to
each such Lender, such Lender's Pro Rata Share of such outstanding Letter of
Credit Advance as of the date of such purchase, by making available for the
account of its Applicable Lending Office to the Administrative Agent for the
account of the Issuing Bank, by deposit to the Administrative Agent's Account,
in same day funds, an amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by such Lender.
Promptly after receipt thereof, the Administrative Agent shall transfer such
funds to the Issuing Bank. The Borrower hereby agrees to each such sale and
assignment. Each Lender irrevocably and unconditionally agrees to purchase its
Pro Rata Share of an outstanding Letter of Credit Advance on (i) the Business
Day on which demand therefor is made by the Issuing Bank, provided notice of
such demand is given not later than 11:00 A.M. (New York City time) on such
Business Day or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by the
Issuing Bank to any other Lender of a portion of a Letter of Credit Advance,
the Issuing Bank represents and warrants to such other Lender that the Issuing
Bank is the legal and beneficial owner of such interest being assigned by it,
free and clear of any liens, but makes no other representation or warranty and
assumes no responsibility with respect to such Letter of Credit Advance, the
Loan Documents or any Loan Party. If and to the extent that any Lender shall
not have so made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Lender agrees to pay to the Administrative Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Issuing Bank until the date such amount is paid
to the Administrative Agent, at the Federal Funds Rate for its account or the
account of the Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of the Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by the Issuing Bank shall be reduced by such amount on such
Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c)
47
shall not relieve any other Lender of its obligation hereunder to make its
Letter of Credit Advance on such date, but no Lender shall be responsible for
the failure of any other Lender to make the Letter of Credit Advance to be made
by such other Lender on such date.
SECTION 2.04. Repayment. (a) Revolving Credit Advances. The Borrower
shall repay to the Administrative Agent for the ratable account of the Lenders
on the Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
(b) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and each other Lender
that has made a Letter of Credit Advance on the Termination Date the
outstanding principal amount of each Letter of Credit Advance made by each of
them; provided, however, that if the Borrower fails to deliver a L/C
Certificate in respect of such Letter of Credit Advance on the Business Day
following the date on which the Issuing Bank paid a draft drawn under a Letter
of Credit which resulted in such Letter of Credit Advance, the Borrower shall
repay such Letter of Credit Advance on demand.
(ii) The Obligations of the Borrower under this Agreement, any Letter
of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C Related Documents");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
48
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or other
collateral, or any release or amendment or waiver of or consent to
departure from any Guaranty or any other guarantee, for all or any of the
Obligations of the Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower shall have the right, upon at least three Business Days'
prior notice to the Administrative Agent, to terminate in whole or reduce
ratably in part the unused portion of the Letter of Credit Facility and the
Unused Revolving Credit Commitments; provided that each partial reduction (i)
shall be in an aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and (ii) shall be made ratably among the Lenders
in accordance with their Commitments.
(b) Mandatory. (i) On any date (A) on which a cash equity contribution
is deposited in the Borrower Collateral Account as a result of a loan made by
First Gibraltar to the Borrower Parent pursuant to the terms of the First
Gibraltar Loan Agreement or on which a deposit of amounts paid under or in
connection with any Related Documents is made to the Mafco Collateral Account
or on which a deposit of amounts constituting Net Cash Proceeds from an Asset
Sale is made to the Mafco Collateral Account and (B) either (I) a Default has
occurred and is continuing, (II) the Borrower fails to deliver a Look-Forward
Certificate or a Deposit Certificate with respect to such deposit in accordance
with the terms of section 5.01(k) or (III) the Mafco Finance Required Lenders
determine, in their reasonable discretion, within 15 Business Days following
the date of the receipt of the Look-Forward Certificate or within 2 Business
Days following the date of the receipt of Deposit Certificate, as the case may
be, referred to in clause (B)(II), that the pro forma amounts available to be
loaned by First Gibraltar
49
to Borrower Parent, together with amounts received by Mafco pursuant to or in
connection with any Related Document, will be less than $15 million in any
calendar quarter (of which at least $10 million shall be from amounts available
to be loaned by First Gibraltar to the Borrower Parent) or will not be
sufficient to pay interest on the Advances then outstanding and interest on the
Debt then outstanding under the Term Credit Agreement, the Revolving Credit
Facility shall be automatically and permanently reduced by an amount equal to
the excess of (x) the amount of such cash equity contribution or the amount on
deposit in the Mafco Collateral Account, as the case may be, plus any interest
on Collateral Investments made with such contribution or deposit over (y) the
sum of the amount of interest and fees then due and payable in respect of the
Facilities plus the amount of expenses of the Administrative Agent (including
the reasonable fees and expenses of counsel to the Administrative Agent) then
due and payable plus the aggregate amount paid (including the aggregate amount
of interest, fees and expenses then due and payable in respect of the Term
Facility) from such cash equity contribution or such amount on deposit in the
Mafco Collateral Account, as the case may be, or from any interest on
Collateral Investments made with such contribution or deposit pursuant to the
terms of Section 2.05(b)(i) of the Term Credit Agreement. Each such reduction
shall be applied ratably to the Revolving Credit Facility and shall be made
ratably among the Lenders in accordance with their Revolving Credit
Commitments.
(ii) The Revolving Credit Facility shall be automatically and
permanently reduced:
(A) on the date of receipt by any A Company of the Net Cash Proceeds
of issuances, sales or liquidations of any capital stock (including any
securities convertible into or exchangeable for capital stock or any
warrants, rights or options to acquire capital stock) of any A Company
(other than any Net Cash Proceeds in respect of any Asset Sale),
(B) on the date of receipt by any A Company of any dividends, other
distributions or any loans or advances made in respect of the capital stock
of any other A Company (other than FN Holdings and FN Parent) or any
Designated Operating Company (provided that this clause (B) shall not apply
(1) to the dividend made by MCG in accordance with the public announcements
made prior to the date hereof and (2) to the receipt by any A Company of
any dividends, other distributions or any loans or advances made in respect
of all or any portion of the proceeds received by Mafco or any of its
Subsidiaries from any Asset Sale or any sale, lease, transfer or other
disposition specified in clauses (i) through (iv) of the definition of
"Asset Sale"),
(C) on the date of receipt by any A Company of the proceeds of
distributions, dividends or any loans or advances made on account of or as
a result of the issuance, sale or liquidation of any capital stock
(including any securities convertible into or exchangeable for capital
stock or any warrants, rights or options to acquire capital stock but
excluding any Asset Sale) of, or the sale, issuance or incurrence of any
Debt by, any Designated Operating Company, and
50
(D) on the date of receipt by any A Company of the Net Cash Proceeds
from the sale, issuance or incurrence by any A Company of any Debt (other
than any sale, issuance or incurrence by Revlon Holdings Inc. of any Debt
to any of its Subsidiaries),
by an amount equal to the excess of (x) the amount so received (except, in each
case, to the extent (1) required pursuant to the terms of any agreement or
instruments relating to Debt existing on the date hereof or otherwise approved
by the Mafco Finance Required Lenders of any A Company or Designated Operating
Company to prepay or redeem or purchase such Debt or (2) prohibited to be so
applied by the terms of any agreement or instrument relating to Debt existing
on the date hereof or otherwise approved by the Mafco Finance Required Lenders
of any A Company or Designated Operating Company) over (y) the sum of the
amount of interest and fees then due and payable in respect of the Facilities
plus the amount of expenses of the Administrative Agent (including the
reasonable fees and expenses of counsel to the Administrative Agent) then due
and payable plus the aggregate amount paid (including the aggregate amount of
interest, fees and expenses then due and payable in respect of the Term
Facility) from the amounts so received pursuant to the terms of Section
2.05(b)(ii) of the Term Credit Agreement. Each such reduction shall be applied
ratably to the Revolving Credit Facility and shall be made ratably among the
Lenders in accordance with their Revolving Credit Commitments.
(iii) On the date of receipt by Mafco or any of its Subsidiaries
(other than the Bank and its Subsidiaries) of the Net Cash Proceeds from the
sale, transfer or other disposition of (x) all or any portion of the capital
stock of the Bank (other than any issuance by the Bank or any Subsidiary of the
Bank of capital stock) or (y) any asset of the Bank, the Revolving Credit
Facility shall be automatically and permanently reduced by an amount equal to
the excess of (A) such Net Cash Proceeds (other than the portion of such Net
Cash Proceeds required to be paid to the holders of the Class B common stock of
FN Holdings and the holders of the FN Holdings Preferred Stock) over (B) the
sum of the amount of interest and fees then due and payable in respect of the
Facilities plus the amount of expenses of the Administrative Agent (including
the reasonable fees and expenses of counsel to the Administrative Agent) then
due and payable plus the aggregate amount paid (including the aggregate amount
of interest, fees and expenses then due and payable in respect of the Term
Facility) from such Net Cash Proceeds pursuant to the terms of Section
2.05(b)(iii) of the Term Credit Agreement. Each such reduction shall be applied
ratably to the Revolving Credit Facility and shall be made ratably among the
Lenders in accordance with their Revolving Credit Commitments.
(iv) On and after the date on which Mafco and its Subsidiaries have
received Net Cash Proceeds in an amount equal to the Asset Sale Threshold from
Asset Sales, upon any Asset Sale in respect of which Mafco and its Subsidiaries
have received Net Cash Proceeds
51
(which, together with the aggregate amount of Net Cash Proceeds from and after
the Effective Date from Asset Sales, exceeds the Asset Sale Threshold), the
Revolving Credit Facility shall be automatically and permanently reduced by an
amount equal to the excess of (x) the sum of (A) 50% of that portion of the Net
Cash Proceeds (up to $150 million) in excess of the Asset Sale Threshold (after
taking into account the aggregate amount of Net Cash Proceeds from and after
the Effective Date from Asset Sales) from such Asset Sale plus (B) 100% of that
portion of the Net Cash Proceeds from such Asset Sale in excess of the sum of
the Asset Sale Threshold plus $150 million (after taking into account the
aggregate amount of Net Cash Proceeds from and after the Effective Date from
Asset Sales) over (y) the sum of the amount of interest and fees then due and
payable in respect of the Facilities plus the amount of expenses of the
Administrative Agent (including the reasonable fees and expenses of counsel to
the Administrative Agent) then due and payable plus the aggregate amount paid
(including the aggregate amount of interest, fees and expenses then due and
payable in respect of the Term Facility) from such Net Cash Proceeds pursuant
to the terms of Section 2.05(b)(iv) of the Term Credit Agreement. Each such
reduction shall be applied ratably to the Revolving Credit Facility and shall
be made ratably among the Lenders in accordance with their Revolving Credit
Commitments.
(v) On each date that an Event of Default set forth in Section 6.01(a)
shall have occurred and be continuing, the Revolving Credit Facility shall be
automatically and permanently reduced by an amount equal to the excess of (x)
the amount on deposit in the Second Mafco Collateral Account over (y) the sum
of the amount of interest and fees then due and payable in respect of the
Facilities plus the amount of expenses of the Administrative Agent (including
the reasonable fees and expenses of counsel to the Administrative Agent) then
due and payable. Each such reduction shall be applied ratably to the Revolving
Credit Facility and shall be made ratably among the Lenders in accordance with
their Revolving Credit Commitments. Any amounts remaining on deposit in the
Second Mafco Collateral Account after the foregoing application shall be
applied as set forth in Section 2.05(b)(v) of the Term Credit Agreement. If an
Event of Default set forth in Section 6.01(a) shall occur and be continuing at
the same time as an "Event of Default" set forth in Section 6.01(a) of the Term
Credit Agreement shall occur and be continuing, such amount (less the sum of
(1) the amount of interest and fees then due and payable in respect of the Term
Facility plus (2) the amount of expenses of the "Administrative Agent" under
the Term Credit Agreement (including the reasonable fees and expenses of
counsel to such "Administrative Agent") then due and payable) shall be applied
pro rata to the Revolving Credit Facility and to the Debt under the Term Credit
Agreement and such pro rata amount shall be applied to the Revolving Credit
Facility as set forth in this Section 2.05(b)(v).
(vi) On each date that an "Event of Default" set forth in Section
6.01(a) of the Term Credit Agreement shall occur and be continuing, the
Revolving Credit Facility shall be automatically and permanently reduced by an
amount equal to the excess of (x) the amount
52
on deposit in the Second Mafco Collateral Account over (y) the sum of (1) the
amount of interest and fees then due and payable in respect of the Facilities
plus (2) the amount of expenses of the Administrative Agent (including the
reasonable fees and expenses of counsel to the Administrative Agent) then due
and payable plus (3) the aggregate amount paid (including the aggregate amount
of interest, fees and expenses then due and payable in respect of the Term
Facility) from such amount on deposit pursuant to the terms of Section
2.05(b)(vi) of the Term Credit Agreement. Each such reduction shall be applied
ratably to the Revolving Credit Facility and shall be made ratably among the
Lenders in accordance with their Revolving Credit Commitments. If an "Event of
Default" set forth in Section 6.01(a) of the Term Credit Agreement shall occur
and be continuing at the same time as an Event of Default set forth in Section
6.01(a) shall occur and be continuing, such amount shall be applied pro rata to
the Revolving Credit Facility and to the Debt under the Term Credit Agreement
and such pro rata amount shall be applied to the Revolving Credit Facility as
set forth in this Section 2.05(b)(vi).
(vii) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the Letter of Credit Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon at
least one Business Day's notice to the Administrative Agent, in the case of
Base Rate Advances, and three Business Days' notice to the Administrative
Agent, in the case of Eurodollar Rate Advances, stating the proposed date, and
the aggregate principal amount of the prepayment, and if such notice is given,
the Borrower shall, prepay the outstanding principal amounts of the Advances
comprising part of the same Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount so
prepaid; provided, however, that, with respect to any prepayment made in
connection with the provisions of Section 7(o) of the Mafco Guaranty, no such
notice shall be required; provided further that (x) each partial prepayment
(other than a prepayment made in connection with the provisions of Section 7(o)
of the Mafco Guaranty) shall be in an aggregate principal amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if the
aggregate principal amount of all Advances that constitute part of such
Borrowing is less, such aggregate principal amount) and (y) in the event any
such prepayment of Eurodollar Rate Advances is not made on the last day of an
Interest Period, the Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 8.04(b).
(b) Mandatory. (i) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Revolving Credit Borrowing and the Letter of Credit Advances equal to
the amount by which (A) the sum of aggregate principal amount of (x) the
Revolving Credit Advances and (y) the Letter of Credit Advances then
outstanding plus the aggregate Available Amount of all Letters
53
of Credit then outstanding plus the ADR Reserve Amount on such Business Day
exceeds (B) the Revolving Credit Facility on such Business Day.
(ii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in such Collateral Account
to equal the amount by which the aggregate Available Amount of all Letters of
Credit then outstanding exceeds the Letter of Credit Facility on such Business
Day.
(iii) The Borrower shall, on the first day of each Mandatory
Clean-Down Period, prepay in full the Revolving Credit Advances and the Letter
of Credit Advances.
(iv) Prepayments of the Revolving Credit Facility made pursuant to
clause (i) or (iii) above shall be first, applied to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full and second,
applied to prepay Revolving Credit Advances then outstanding comprising part of
the same Borrowings.
(v) If, as a result of the making of any prepayment required to be
made pursuant to this Section 2.06, the Borrower would incur costs pursuant to
Section 8.04(b), the Borrower may deposit the amount of such prepayment with
the Administrative Agent, for the benefit of the Lenders, in a cash collateral
account, until the end of the applicable Interest Period at which time such
payment shall be made. The Borrower hereby grants to the Administrative Agent,
for the benefit of the Lenders, a security interest in all amounts in which the
Borrower 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 Borrower hereby acknowledges and agrees are vested exclusively in
the Administrative Agent) to exercise dominion or control over any such
amounts.
SECTION 2.07. Interest. (a) Ordinary Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in
full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of the Base
Rate in effect from time to time plus the Applicable Margin in effect from
time to time, payable in arrears quarterly on the first Business Day of
each March, June, September and December during such periods, commencing
June 2, 1997, and on the date such Base Rate Advance shall be Converted or
paid in full.
54
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin in effect from time to time,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first day of
such Interest Period.
(b) Default Interest. The Borrower shall pay on demand interest on the
unpaid principal amount of each Advance that is not paid when due and on the
unpaid amount of all interest, fees and other amounts then due and payable
hereunder that is not paid when due from the due date thereof to the date paid,
at a rate per annum equal at such time to (i) in the case of any amount of
principal, 2% per annum above the rate of interest per annum required to be
paid on such Advance immediately prior to the date on which such amount became
due and payable and (ii) in the case of all other amounts, 2% per annum above
the rate per annum required to be paid on Base Rate Advances pursuant to
Section 2.07(a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) The Administrative
Agent shall give prompt notice to the Borrower and each Lender of the
applicable interest rate determined by the Administrative Agent for purposes of
Section 2.07(a)(i) or (ii), and the applicable rate, if any, furnished by
Citibank for the purpose of determining the applicable interest rate under
Section 2.07(a)(i) or (ii).
(b) If Citibank cannot furnish timely information to the
Administrative Agent for determining the Eurodollar Rate, the Administrative
Agent shall forthwith notify the Borrower and each Lender that the interest
rate cannot be determined for such Eurodollar Rate Advances, whereupon (i) each
such Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii)
the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify
the Borrower that Citibank has determined that the circumstances causing such
suspension no longer exist.
(c) If the Required Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Eurodollar Rate Advances will
not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their pro rata shares of such Eurodollar Rate Advances for such
Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative
55
Agent shall notify the Borrower that such Required Lenders have determined that
the circumstances causing such suspension no longer exist.
(d) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith notify the Borrower and the Lenders and the
Interest Period for such Eurodollar Rate Advances will be one month.
SECTION 2.09. Fees. (a) Commitment Fee. The Borrower agrees to pay to
the Administrative Agent for the account of the Lenders a commitment fee on the
average daily Unused Revolving Credit Commitment of such Lender, from the date
hereof, in the case of each Financial Institution, and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a
Lender, in the case of each other Lender, until the Termination Date at a rate
equal to 1-1/4% per annum, payable in arrears on the date of the initial
Revolving Credit Borrowing, thereafter quarterly on the first Business Day of
each March, June, September and December commencing June 2, 1997 and on the
Termination Date.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Administrative Agent for the account of each Lender a commission, payable in
arrears quarterly on the first Business Day of each March, June, September and
December, commencing June 2, 1997, and on the earliest to occur of the full
drawing, expiration, termination or cancellation of any such Letter of Credit
and on the Termination Date, on such Lender's Pro Rata Share of the average
daily aggregate Available Amount during such quarter of (A) all Standby Letters
of Credit outstanding from time to time at the rate of 4-1/2% per annum and
(B) all Trade Letters of Credit then outstanding at the rate of 4-1/2% per
annum.
(ii) The Borrower shall pay to each Issuing Bank, for its own account,
such commissions, issuance fees, fronting fees, transfer fees and other fees
and charges in connection with the issuance or administration of each Letter of
Credit as the Borrower and such Issuing Bank shall agree.
(c) Other Fees. The Borrower shall pay to the Administrative Agent for
its own account such fees as are set forth in the fee letter dated March 20,
1997 between Mafco and Citibank, as the same may be amended or otherwise
modified from time to time.
SECTION 2.10. Increased Costs; Illegality. (a) Except as to taxes,
levies, imposts, deductions, charges, withholdings or liabilities with respect
thereto (it being understood that the Borrower shall not have any liability for
any taxes, levies, imposts, deductions, charges, withholdings or liabilities
with respect thereto, except as provided in Section 2.13), if, due to either
(i) the introduction of or any change (other than any change by
56
way of imposition or increase of reserve requirements included in the
Eurodollar Rate Reserve Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance by any Lender Party with any guideline or
request from any central bank or other governmental authority in any case
introduced, changed, interpreted or requested after the date hereof (whether or
not having the force of law), there shall be (x) imposed, modified or deemed
applicable any reserve, special deposit or similar requirement against assets
held by, or letters of credit or guarantees issued by, or deposits in or for
the account of, any Lender Party or (y) imposed on any Lender Party any other
condition relating to this Agreement or the Advances made by it or the issuance
by it of Letters of Credit, and the result of any event referred to in clause
(x) or (y) shall be to increase the cost to such Lender Party of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances or of agreeing
to issue or of issuing or maintaining Letters of Credit or of agreeing to make
or of making or maintaining Letter of Credit Advances, then the Borrower shall
from time to time, upon demand by such Lender Party (with a copy of such demand
to the Administrative Agent) made within 60 days after the first date on which
such Lender Party has actual knowledge that it is entitled to make demand for
payment under this Section 2.10(a), pay to the Administrative Agent for the
account of such Lender Party additional amounts sufficient to compensate such
Lender Party for such increased cost; provided, however, that if such Lender
Party fails to so notify the Borrower within such 60-day period, such increased
cost shall commence accruing on such later date on which the Lender Party
notifies the Borrower; provided further that, before making any such demand,
such Lender Party agrees to use its best efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender Party, be otherwise disadvantageous to such
Lender Party. A certificate as to the amount of such increased cost, submitted
to the Borrower and the Administrative Agent by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental or monetary authority in regard to capital adequacy (whether or
not having the force of law) including, without limitation, any guideline
contemplated by the report dated July 1988 entitled "International Convergence
of Capital Management and Capital Standards" issued by the Bank Committee on
Banking Regulations and Supervisory Practices, in any case in which such law,
regulation, guideline or request became effective or was made after the date
hereof, has or would have the effect of reducing the rate of return on the
capital of, or maintained by, such Lender Party or any corporation controlling
such Lender Party as a consequence of such Lender Party's Advances or
Commitments hereunder or the issuance by it of any Letter of Credit and other
commitments of this type, by increasing the amount of capital required or
expected to be maintained by such Lender Party or any corporation controlling
such Lender Party, to a level below that which such Lender Party or any
corporation controlling such
57
Lender Party could have achieved but for such adoption, effectiveness, change
or compliance (taking into account such Lender Party's or such corporation's
policies with respect to capital adequacy), then the Borrower shall, from time
to time, pay such Lender Party, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent) made within 60 days after the first
date on which such Lender Party has actual knowledge that it is entitled to
make demand for payment under this Section 2.10(b) of such reduction in return,
such additional amount as may be specified by such Lender Party as being
sufficient to compensate such Lender Party for such reduction in return, to the
extent that such Lender Party reasonably determines such reduction to be
attributable to the existence of such Lender Party's commitment to lend or to
issue Letters of Credit hereunder or to the issuance or maintenance of any
Letters of Credit; provided, however, that if such Lender Party fails to so
notify the Borrower within such 60-day period, such amounts shall commence
accruing on such later date on which the Lender Party notifies the Borrower. A
certificate as to such amounts submitted to the Borrower and the Administrative
Agent by such Lender Party shall be conclusive and binding for all purposes,
absent manifest error.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, then, upon written
notice by such Lender to the Borrower (with a copy to the Administrative
Agent), (i) each Eurodollar Rate Advance will automatically Convert into a Base
Rate Advance and (ii) the obligation to make, or to Convert Base Rate Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist; provided, however, that, before making any
such demand, such Lender shall designate a different Eurodollar Lending Office
if the making of such a designation would avoid the need for giving such notice
and demand, and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. For purposes of this Section 2.10(c), a notice
to the Borrower by a Lender shall be effective with respect to any Eurodollar
Rate Advance on the last day of the then current Interest Period for such
Advance; provided, however, that, if it is not lawful for such Lender to
maintain such Advance until the end of the Interest Period applicable thereto,
then the notice to the Borrower shall be effective upon receipt by the
Borrower.
SECTION 2.11. Conversion of Advances. (a) Optional. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than noon (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and
2.10, Convert all or any portion of the Advances of one Type comprising the
same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be
58
made on, and only on, the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be subject to the limitation set forth in Section 2.02(e) and in
an amount not less than $5,000,000 and each Conversion of Advances comprising
part of the same Borrowing shall be made ratably among the Lenders in
accordance with their Revolving Credit Commitments. Each such notice of
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than $5,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(ii) Upon the occurrence and during the continuance of any Event of
Default (or, in the case of any involuntary proceeding described in Section
6.01(e), a Default), (A) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (B) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.12. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 11:00 A.M. (New York
City time) on the day when due in U.S. Dollars to the Administrative Agent at
the Administrative Agent's Account in same day funds. The Administrative Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or commitment fees ratably (other than amounts
payable pursuant to Section 2.10 or 2.13) to the Lender Parties for the account
of their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender Party to such Lender Party
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if and to the
extent payment of principal, interest or fees owed to such Lender Party is not
made when due hereunder or, in the case of a Lender under the Note or Notes
held by such Lender, to charge
59
from time to time against any or all of the Borrower's accounts with such
Lender Party any amount so due.
(c) All computations of interest based on the Eurodollar Rate, the
Base Rate or the Federal Funds Rate and of commitment fees and Letter of Credit
commissions shall be made by the Administrative Agent, on the basis of a year
of 360 days, in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
or commitment fees are payable. Each determination by the Administrative Agent
of an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under any Note shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder or under any Note that the Borrower will not make such payment in
full, the Administrative Agent may assume, or at its option request
confirmation from the Borrower, that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender
Party on such due date an amount equal to the amount then due such Lender
Party. If and to the extent the Borrower shall not have so made such payment in
full to the Administrative Agent, each Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances to which, or the manner in which, such
funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
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SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender Party
and the Administrative Agent, (i) taxes imposed on its income, and franchise
taxes and backup withholding taxes imposed on it, by the United States or the
jurisdiction under the laws of which such Lender Party or the Administrative
Agent (as the case may be) is organized or any political subdivision or taxing
authority thereof or therein, (ii) taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Lender Party's or, in either
such case, the Administrative Agent's principal office or Applicable Lending
Office or any political subdivision or taxing authority thereof or therein and
(iii) United States withholding tax payable with respect to payments hereunder
under laws (including, without limitation any statute, treaty, ruling,
determination or regulation) in effect on the Initial Date with respect to such
Lender Party or the Administrative Agent, but not excluding any United States
withholding tax payable as a result of any change in such laws occurring after
the Initial Date (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any Note to any Lender Party
or the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions of Taxes (including
deductions of Taxes applicable to additional sums payable under this Section
2.13) such Lender Party or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions of Taxes been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law; provided,
however, that any such Lender Party shall designate a different Applicable
Lending Office if, in the judgment of such Lender Party, such designation would
avoid the need for, or reduce the amount of, any Taxes required to be deducted
from or in respect of any sum payable hereunder to such Lender Party or the
Administrative Agent and would not, in the judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender Party and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.13) paid by such Lender Party or the
Administrative Agent (as the case may be) and any liability
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(including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto; provided that, in the event such Lender
Party or the Administrative Agent, as the case may be, successfully contests
the assessment of such Taxes or Other Taxes or any liability arising therefrom
or with respect thereto, such Lender Party or the Administrative Agent shall
refund, to the extent of any refund thereof made to such Lender Party or the
Administrative Agent, any amounts paid by the Borrower under this Section
2.13(c) in respect of such Taxes, Other Taxes or liabilities arising therefrom
or with respect thereto. Each Lender Party and the Administrative Agent agree
that it will contest such Taxes, Other Taxes or liabilities if (i) the Borrower
furnishes to it an opinion of reputable tax counsel acceptable to such Lender
Party or the Administrative Agent to the effect that such Taxes or Other Taxes
were wrongfully or illegally imposed and (ii) such Lender Party or the
Administrative Agent determines, in its sole discretion, that it would not be
disadvantaged or prejudiced in any manner whatsoever as a result of such
contest. This indemnification shall be made within 30 days from the date such
Lender Party or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to
in Section 8.02, appropriate evidence of payment thereof. If no Taxes are
payable in respect of any payment hereunder or under the Notes by the Borrower
from an account or branch outside the United States or on behalf of the
Borrower by a payor that is not a United States person, the Borrower will
furnish to the Administrative Agent, at such address, a certificate from each
appropriate taxing authority, or an opinion of counsel acceptable to the
Administrative Agent, in either case stating that such payment is exempt from
or not subject to Taxes. For purposes of this Section 2.13, the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States and the Administrative Agent, if organized under the
laws of a jurisdiction outside the United States, shall, on or prior to the
Initial Date and from time to time thereafter if requested in writing by the
Borrower or the Administrative Agent (but only so long thereafter as such
Lender Party or the Administrative Agent remains lawfully able to do so),
provide the Borrower and (in the case of any such Lender Party other than the
Administrative Agent) the Administrative Agent with two duly completed copies
of Internal Revenue Service form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Lender
Party or the Administrative Agent is entitled to benefits under an income tax
treaty to which the United States is a party that reduces the rate of
withholding tax on payments under this Agreement or the Notes or certifying
that the income receivable pursuant to this Agreement or the Notes is
effectively connected with the conduct of a trade or business in the United
States.
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(f) For any period with respect to which the Administrative Agent or a
Lender Party has failed to provide the Borrower with the appropriate forms
described in subsection (e) above (other than if such failure is due to a
change in law occurring after the date on which such person was originally
required to provide such forms, or if such forms are otherwise not required
under subsection (e) above), the Administrative Agent or such Lender Party
shall not be entitled to increased payments or indemnification under subsection
(a) or (c) above with respect to Taxes imposed by the United States; provided,
however, that should the Administrative Agent or a Lender Party become subject
to Taxes because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as the Administrative Agent or such Lender Party
shall reasonably request to assist the Lender Party to recover such Taxes if,
in the judgment of the Borrower such steps would avoid the need for, or reduce
the amount of, any Taxes required to be deducted from or in respect of any sum
payable hereunder to the Administrative Agent or such Lender Party and would
not, in the judgment of the Borrower, be disadvantageous to the Borrower.
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.13 shall survive the payment in full of principal and interest
hereunder and under the Notes.
(h) If a Lender Party shall change its Applicable Lending Office other
than (i) at the request of the Borrower or (ii) at a time when such change
would not result in this Section 2.13 requiring the Borrower to make a greater
payment than if such change had not been made, such Lender Party shall not be
entitled to receive any greater payment under this Section 2.13 than such
Lender Party would have been entitled to receive had it not changed its
Applicable Lending Office.
SECTION 2.14. Sharing of Payments, Etc. If any Lender Party shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than pursuant to Section 2.10 or 2.13) in excess of its ratable share of
payments on account of the Advances obtained by all the Lender Parties, such
Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Advances owing to them as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that, if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender Party,
such purchase from each Lender Party shall be rescinded and such Lender Party
shall repay to the purchasing Lender Party the purchase price to the extent of
such recovery together with an amount equal to such Lender Party's ratable
share (according to the proportion of (i) the amount of such Lender Party's
required repayment to (ii) the total amount so recovered from the purchasing
Lender Party) of any interest or other amount paid or payable by the purchasing
Lender Party in respect of the total amount so
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recovered. The Borrower agrees that any Lender Party so purchasing an interest
or participating interest from another Lender Party pursuant to this Section
2.14 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such interest or
participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
SECTION 2.15. Removal of Lender. In the event that any Lender Party
demands payment of costs or additional amounts pursuant to Section 2.10 or
Section 2.13 or asserts pursuant to Section 2.10(c) that it is unlawful for
such Lender Party to make Eurodollar Rate Advances, then (subject to such
Lender Party's right to rescind such demand or assertion within 10 days after
the notice from the Borrower referred to below) the Borrower may, upon 20 days'
prior written notice to such Lender Party and the Administrative Agent, elect
to cause such Lender Party to assign its Advances and Commitments in full to an
assignee institution selected by the Borrower that meets the criteria of an
Eligible Assignee and is reasonably satisfactory to the Administrative Agent,
so long as such Lender Party receives payment in full in cash of the
outstanding principal amount of all Advances made by it and all accrued and
unpaid interest thereon and all other amounts due and payable to such Lender
Party as of the date of such assignment (including without limitation amounts
owing pursuant to Section 2.10 or 2.13), and in such case such Lender Party
agrees to make such assignment, and such assignee shall agree to accept such
assignment and assume all obligations of such Lender Party hereunder, in
accordance with Section 8.07.
SECTION 2.16. Defaulting Lender. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower
may, so long as no Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law, set-off and otherwise apply the
Obligation of the Borrower to make such payment to or for the account of such
Defaulting Lender against the Obligation of such Defaulting Lender to make such
Defaulted Advance. In the event that the Borrower shall so set-off and
otherwise apply the Obligation of the Borrower to make any such payment against
the Obligation of such Defaulting Lender to make any such Defaulted Advance on
any date, the amount so set-off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on such date under the Facility pursuant
to which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01. Such Advance shall be considered, for all purposes of
this Agreement, to comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made pursuant to Section
2.01. The Borrower shall notify the Administrative Agent at any time the
Borrower reduces the amount of the Obligation of the Borrower to make any
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payment otherwise required to be made by it hereunder or under any other Loan
Document as a result of the exercise by the Borrower of its right set forth in
this subsection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set-off and otherwise applied in respect
of such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by the Borrower to or for the account of
such Defaulting Lender which is paid by the Borrower, after giving effect to
the amount set-off and otherwise applied by the Borrower pursuant to this
subsection (a), shall be applied by the Administrative Agent as specified in
subsection (b) or (c) of this Section 2.16.
(b) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to the Administrative Agent, the Collateral Agent or any of the other Lender
Parties and (iii) the Borrower shall make any payment hereunder or under any
other Loan Document to the Administrative Agent for the account of such
Defaulting Lender, then the Administrative Agent may, on its behalf or on
behalf of such other Lender Parties and to the fullest extent permitted by
applicable law, apply at such time the amount so paid by the Borrower to or for
the account of such Defaulting Lender to the payment of each such Defaulted
Amount up to the amount required to pay such Defaulted Amount. In the event
that the Administrative Agent shall so apply any such amount to the payment of
any such Defaulted Amount on any date, the amount so applied by the
Administrative Agent shall constitute for all purposes of this Agreement and
the other Loan Documents payment, to such extent, of such Defaulted Amount on
such date. Any such amount so applied by the Administrative Agent shall be
retained by the Administrative Agent or distributed by the Administrative Agent
to such other Lender Parties, ratably in accordance with the respective
portions of such Defaulted Amounts payable at such time to the Administrative
Agent and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, the Collateral Agent and the
other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent and the Collateral Agent for
any Defaulted Amounts then owing to the Administrative Agent and the
Collateral Agent, ratably in accordance with such respective Defaulted
Amounts then owing to the Administrative Agent and the Collateral Agent;
and
(ii) second, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to
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this subsection (b), shall be applied by the Administrative Agent as specified
in subsection (c) of this Section 2.16.
(c) In the event that, at any one time, (i) any Lender Party shall be
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative Agent,
the Collateral Agent or any other Lender Party shall be required to pay or
distribute any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower, the Collateral Agent or
such other Lender Party shall pay such amount to the Administrative Agent to be
held by the Administrative Agent, to the fullest extent permitted by applicable
law, in escrow or the Administrative Agent shall, to the fullest extent
permitted by applicable law, hold in escrow such amount otherwise held by it.
Any funds held by the Administrative Agent in escrow under this subsection (c)
shall be deposited by the Administrative Agent in an account with Citibank, in
the name and under the control of the Administrative Agent, but subject to the
provisions of this subsection (c). The terms applicable to such account,
including the rate of interest payable with respect to the credit balance of
such account from time to time, shall be Citibank's standard terms applicable
to escrow accounts maintained with it. Any interest credited to such account
from time to time shall be held by the Administrative Agent in escrow under,
and applied by the Administrative Agent from time to time in accordance with
the provisions of, this subsection (c). The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in escrow
from time to time to the extent necessary to make any Advances required to be
made by such Defaulting Lender and to pay any amount payable by such Defaulting
Lender hereunder and under the other Loan Documents to the Administrative
Agent, the Collateral Agent or any other Lender Party, as and when such
Advances or amounts are required to be made or paid and, if the amount so held
in escrow shall at any time be insufficient to make and pay all such Advances
and amounts required to be made or paid at such time, in the following order of
priority:
(i) first, to the Administrative Agent and the Collateral Agent for
any amount then due and payable by such Defaulting Lender to the
Administrative Agent and the Collateral Agent hereunder, ratably in
accordance with such respective amounts then due and payable to the
Administrative Agent and the Collateral Agent;
(ii) second, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iii) third, to the Borrower for any Advance then required to be made
by such Defaulting Lender pursuant to the Commitment of such Defaulting
Lender.
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In the event that such Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at such
time with respect to such Defaulting Lender shall be distributed by the
Administrative Agent to such Defaulting Lender and applied by such Defaulting
Lender to the Obligations owing to such Lender Party at such time under this
Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.16 are in addition to other rights and remedies which the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and which the Administrative Agent, the Collateral Agent or any Lender Party
may have against such Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date. Article II
hereof shall be effective on and as of the date (the "Effective Date"), on
which each of the following conditions precedent shall have been satisfied or
duly waived:
(a) There shall have been no adverse change since December 16, 1996 in
the corporate and legal structure and capitalization of each A Company,
each Designated Operating Company and the Bank, including the terms and
conditions of the charter, bylaws and each class of capital stock of each
such Person and of each agreement or instrument relating to such structure
or capitalization, except as contemplated by existing consents, amendments
and waivers delivered in connection with the Existing Credit Agreement; the
Lenders shall be satisfied with the corporate and legal structure and
capitalization of each of Revlon Guarantor, Revlon Worldwide Parent, Revlon
Worldwide Holdings, Consolidated Cigar Holdings and PCT, including the
terms and conditions of the charter, by-laws and each class of capital
stock of each such Person and of each agreement or instrument relating to
such structure or capitalization.
(b) Before giving effect to the transactions contemplated by this
Agreement and the Term Credit Agreement, there shall have occurred no
Material Adverse Change since December 31, 1995 relating to any of the Loan
Parties, the FN Parties and the Designated Operating Companies.
(c) There shall exist no action, suit, investigation, litigation or
proceeding affecting any of the Loan Parties, the FN Parties and the
Designated Operating
67
Companies pending or threatened before any court, governmental agency or
arbitrator that (i) would be reasonably likely to have a Material Adverse
Effect (in the case of clause (a) of the definition thereof, the term
"Person" shall refer to such Loan Party, such FN Party or such Designated
Operating Company, as the case may be) or (ii) purports to affect the
legality, validity or enforceability of this Agreement, the Term Credit
Agreement, any Note, any other Loan Document, any Related Document, any FN
Document or the consummation of the transactions contemplated hereby and
thereby.
(d) Nothing shall have come to the attention of the Lender Parties in
respect of any of the A Companies, the Designated Operating Companies or
the Bank that is inconsistent with or different from in any adverse respect
any of the results of the due diligence investigations of such Persons
conducted in connection with the Original Credit Agreement, the Second
Credit Agreement, the Third Credit Agreement, the Fourth Credit Agreement
or the Existing Credit Agreement; the Lenders shall be satisfied with the
results of their due diligence investigation of Revlon Guarantor, Revlon
Worldwide Parent, Revlon Worldwide Holdings, Consolidated Cigar Holdings
and PCT; and the Lender Parties shall have been given such access to the
management, records, books of account, contracts and properties of each A
Company, each Designated Operating Company, Consolidated Cigar Holdings,
PCT or the Bank as they shall have requested.
(e) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lender Parties and all accrued expenses of the
Administrative Agent (including the reasonable fees and expenses of counsel
to the Administrative Agent).
(f) The Lenders shall be satisfied that the Borrower has the ability
to service the interest payments in respect of the Revolving Credit
Facility and the Term Facility.
(g) Revlon Worldwide Parent shall have (i) issued the Revlon Worldwide
Parent Debt on terms and conditions satisfactory to the Lenders (including,
without limitation, permitting at least 22.5 million shares of Revlon to be
pledged in favor of the Collateral Agent) and (ii) received Net Cash
Proceeds from the issuance of the Revlon Worldwide Parent Debt in an amount
sufficient, in the reasonable judgment of the Lenders, when aggregated with
(A) the proceeds of any dividends or other distributions paid or payable by
MCG (directly or indirectly) to Mafco, (B) other funds available to Mafco
for such purposes and (C) the proceeds of the borrowings under the Term
Credit Agreement, to defease the Revlon Worldwide Bonds.
(h) Mafco and its Subsidiaries shall have provided for the defeasance
of the Revlon Worldwide Bonds on terms and conditions acceptable to the
Lenders and such
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defeasance shall be effective as promptly as practicable following the
123rd day after the initial borrowing under the Term Credit Agreement but
in any event not later than the Business Day immediately following the
130th day following such initial borrowing.
(i) All "Payment Obligations" under the Existing Credit Agreement
shall have been "Fully Satisfied" (as defined in the Existing Credit
Agreement).
(j) All "Payment Obligations" under the Existing Term Credit Agreement
shall have been "Fully Satisfied" (as defined in the Existing Term Credit
Agreement).
(k) The Administrative Agent or the Collateral Agent, as the case may
be, shall have received on or before the Effective Date the following, each
dated as of the Effective Date (unless otherwise specified), in form and
substance satisfactory to the Administrative Agent (unless otherwise
specified) and (except for the Notes) in sufficient copies for each Lender
Party:
(i) the Revolving Credit Notes to the order of the Lenders;
(ii) certified copies of the resolutions of the board of
directors of the Borrower and each other Loan Party approving this
Agreement, the Notes and each other Loan Document to which it is or is
to be a party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
this Agreement, the Notes and each other Loan Document;
(iii) a certificate of the Secretary or an Assistant Secretary of
the Borrower and each other Loan Party certifying the names and true
signatures of the officers of the Borrower and such other Loan Party
authorized to sign this Agreement, the Notes and each other Loan
Document to which they are or are to be parties and the other
documents to be delivered hereunder and thereunder;
(iv) a copy of a certificate of the Secretary of State of the
state of incorporation of the Borrower, each other Loan Party, each
Designated Operating Company and each other A Company, dated
reasonably near the Effective Date, listing the charter of such Person
and each amendment thereto on file in his office and certifying that
(A) such amendments are the only amendments to such Person's charter
on file in his office, (B) such Person has paid all franchise taxes to
the date of such certificate and (C) such Person is duly incorporated
or organized and in good standing under the laws of such state, and a
copy of a certificate of corporate existence of the Bank, dated
reasonably near the Effective Date from the Office of Thrift
Supervision;
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(v) (A) a certificate of each A Company (other than the Revlon
Entities) signed on behalf of such Person by its President or a Vice
President and its Secretary or any Assistant Secretary, dated as of
the Effective Date (the statements made in such certificate shall be
true on and as of the Effective Date), certifying as to (1) the
absence of any amendments to the charter of such Person since the date
of the Secretary of State's certificate referred to in clause (iv)
above, (2) the absence of any amendments to the bylaws of such Person
since the date of the certificate in respect of such bylaws that was
delivered to the Administrative Agent pursuant to the terms of Section
3.01 or 3.02, as the case may be, of the Original Credit Agreement,
(3) the due incorporation and good standing of such Person as a
corporation under the laws of the relevant state of incorporation, and
the absence of any proceeding for the dissolution or liquidation of
such Person, (4) the truth in all material respects of the
representations and warranties made by such Person contained in the
Loan Documents as though made on and as of the Effective Date and (5)
the absence of any event occurring and continuing, or resulting from
the Effective Date, that constitutes a Default, (B) a certificate of
Xxxxxxx Guarantor signed on behalf of Xxxxxxx Guarantor by its
President or a Vice President and its Secretary or any Assistant
Secretary, dated as of the Effective Date (the statements made in such
certificate shall be true on and as of the Effective Date), certifying
as to (1) the absence of any amendments to the charter of Xxxxxxx
since the date of the Secretary of State's certificate referred to in
clause (iv) above, (2) the absence of any amendments to the bylaws of
Xxxxxxx since the date of the certificate in respect of such bylaws
that was delivered to the Administrative Agent pursuant to the terms
of Sections 3.01 and 3.02 of the Original Credit Agreement and (3) the
due incorporation and good standing of Xxxxxxx as a corporation
organized under the laws of the State of Delaware, and the absence of
any proceeding for the dissolution or liquidation of Xxxxxxx, (C) a
certificate of the Borrower signed on behalf of the Borrower by its
President or a Vice President and its Secretary or any Assistant
Secretary, dated as of the Effective Date (the statements made in such
certificate shall be true on and as of the Effective Date), certifying
as to (1) the absence of any amendments to the charter of Marvel since
the date of the Secretary of State's certificate referred to in clause
(iv) above, (2) the absence of any amendments to the bylaws of Marvel
since the date of the certificate in respect of such bylaws that was
delivered to the Administrative Agent pursuant to the terms of
Sections 3.01 and 3.02 of the Original Credit Agreement, and (3) the
due incorporation and good standing of Marvel as a corporation
organized under the laws of the State of Delaware, and the absence of
any proceeding for the dissolution or liquidation of Marvel, (D) a
certificate of New World Guarantor signed on behalf of New World
Guarantor
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by its President or a Vice President and its Secretary or any
Assistant Secretary, dated as of the Effective Date (the statements
made in such certificate shall be true on and as of the Effective
Date), certifying as to (1) the absence of any amendments to the
charter of New World since the date of the Secretary of State's
certificate referred to in clause (iv) above, (2) the absence of any
amendments to the bylaws of New World since the date of the
certificate in respect of such bylaws that was delivered to the
Administrative Agent pursuant to the terms of Section 3.02 of the
Original Credit Agreement and (3) the due incorporation and good
standing of New World as a corporation organized under the laws of the
state of Delaware, and the absence of any proceeding for the
dissolution or liquidation of New World, (E) a certificate of C&F
Guarantor signed on behalf of C&F Guarantor by its President or a Vice
President and its Secretary or any Assistant Secretary, dated as of
the Effective Date (the statements made in such certificate shall be
true on and as of the Effective Date), certifying as to (1) the
absence of any amendments to the charter of MCG since the date of the
Secretary of State's certificate referred to in clause (iv) above, (2)
the absence of any amendments to the bylaws of MCG since the date of
the certificate in respect of such bylaws that was delivered to the
Administrative Agent pursuant to the terms of Section 3.01 of the
Third Credit Agreement and (3) the due incorporation and good standing
of MCG as a corporation organized under the laws of the State of
Delaware, and the absence of any proceeding for the dissolution or
liquidation of MCG, and (F) a certificate of Revlon Guarantor signed
on behalf of Revlon Guarantor by its President or a Vice President and
its Secretary or any Assistant Secretary, dated as of the Effective
Date (the statements made in such certificate shall be true on and as
of the Effective Date), certifying as to (1) the absence of any
amendments to the charters of the Revlon Entities and Revlon since the
date of the relevant Secretary of State's certificate referred to in
clause (iv) above, (2) the trueness and correctness of the copies of
the bylaws of each Revlon Entity and Revlon attached to such
certificate, (3) the due incorporation and good standing of each
Revlon Entity and Revlon as a corporation under the laws of the
relevant state of incorporation, and the absence of any proceeding for
the dissolution or liquidation of any such Person, (4) the truth in
all material respects of the representations and warranties made by
such Person contained in the Loan Documents as though made on and as
of the Effective Date and (5) the absence of any event occurring and
continuing, or resulting from the Effective Date, that constitutes a
Default;
(vi) a certificate of Mafco to the effect (A) that no information
provided by Mafco or any Subsidiary of Mafco to the Administrative
Agent or any Lender in connection with the Original Credit Agreement,
the Second
71
Credit Agreement, the Third Credit Agreement, the Fourth Credit
Agreement, the Existing Credit Agreement or this Agreement, as such
information has been amended, supplemented or superseded by any other
information delivered to the same parties receiving such information
contained or contains any material misstatement of fact or omitted or
omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading except that, as to any financial model included
therein, such certificate shall be limited to a statement that such
model was prepared in good faith by Mafco's or such Subsidiary's
management based on assumptions believed to be reasonable when made
and may be further qualified by a statement to the effect that because
assumptions as to future results are inherently subject to uncertainty
and contingencies beyond Mafco's or such Subsidiary's control, actual
results of Mafco or such Subsidiary may be higher or lower, (B) the
Mafco Guaranty is in full force and effect on the Effective Date, (C)
that other than the agreements referenced in Section 3.01(k)(x), the
charter documents of each A Company and each FN Party, the Loan
Documents and the Related Documents, there is no other agreement,
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting any A Company or any FN Party
that imposes any material Obligation or any material restriction on
any A Company or any FN Party, (D) that the agreements referenced in
Section 3.01(k)(x) are the only agreements, contracts, loan
agreements, indentures, mortgages, deeds of trust, leases or other
instruments (1) evidencing Debt of any Designated Operating Company or
any of their Subsidiaries outstanding on the Effective Date, (2)
governing the terms of Debt of any Designated Operating Company or any
of their Subsidiaries outstanding on the Effective Date, or (3)
containing any commitment or other agreement by any Person to extend
credit that would constitute Debt to any Designated Operating Company
or any of their Subsidiaries, in each case that imposes or will impose
material Obligations or material restrictions on any Designated
Operating Company and its Subsidiaries taken as a whole and (E) that
there is no other agreement or contract binding on or affecting any
Designated Operating Company or any of their Subsidiaries that
contains provisions that would restrict any Loan Party from performing
or that would impair the ability of any Loan Party to perform, any of
the obligations of such Loan Party under the Loan Documents;
(vii) the Mafco Security Agreement in substantially the form of
Exhibit D duly executed by Mafco, together with:
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(1) acknowledgement copies or stamped receipt copies of
proper amendments to the financing statements previously filed in
connection with the Mafco Security Agreement; and
(2) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the Liens created by the Mafco Security Agreement;
(viii) the Mafco Guaranty in substantially the form of Exhibit
E-1, duly executed by Mafco, the C&F Guaranty in substantially the
form of Exhibit E-2, duly executed by the C&F Guarantor, the Cigar
Guaranty in substantially the form of Exhibit E-3, duly executed by
Cigar Guarantor, the Xxxxxxx Guaranty in substantially the form of
Exhibit E-4, duly executed by Xxxxxxx Guarantor, the Flavors Guaranty
in substantially the form of Exhibit E-5, duly executed by Flavors
Guarantor, the New World Guaranty in substantially the form of Exhibit
E-6, duly executed by New World Guarantor, the Revlon Guaranty in
substantially the form of Exhibit E-7, duly executed by Revlon
Guarantor and the Revlon Worldwide Holdings Guaranty in substantially
the form of Exhibit E-8, duly executed by Revlon Worldwide Holdings;
(ix) the C&F Pledge Agreement in substantially the form of
Exhibit F-1, duly executed by C&F Guarantor, the New World Pledge
Agreement in substantially the form of Exhibit F-2, duly executed by
New World Guarantor, the Revlon Pledge Agreement in substantially the
form of Exhibit F-3, duly executed by Revlon Guarantor, the Revlon
Worldwide Holdings Pledge Agreement in substantially the form of
Exhibit F-4, duly executed by Revlon Worldwide Holdings and the Revlon
Worldwide Parent Pledge Agreement in substantially the form of Exhibit
F-5, duly executed by Revlon Worldwide Parent, together with:
(1) acknowledgment copies or stamped receipt copies of (A)
proper financing statements in respect of the Revlon Pledge
Agreement, the Revlon Worldwide Holdings Pledge Agreement and the
Revlon Worldwide Parent Pledge Agreement, in form and substance
satisfactory to the Administrative Agent and (B) proper
amendments to the financing statements previously filed in
connection with each other Pledge Agreement referred to above, in
form and substance satisfactory to the Administrative Agent,
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(2) completed requests for information, dated on or before
the Effective Date, listing the financing statements referred to
in clause (1) above,
(3) in the case of the New World Pledge Agreement,
instruments evidencing the Pledged Debt referred to therein
indorsed in blank, and
(4) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the Liens created by the each such Pledge Agreement has
been taken;
(x) a certificate of Mafco to the effect that, other than the
agreements delivered to the Administrative Agent pursuant to Section
3.01(g)(xii)(B) and Section 3.02(i)(xi)(B) of the Original Credit
Agreement and other than as specified in and delivered pursuant to
such certificate and the certificate of Mafco delivered pursuant to
Section 3.01(f)(x) of the Second Credit Agreement, Section 3.01(f)(ix)
of the Third Credit Agreement, Section 3.01(f)(x) of the Fourth Credit
Agreement and Section 3.01(h)(xi) of the Existing Credit Agreement,
there is no other contract, loan agreement, indenture, mortgage, deed
of trust, lease or other instrument (1) evidencing Debt of any A
Company, (2) governing the terms of Debt of any A Company, or (3)
containing any commitment or other agreement by any Person to extend
credit that would constitute Debt to any A Company or any Designated
Operating Company or any of its Subsidiaries, in each case that
imposes any material obligation or any material restriction on any A
Company or any Designated Operating Company and its Subsidiaries,
taken as a whole;
(xi) such financial, business and other information regarding
each Loan Party and their Subsidiaries as the Lender Parties shall
have reasonably requested, including, without limitation, information
as to possible contingent liabilities, tax matters, environmental
matters, obligations under ERISA and Welfare Plans, collective
bargaining agreements and other arrangements with employees, annual
financial statements of the Bank dated December 31, 1995, interim
financial statements of the Bank dated the end of the most recent
fiscal quarter for which financial statements are available, pro forma
financial statements as to the Borrower, and forecasts prepared by
management of the Bank, in form and substance satisfactory to the
Lender Parties, of balance sheets, income statements and cash flow
statements of the Bank on a quarterly basis for the term of the
Revolving Credit Facility;
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(xii) certified copies of (A) a voting trust agreement (each in
form and substance satisfactory to the Lender Parties) relating to the
capital stock of Revlon Guarantor and Revlon Worldwide Holdings and
(B) the Term Credit Agreement;
(xiii) an assignment, in form and substance satisfactory to the
Lender Parties, of the rights of Mafco or one or more of its
Subsidiaries of a Registration Rights Agreement in respect of the
capital stock of Revlon owned by Mafco and its Subsidiaries;
(xiv) a letter, in form and substance satisfactory to the
Administrative Agent, from Mafco to Ernst & Young, independent
certified public accountants, advising such accountants that the
Administrative Agent and the Lender Parties have relied upon the
financial statements of Xxxxxxx, New World and MCG in determining
whether to enter into the Loan Documents and have been authorized to
exercise all rights of Mafco to require such accountants to disclose
any and all financial statements and any other information of any kind
that they may have with respect to such Persons and their Subsidiaries
and directing such accountants to comply with any reasonable request
of the Administrative Agent or any Lender Party for such information;
(xv) a letter, in form and substance satisfactory to the
Administrative Agent, from the Bank to KPMG Peat Marwick, independent
certified public accountants, advising such accountants that the
Administrative Agent and the Lender Parties have relied upon the
financial statements of Revlon and the Bank in determining whether to
enter into the Loan Documents and have been authorized to exercise all
rights of Revlon and the Bank to require such accountants to disclose
any and all financial statements and any other information of any kind
that they may have with respect to such Persons and their Subsidiaries
and directing such accountants to comply with any reasonable request
of the Administrative Agent or any Lender Party for such information;
(xvi) favorable opinions of counsel to Mafco reasonably
satisfactory to the Lender Parties, in form and substance reasonably
satisfactory to the Lender Parties;
(xvii) a favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent; and
75
(xviii) such other information, approvals, opinions or other
documents as the Administrative Agent may reasonably request.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The
obligation of each Lender to make an Advance (other than a Letter of Credit
Advance made by the Issuing Bank or a Lender pursuant to Section 2.03(c)) on
the occasion of each Borrowing (including the initial Borrowing), and the
obligation of the Issuing Bank to issue a Letter of Credit (including the
initial issuance) or renew a Letter of Credit and the right of the Borrower to
request the issuance or renewal of a Letter of Credit, shall be subject to the
further conditions precedent that on the date of such Borrowing or issuance (a)
the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing or Notice of Issuance and the acceptance by the
Borrower of the proceeds of such Borrowing or of such Letter of Credit or the
renewal of such Letter of Credit shall constitute a representation and warranty
by the Borrower that both on the date of such notice and on the date of such
Borrowing or issuance or renewal such statements are true):
(i) The representations and warranties contained in the Loan Documents
are correct in all material respects on and as of such date, before and
after giving effect to such Borrowing or issuance and to the application of
the proceeds therefrom, as though made on and as of such date, except to
the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties were true,
correct and complete in all material respects on and as of such earlier
date; and
(ii) No event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds
therefrom, which constitutes a Default,
(b) the Borrower shall, on the seventh Business Day prior to the date of such
Borrowing or issuance, deliver to the Administrative Agent either (1) a
Look-Forward Certificate or (2) a Deposit Certificate if a Look-Forward
Certificate has been delivered to the Administrative Agent within 90 days prior
to the date of such Borrowing or issuance, and the Required Lenders shall not
have determined, within 4 Business Days following the date of receipt of such
Look-Forward Certificate or Deposit Certificate, as the case may be, in their
reasonable discretion, that the pro forma amounts available to be loaned by
First Gibraltar to Borrower Parent, together with amounts received by Mafco
pursuant to or in connection with any Related Document, will be less than $15
million in any calendar quarter (of which at least $10 million shall be from
amounts available to be loaned by First Gibraltar to Borrower Parent) or will
not be sufficient to pay interest on the Advances then outstanding and interest
on the Debt then outstanding under the Term Credit Agreement, (c) in the case
of the first Borrowing after the New Marvel Shares have been pledged pursuant
to the Loan Documents and the "Loan
76
Documents" under the Term Credit Agreement, the Borrower shall have delivered
to the Administrative Agent an appropriately completed Federal Reserve Form U-1
for each Lender and (d) the Administrative Agent shall have received such other
certificates, opinions and other documents as any Lender Party through the
Administrative Agent may reasonably request in order to confirm (x) the
accuracy of the Borrower's representations and warranties, (y) the Borrower's
timely compliance with the terms, covenants and agreements set forth in this
Agreement, and (z) the absence of any Default.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender Parties
unless an officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender
Party prior to the earlier of the initial Borrowing or the initial issuance of
a Letter of Credit specifying its objection thereto and if such earlier event
consists of a Borrowing, such Lender Party shall not have made available to the
Administrative Agent such Lender Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed except where the failure to so qualify or be licensed would not
have a Material Adverse Effect (with respect to clause (a) of the
definition thereof, the term "Person" shall refer to the Borrower) and
(iii) has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding capital stock of the
Borrower has been validly issued, is fully paid and non-assessable and is
owned by the Borrower Parent free and clear of all Liens except for the
Liens created by the Collateral Documents.
77
(b) Set forth on Schedule II hereto is a complete and accurate list
relating to the Borrower, showing as of the date hereof the jurisdiction of
its incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned (directly or
indirectly) by Borrower Parent and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and similar
rights at the date hereof.
(c) The execution, delivery and performance by the Borrower of this
Agreement, the Notes, each Loan Document and each Related Document to which
it is or is to be a party and the consummation by the Borrower of the
transactions contemplated hereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do
not (i) contravene the Borrower's charter or by-laws, (ii) violate any law
(including, without limitation, the Exchange Act), rule, regulation
(including, without limitation, Regulation X of the Board of Governors of
the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default under, any loan agreement, contract, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting
any Loan Party, any of its Subsidiaries (other than any Subsidiaries of the
Borrower) or any of its or their properties, the effect of which conflict,
breach or default is reasonably likely to have a Material Adverse Effect
(with respect to clause (a) of the definition thereof, the term "Person"
shall refer to the Borrower) or (iv) except for the liens created by the
Collateral Documents, the voting trust agreements (other than the voting
trust agreements relating to the capital stock of FN Holdings and FN
Parent) referred to in Sections 3.01(g)(xvi) and 3.02(i)(xv) of the
Original Credit Agreement, the Amended and Restated Voting Trust Agreement
dated as of December 16, 1996 among The Bank of New York, the Cigar
Guarantor, C&F Guarantor and the Collateral Agent, the Amended and Restated
Voting Trust Agreement dated as of December 16, 1996 among The Bank of New
York, the Flavors Guarantor, C&F Guarantor and the Collateral Agent, the
Amended and Restated Voting Trust Agreement dated as of December 16 , 1996
among Trans Network Insurance Services Inc., FG Guarantor, The Bank of New
York and the Collateral Agent, the Second Amended and Restated Voting Trust
Agreement dated as of December 16, 1996 among FG Guarantor, First
Gibraltar, The Bank of New York and the Collateral Agent and the voting
trust agreements referred to in Section 3.01(k)(xii)(A) result in or
require the creation or imposition of any Lien upon or with respect to any
of the properties of any Loan Party or any of its Subsidiaries (other than
the Subsidiaries of the Borrower). The Borrower is not in violation of any
such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which would be reasonably likely
78
to have a Material Adverse Effect (with respect to clause (a) of the
definition thereof, the term "Person" shall refer to the Borrower).
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for (i) the due execution, delivery and performance by the Borrower of this
Agreement or the Notes or any other Loan Document or any Related Document
to which it is or is to be a party or for the consummation of the
transactions contemplated hereby, (ii) the grant by the Borrower of the
Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created by the Collateral Documents
(including the first priority nature thereof) or (iv) the exercise by the
Administrative Agent or any Lender Party of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the filing of financing statements in
accordance with Sections 3.01 and 3.02 of the Original Credit Agreement,
Section 3.01(f)(vii) and (viii) of the Second Credit Agreement, Section
3.01(f)(vii) of the Third Credit Agreement, Section 3.01(f)(ix) of the
Fourth Credit Agreement, the filing of financing statements and amendments
to financing statements in accordance with Section 3.01(h)(viii) and (x) of
the Existing Credit Agreement, and the filing of financing statements and
amendments to financing statements in accordance with Section 3.01 and
except as may be required in connection with the disposition of any portion
of the Collateral by laws affecting the offering and sale of securities
generally; provided, however, that no representation or warranty is made as
to any consent of, authorization, approval or other action by, or notice to
or filing with, any banking agency or regulatory body applicable to the
Administrative Agent, the Collateral Agent, the Syndication Agent or the
Documentation Agent.
(e) This Agreement has been, and each of the Notes, each other Loan
Document to which the Borrower is a party when delivered hereunder will
have been, duly executed and delivered by the Borrower. This Agreement is,
and each of the Notes and each other Loan Document to which the Borrower is
a party when delivered hereunder will be, the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability of
creditor's rights generally.
(f) The Consolidated and consolidating balance sheets of Marvel III
and its Subsidiaries as at December 31, 1995, and the related Consolidated
and consolidating statements of income and cash flows of Marvel III and its
Subsidiaries for the fiscal year then ended, accompanied, in the case of
the aforementioned Consolidated balance sheets and related Consolidated
statements of income and cash flows, by an opinion of Ernst & Young,
independent public accountants, and the Consolidated and
79
consolidating balance sheets of Marvel III and its Subsidiaries as at
September 30, 1996, and the related Consolidated and consolidating
statements of income and cash flows of Marvel III and its Subsidiaries for
the nine months then ended, duly certified by the chief financial officer
of Marvel III, copies of which have been furnished to each Lender Party,
fairly present, subject, in the case of said balance sheets as at September
30, 1996, and said statements of income and cash flows for the nine months
then ended, to year-end audit adjustments, the Consolidated and
consolidating financial condition of Marvel III and its Subsidiaries as at
such dates and the Consolidated and consolidating results of the operations
of Marvel III and its Subsidiaries for the periods ended on such dates, all
in accordance with generally accepted accounting principles applied on a
consistent basis.
(g) There is no pending or threatened action, proceeding, governmental
investigation or arbitration affecting any Loan Party, the Bank or any of
their Subsidiaries (other than any Subsidiary of the Borrower ) before any
court, governmental agency or arbitrator, which is reasonably likely to
have a Material Adverse Effect (with respect to clause (a) of the
definition thereof, the term "Person" shall refer to such Loan Party or the
Bank, as the case may be) or that purports to affect the legality, validity
or enforceability of this Agreement, any Note, any other Loan Document or
any Related Document or the consummation of the transactions contemplated
hereby or thereby.
(h) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock and no proceeds of
any Advance or drawings under any Letter of Credit will be used to purchase
or carry any Margin Stock (other than the Xxxxxxx Worldwide XXXXX, common
stock of Xxxxxxx or the New Marvel Shares), or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock.
(i) No proceeds of any Advance or drawings under any Letter of Credit
will be used to acquire any equity security of a class that is registered
pursuant to Section 12 of the Exchange Act (other than the Xxxxxxx
Worldwide XXXXX, common stock of Xxxxxxx and the New Marvel Shares).
(j) The Borrower and its ERISA Affiliates are in compliance in all
material respects with the applicable provisions of ERISA and the Code with
respect to each Plan thereof. No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan of the Borrower or any of its
ERISA Affiliates. The amount of all Unfunded Pension Liabilities under all
Plans of the Borrower and its ERISA Affiliates does not exceed $60,000,000.
None of the Borrower or any of its ERISA Affiliates has made contributions
or incurred any Withdrawal Liability to any Multiemployer
80
Plan within the past five years, and it is not reasonably expected that
such contributions shall be made or required or that such liability shall
be incurred in any such case in amounts or under circumstances that would
be reasonably likely to result in a material liability to the Borrower or
any of its ERISA Affiliates. Schedule B (Actuarial Information) to the 1995
annual report (Form 5500 Series) for each Plan of the Borrower and each of
its ERISA Affiliates, copies of which have been filed with the Internal
Revenue Service and furnished or made available to the Lender Parties, is
complete and accurate in all material respects and fairly presents the
funding status of such Plan, and since the date of such Schedule B there
has been no material adverse change in such funding status. The obligations
of the Borrower and its Subsidiaries for post-retirement benefits to be
provided under Plans which are welfare benefit plans (as defined in Section
3(1) of ERISA) are not reasonably likely to have a Material Adverse Effect
(in the case of clause (a) of the definition thereof, the term "Person"
shall refer to the Borrower).
(k) The operations and properties of the Borrower are in substantial
compliance with all Environmental Laws, all necessary Environmental Permits
have been obtained and are in effect for the operations and properties of
the Borrower and the Borrower is in compliance with all such Environmental
Permits, except, as to all of the above, where the failure to do so would
not be reasonably likely to have a Material Adverse Effect (in the case of
clause (a) of the definition thereof, the term "Person" shall refer to the
Borrower); and no circumstances exist that are reasonably likely to (i)
form the basis of an Environmental Action against the Borrower or any of
its properties or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that would, in the case of either (i) or (ii) above, be
reasonably likely to have a Material Adverse Effect (in the case of clause
(a) of the definition thereof, the term "Person" shall refer to the
Borrower).
(l) The Borrower has filed, has caused to be filed or has been
included in all tax returns (Federal, state, local and foreign) required to
be filed and has paid all taxes shown thereon to be due, together with
applicable interest and penalties.
(m) The Borrower is not an "investment company," or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended. Neither the making of any Advances, nor the issuance of any
Letters of Credit, nor the application of the proceeds or repayment thereof
by the Borrower, nor the consummation of the other transactions
contemplated hereby, will violate any provision of such Act or any rule,
regulation or order of the Securities and Exchange Commission thereunder.
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(n) The Borrower is Solvent.
(o) Set forth on Schedule III hereto is a complete and accurate list
of all Debt (other than intercompany Debt, Debt under the Loan Documents
and Debt under the Term Credit Agreement and the "Loan Documents" referred
to therein) of the Borrower as of the date hereof, showing as of the date
hereof the principal amount outstanding thereunder; and there is no other
agreement, contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument binding on or affecting the Borrower that imposes
any material Obligation or material restriction on the Borrower.
(p) Set forth on Schedule IV hereto is a complete and accurate list of
all Investments held by the Borrower as of the date hereof, showing as of
the date hereof the amount, obligor or issuer and maturity, if any,
thereof.
SECTION 4.02. Representations and Warranties Applicable to Marvel. On
and after the Marvel Inclusion Date, the representations and warranties
contained in Section 4.01(g), (k), (l) and (m) and in the last sentence of
Section 4.01(c) shall be deemed to also cover Marvel and its Subsidiaries as if
such Persons were explicitly referred to in such Sections.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and, on and after the Marvel
Inclusion Date, cause Marvel and each of its Subsidiaries to comply, in all
material respects with all applicable laws, rules, regulations and orders
(such compliance to include, without limitation, paying before the same
become delinquent all taxes, assessments and governmental charges imposed
upon it or upon its property except to the extent contested in good faith),
the failure to comply with which would, individually or in the aggregate,
be reasonably likely to have a Material Adverse Effect (with respect to
clause (a) of the definition thereof, the term "Person" shall refer to the
Borrower).
(b) Compliance with Environmental Laws. Comply and, on and after the
Marvel Inclusion Date, cause Marvel and each of its Subsidiaries and all
lessees and all other Persons occupying its properties to comply, in all
material respects, with all
82
Environmental Laws and Environmental Permits applicable to its operations
and properties; obtain and renew all Environmental Permits necessary for
its operations and properties; and conduct, and cause, on and after the
Marvel Inclusion Date, Marvel and each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that the
Borrower and, on and after the Marvel Inclusion Date, Marvel and its
Subsidiaries shall not be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
(c) Maintenance of Insurance. Maintain, and, on and after the Marvel
Inclusion Date, cause Marvel and each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning similar properties in
the same general areas in which the Borrower, Marvel or such Subsidiary
operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and, on and after the Marvel Inclusion Date, cause Marvel to preserve and
maintain, its corporate existence, rights (charter and statutory) and
franchises; provided, however, that neither the Borrower nor Marvel shall
be required to preserve any of its rights or franchises if the Board of
Directors of the Borrower (or, in the case of Marvel, the executive
committee of the Board of Directors of Marvel) shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Borrower or Marvel, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to the Borrower, Marvel or the
Lender Parties.
(e) Visitation Rights. At any reasonable time and from time to time,
upon reasonable prior notice, permit the Administrative Agent or any of the
Lender Parties or any agents or representatives thereof, to the extent
reasonably requested to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower
and, on and after the Marvel Inclusion Date, Marvel and its Subsidiaries,
and to discuss the affairs, finances and accounts of the Borrower and, on
and after the Marvel Inclusion Date, Marvel and its Subsidiaries with any
of their officers or directors and with their independent certified public
accountants.
(f) Keeping of Books. Keep, and cause, on and after the Marvel
Inclusion Date, Marvel and each of its Subsidiaries to keep, proper books
of record and account, in which full and correct entries shall be made of
all financial transactions and the
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assets and business of the Borrower, Marvel and each such Subsidiary to the
extent necessary to permit the preparation of the financial statements
required to be delivered hereunder.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause,
on and after the Marvel Inclusion Date, Marvel and each of its Subsidiaries
to maintain and preserve, all of its properties that are used or useful in
the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
(h) Termination of Financing Statements. Upon the request of the
Administrative Agent, and at the expense of the Borrower, within 10 days
after such request, furnish to the Administrative Agent proper termination
statements on Form UCC-3 covering such financing statements as the
Administrative Agent may reasonably request that were listed in the
completed requests for information referred to in Section 3.01(k)(ix)(2).
(i) Collateral Account. Maintain the Borrower Collateral Account and
the L/C Cash Collateral Account with Citibank pursuant to the terms of the
Borrower Security Agreement.
(j) Reporting Requirements. Furnish to the Lender Parties through the
Administrative Agent:
(i) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of earnings, cash flows and stockholders' equity of the Borrower and
its Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified
(subject to normal year-end audit adjustment and the absence of
footnotes) on behalf of the Borrower by the chief financial officer of
the Borrower;
(ii) as soon as available and in any event within 105 days after
the end of each fiscal year of the Borrower, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
containing financial statements for such year certified in a manner
reasonably acceptable to the Mafco Finance Required Lenders by Ernst &
Young or other independent public accountants reasonably acceptable to
the Mafco Finance Required Lenders;
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(iii) together with each delivery of financial statements
pursuant to clauses (i) and (ii) above, a certificate executed on
behalf of the Borrower by a senior officer of the Borrower stating
that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take with
respect thereto;
(iv) as soon as possible and in any event within five days after
knowledge of the occurrence of each Default continuing on the date of
such statement, a statement executed on behalf of the Borrower by the
chief financial officer of the Borrower setting forth details of such
Default and the action which the Borrower has taken and proposes to
take with respect thereto;
(v) as soon as available and in any event no later than February
1 of each fiscal year of the Bank, forecasts prepared by management of
the Bank, in form satisfactory to the Administrative Agent, of balance
sheets and income statements on a quarterly basis for the term of the
Facilities;
(vi) promptly after the sending or filing thereof, copies of any
filings and statements that the Borrower or any Subsidiary of the
Borrower files with the Securities and Exchange Commission or any
national securities exchange;
(vii) promptly and in any event within (A) thirty days after the
Borrower knows or has reason to know that any ERISA Event with respect
to the Borrower or any of its ERISA Affiliates has occurred, a
statement describing such ERISA Event and the action, if any, that the
Borrower or such ERISA Affiliate proposes to take with respect
thereto, (B) thirty days either after receipt thereof by the Borrower
or after the Borrower knows or has reason to know of the receipt
thereof by any of its ERISA Affiliates from the sponsor of a
Multiemployer Plan of the Borrower or any of its ERISA Affiliates, a
copy of each notice received by any such Person concerning the
imposition of Withdrawal Liability upon such Person, the
reorganization or termination of such Multiemployer Plan, or the
amount of the liability incurred, or that may be incurred, by the
Borrower or any of its ERISA Affiliates in connection with any such
event and (C) ten Business Days either after receipt thereof by the
Borrower or after the Borrower knows or has reason to know of the
receipt thereof by any of its ERISA Affiliates, copies of each notice
from the PBGC stating its intention to terminate any Plan of the
Borrower or any of its ERISA Affiliates or to have a trustee appointed
to administer any such Plan, provided that in the case of any event
described in clauses (A), (B) or (C) hereof, such
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event shall have a Material Adverse Effect (with respect to clause (a)
of the definition thereof, the term "Person" shall refer to the
Borrower);
(viii) in the event of any change in GAAP from the date of the
annual financial statements referred to in Section 4.01(f) and upon
delivery of any financial statement required to be furnished under
clauses (i) or (ii) of this Section 5.01(j), a statement of
reconciliation conforming any information contained in such financial
statement with GAAP as in effect on the date of the annual financial
statements referred to in Section 4.01(f);
(ix) promptly upon any officer of the Borrower obtaining
knowledge thereof, written notice of (A) the institution or
non-frivolous threat of any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower or any
of its Subsidiaries or any property of the Borrower or any of its
Subsidiaries (any such action, suit, proceeding, investigation or
arbitration being a "Proceeding") or (B) any material development in
any Proceeding that is already pending, where such Proceeding or
development has not previously been disclosed by the Borrower
hereunder and would be reasonably likely to have a Material Adverse
Effect (in the case of clause (a) of the definition of Material
Adverse Effect, the term "Person" shall refer to the Borrower);
together in each case with such other information as any Lender
through the Administrative Agent may reasonably request to enable the
Lenders and their counsel to evaluate such matters;
(x) promptly after the furnishing thereof, copies of any material
statement or material report furnished to any other holder of the
securities of the Borrower or, on and after the Marvel Inclusion Date,
of Marvel or of any Subsidiary of Marvel pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise
required to be furnished to the Lenders pursuant to any other clause
of this Section 5.01(j);
(xi) promptly upon receipt thereof, copies of all notices,
requests and other documents received by any Loan Party or any
Subsidiary of any Loan Party under or pursuant to any Related Document
and, from time to time upon request by the Administrative Agent, such
information and reports regarding the Related Documents as the
Administrative Agent may reasonably request;
(xii) within 10 days after receipt, copies of all Revenue Agent
Reports (Internal Revenue Service Form 886), or other written
proposals of the Internal Revenue Service, that propose, determine or
otherwise set forth positive adjustments to the Federal income tax
liability of the affiliated group (within the
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meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the Borrower is a member aggregating $5,000,000 or more;
(xiii) promptly, and in any event within five Business Days after
the due date (with extensions) for filing the final Federal income tax
return in respect of each taxable year, a certificate of the Borrower
(a "Tax Certificate"), signed on behalf of the Borrower by the
President or the chief financial officer of the Borrower, stating that
the common parent of the affiliated group (within the meaning of
Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower
is a member has paid to the Internal Revenue Service or other taxing
authority the full amount that such affiliated group is required to
pay in respect of Federal income tax for such year;
(xiv) promptly after the occurrence thereof, notice of any
condition or occurrence on any property of the Borrower or, on and
after the Marvel Inclusion Date, Marvel or any Subsidiary of Marvel
that results in a material noncompliance by the Borrower, Marvel or
any of Marvel's Subsidiaries with any Environmental Law or
Environmental Permit or would be reasonably likely to (i) form the
basis of an Environmental Action against the Borrower, Marvel or any
of Marvel's Subsidiaries or any such property that would be reasonably
likely to have a Material Adverse Effect (in the case of clause (a) of
the definition of Material Adverse Effect, the term "Person" shall
refer to the Borrower) or (ii) cause any such property to be subject
to any restrictions on ownership, occupancy, use or transferability
under any Environmental Law or Environmental Permit or would be
reasonably likely to (i) form the basis of an Environmental Action
against the Borrower, Marvel or any of Marvel's Subsidiaries or such
property that could have a Material Adverse Effect (in the case of
clause (a) of the definition of Material Adverse Effect, the term
"Person" shall refer to the Borrower);
(xv) promptly after any deposit in the Borrower Collateral
Account, a certificate signed on behalf of the Borrower by the
president or chief financial officer of the Borrower, stating the
amount of such deposit and the source of the funds of such deposit,
together with a schedule in form and substance reasonably satisfactory
to the Administrative Agent setting forth in reasonable detail the
computations and other information on which the amount and source of
such deposit were determined; and
(xvi) such other information respecting the condition (financial
or otherwise), operations, assets or business of the Borrower or any
of its
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Subsidiaries as any Lender Party through the Administrative Agent may
from time to time reasonably request.
(k) Look-Forward Certificate. With respect to each deposit (other than
of income or proceeds of Collateral Investments) to the Collateral Accounts
(other than the Second Mafco Collateral Account and the L/C Cash Collateral
Account), the Borrower shall, within 15 Business Days prior to the date of
such deposit or within five Business Days after the date of such deposit,
deliver a certificate (the "Look-Forward Certificate") to the
Administrative Agent stating that the pro forma amounts available to be
loaned by First Gibraltar to Borrower Parent, together with amounts
received by Mafco pursuant to or in connection with any Related Document,
will not be less than $15 million in any calendar quarter (of which at
least $10 million shall be from amounts available to be loaned by First
Gibraltar to Borrower Parent) and will not be insufficient to pay interest
on the Advances then outstanding, together with a schedule in form
reasonably satisfactory to the Administrative Agent setting forth in
reasonable detail the computations, assumptions and other information on
which such certification is based) (taking into account, among other
things, the Bank's performance to date, the quality of the Bank's assets
and the presence of any agreement with the Bank's regulators including, but
not limited to, an agreement relating to capital, asset quality, dividends
or management); provided, however, that, notwithstanding the foregoing, if
a Look-Forward Certificate has been delivered to the Administrative Agent
within 90 days prior to a deposit in the Mafco Collateral Account of
amounts paid under or in connection with any Related Document or Asset
Sale, the Borrower may, instead of delivering a Look-Forward Certificate to
the Administrative Agent, deliver a certificate (a "Deposit Certificate")
to the Administrative Agent, within 15 Business Days prior to the date of
such deposit or within five Business Days after the date of such deposit,
stating that (x) there has been no adverse change in (1) the financial
condition of each of the Bank and Mafco and its Subsidiaries, taken as a
whole, since the date of the last Look-Forward Certificate that was
delivered to the Administrative Agent or (2) the projections contained in
such Look-Forward Certificate and (y) no event has occurred and is
continuing which constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both.
(l) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates (other than the Borrower or any
of its Subsidiaries) on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person that is not an Affiliate;
provided, however, that for purposes of this Section 5.01(l), the term
"Affiliate" shall not include any officer or director of the Borrower or
such Subsidiary, as the case may be, who does not possess directly or
indirectly the power to vote 5% or
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more of the Voting Stock of the Borrower or its Subsidiaries; provided
further that nothing in this Section 5.01(l) shall restrict the performance
by the parties to the Marvel Tax Sharing Agreements of their respective
obligations thereunder.
(m) Use of Proceeds. Use the proceeds of the Advances for general
corporate purposes of Mafco and its Subsidiaries.
(n) Mafco Tax Group. Maintain its status as a member of the affiliated
group (within the meaning of Section 1504(a)(1) of the Code) of which Mafco
is the common parent.
(o) Net Cash Proceeds. Deposit all of the Net Cash Proceeds received
by the Borrower from and after the Effective Date from Asset Sales (other
than Net Cash Proceeds required to be applied to prepay or repay the
Facilities or the Debt outstanding under the Term Credit Agreement) in the
Mafco Collateral Account.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist any Lien, upon or with
respect to any of its properties, whether now owned or hereafter acquired,
or sign or file under the Uniform Commercial Code of any jurisdiction, a
financing statement that names the Borrower as debtor or sign any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign any right to receive income, other than the following
Liens: (i) Liens created by the Loan Documents or the "Loan Documents"
referred to in the Term Credit Agreement; (ii) the Liens described on
Schedule V provided that in the event any property subject to any such Lien
is released from such Lien, such released property may not thereafter be
subjected to any Lien other than Liens created by the Loan Documents or the
"Loan Documents" referred to in the Term Credit Agreement; (iii)
mechanics', materialmen's, carriers' and similar Liens arising in the
ordinary course of business securing obligations that are not overdue for a
period of more than 30 days or which are being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained; (iv) Liens for taxes, assessments and governmental charges or
levies not yet due and payable or which are being contested in good faith
and by proper proceedings and as to which appropriate reserves are being
maintained; and (v) judgment or other similar Liens, provided that there
shall be no period of more than 10 consecutive days during which a stay of
enforcement of the related judgment shall not be in effect.
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(b) Lease Obligations. Create, incur, assume or suffer to exist any
obligations as lessee (i) for the rental or hire of real or personal
property in connection with any sale and leaseback transaction, or (ii) for
the rental or hire of other real or personal property of any kind under
leases or agreements to lease having an original term of one year or more.
(c) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it.
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose
of any assets or grant any option or other right to purchase, lease or
otherwise acquire any assets except (i) dispositions of obsolete, worn out
or surplus property disposed of in the ordinary course of business, (ii) a
transfer of any Xxxxxxx Worldwide XXXXX held by the Borrower to Xxxxxxx
Worldwide and (iii) sales, leases, transfers or other dispositions of
assets for cash and for no less than fair market value, provided that, in
the case of an Asset Sale, the Borrower complies with the provisions of
Section 5.01(o) in respect of the Net Cash Proceeds of such Asset Sale.
(e) Dividends, Repurchases, Etc. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of its
capital stock or any warrants, rights or options to acquire such capital
stock, now or hereafter outstanding, return any capital to its stockholders
as such, make any distribution of assets, capital stock, warrants, rights,
options, obligations or securities to its stockholders as such, except that
the Borrower may (i) declare and deliver dividends and distributions
payable only in common stock or warrants, rights or options to acquire
common stock, (ii) declare and pay cash dividends to its stockholders in an
amount not to exceed the amount released by the Collateral Agent from the
Borrower Collateral Account pursuant to the provisions of Section 7 of the
Borrower Security Agreement or the proceeds of the Advances and the
proceeds of borrowings under the Term Credit Agreement and (iii) declare
and pay cash dividends to its stockholders in an amount not to exceed the
Net Cash Proceeds received by Mafco and its Subsidiaries from Asset Sales
on and after the Effective Date solely to permit the compliance by Mafco
and its Subsidiaries with the requirements of Section 5.01(o) and Section
7(q) of the Mafco Guaranty.
(f) Investments. Make or hold any Investment in any Person, other than
(i) Investments by the Borrower and its Subsidiaries in Cash Equivalents,
(ii) a loan by the Borrower to Mafco of up to $650,000,000 out of the
proceeds of the Advances and the proceeds of borrowings under the Term
Credit Agreement, (iii) Investments by the Borrower in Mafco or any of its
Subsidiaries in an amount not to exceed the sum of the amount released by
the Collateral Agent from the Borrower Collateral Account
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pursuant to the provisions of Section 7 of the Borrower Security Agreement
plus the aggregate amount of any Investments in the Borrower made by Mafco
or any of its Subsidiaries out of the proceeds from the amount released by
the Collateral Agent from the Mafco Collateral Accounts pursuant to Section
7 of the Mafco Security Agreement, (iv) Investments existing on the date
hereof, (v) contributions by the Borrower of common stock of Marvel to
Marvel III Holdings Inc., Marvel Holdings Inc. or Marvel (Parent) Holdings
Inc., (vi) Investments by the Borrower in the Xxxxxxx Worldwide XXXXX,
(vii) Investments by the Borrower in the New Marvel Shares and (viii)
Investments in Mafco in an amount not to exceed the Net Cash Proceeds
received by Mafco and its Subsidiaries from Asset Sales on and after the
Effective Date solely to permit the compliance by Mafco and its
Subsidiaries with the requirements of Section 5.01(o) and Section 7(q) of
the Mafco Guaranty.
(g) Change in Nature of Business. Engage in any business other than
the ownership of the capital stock of Marvel III Holdings Inc.
(h) Accounting Changes. Make or permit any change in accounting
policies affecting (i) the presentation of financial statements or (ii)
reporting practices, except in either case as required or permitted by
GAAP.
(i) Debt. Create, incur, assume or suffer to exist any Debt other
than: (i) Debt under the Loan Documents and under the Term Credit Agreement
and the "Loan Documents" referred to therein, (ii) endorsement of
negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business and (iii) Debt evidenced by the promissory
note dated March __, 1997 made by the Borrower in favor of C&F Guarantor in
an aggregate principal amount up to $200,000,000.
(j) Charter Amendments. Amend its certificate of incorporation or
bylaws.
(k) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any Debt,
other than the prepayment of the Advances in accordance with the terms of
this Agreement, or amend, modify or change in any manner any term or
condition of any Debt or any agreement relating to such Debt other than (i)
to make mandatory or optional prepayments of the Debt under the Term Credit
Agreement pursuant to the terms thereof or any other Debt permitted
pursuant to the terms of Section 5.02(i), (ii) prepayments of Debt required
by Section 7(q) of the Mafco Guaranty and (iii) amendments, modifications
and changes to the terms and conditions of the Term Credit Agreement
pursuant to its terms.
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(l) Negative Pledge. Enter into or suffer to exist any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any
of its property or assets other than (i) in favor of the Administrative
Agent and the Lender Parties, (ii) any prohibition or condition existing on
the date hereof or (iii) any prohibition or condition contained in the Term
Credit Agreement or the "Loan Documents" referred to therein.
(m) Partnerships. Become a general partner in any general or limited
partnership.
(n) Capital Expenditures. Make any Capital Expenditures.
(o) Issuance of Capital Stock. Issue any capital stock or warrants,
rights or options to acquire such capital stock.
(p) Payment Restrictions. Create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind
on the ability of the Borrower to (i) pay dividends or make any other
distributions on any of the Borrower's capital stock, (ii) make loans or
advances to Mafco or any subsidiary of Mafco or (iii) repay or prepay any
Debt owed by the Borrower other than any (x) consensual encumbrances or
restrictions existing on the date hereof and (y) other consensual
encumbrances or restrictions that are no more onerous than those
encumbrances and restrictions in existence on the date hereof with respect
to the Borrower.
(q) Amendment, Etc. of Related Documents. During such time as Marvel
is a member of the affiliated group (within the meaning of Section
1504(a)(1) of the Code) of which Mafco is the common parent, cancel or
terminate any Related Document to which it is a party or consent to or
accept any cancellation or termination thereof, amend, modify or change in
any manner any term or condition of or give any consent, waiver or approval
thereunder, waive any default under or any breach of any term or condition
of any such Related Document, agree in any manner to any other amendment,
modification or change of any term or condition of any Related Document, or
take any other action in connection with any such Related Document that
would impair the value of the interest or rights of Mafco thereunder or
that would impair the interest or rights of any Agent, the Collateral Agent
or any Lender Party thereunder or permit any of its Subsidiaries to do any
of the foregoing; provided, however, that anything to the contrary in this
sentence notwithstanding, any provision of any Marvel Tax Agreement may be
cancelled, terminated, amended, modified or changed in any manner, or any
consent, waiver or approval thereunder may be given, or any default or
breach thereunder may be waived, in each case, to the extent required
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by or otherwise agreed to with, any governmental agency having regulatory
authority or supervision over any Subsidiary of the Borrower.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of, or interest on,
any Advance or any fees payable to the Administrative Agent or any Lender
hereunder, in each case when the same becomes due and payable, or any Loan
Party shall fail to make any other payment hereunder within five Business
Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party or any FN
Party or under or in connection with any Loan Document or FN Document shall
prove to have been incorrect in any material respect when made or
confirmed; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(h), 5.01(i), 5.01(j),
5.01(k), 5.01(m), 5.01(n), 5.01(o) or 5.02, (ii) Mafco shall fail to
perform or observe any term, covenant or agreement contained in Section
7(i), 7(j), 7(l), 7(o), 7(p), 7(q) or 8 of the Mafco Guaranty, (iii)
Xxxxxxx Guarantor shall fail to perform or observe any term, covenant or
agreement contained in certain Section 7(i), 7(k), 7(m) or 8 of the Xxxxxxx
Guaranty, (iv) Borrower Parent shall fail to perform or observe any term,
covenant or agreement contained in Section 7(j) or 8 of the Borrower Parent
Guaranty, (v) New World Guarantor shall fail to perform or observe any
term, covenant or agreement contained in Section 7(h), 7(j), 7(k) or 8 of
the New World Guaranty, (vii) C&F Guarantor shall fail to perform or
observe any term, covenant or agreement contained in Section 7(h), 7(j),
7(k) or 8 of the C&F Guaranty, (vii) Cigar Guarantor shall fail to perform
or observe any term, covenant or agreement contained in Section 7(h), 7(j),
7(k) or 8 of the Cigar Guaranty, (viii) Flavors Guaranty shall fail to
perform or observe any term, covenant or agreement contained in Section
7(h), 7(j), 7(k) or 8 of the Flavors Guaranty, (ix) Revlon Guarantor shall
fail to perform or observe any term, covenant or agreement contained in
Section 7(h), 7(j) or 8 of the Revlon Guaranty, (x) Revlon Worldwide
Holdings shall fail to perform or observe any term, covenant or agreement
contained in Section ___, ___ or ___ of the Revlon Worldwide Holdings
Guaranty, (xi) on and after the MCG Inclusion Date, MCG shall fail to
perform or
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observe any term, covenant or agreement contained in certain Sections of
the MCG Guaranty substantially identical to the Sections of the Revlon
Worldwide Holdings Guaranty set forth in clause (x) above or (xii) any Loan
Party shall fail to perform or observe any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by the Administrative
Agent or any Lender Party; or
(d) (i) Any A Company, any Designated Operating Company or the Bank
shall fail to pay any principal of or premium or interest on any Debt which
is outstanding in a principal amount of at least $10,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of such A Company,
such Designated Operating Company or the Bank (as the case may be), when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or (ii) any other event
shall occur or condition shall exist (other than (x) during the period from
the date hereof through June 30, 1997, the breach by Marvel of certain
financial covenants for the fiscal quarter ended September 30, 1996, for
the fiscal quarter ended December 31, 1996, for the fiscal quarter ending
March 31, 1997 and for the fiscal quarter ending June 30, 1997 under its
senior bank credit agreements and (y) in the case of the Specified Holding
Company Debt, any event or condition relating to Marvel, Marvel III
Holdings Inc., Marvel (Parent) Holdings Inc. or Marvel Holdings Inc.) under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or (iii) any such
Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to prepay, redeem, purchase or defease
such Debt shall be required to be made, in each case prior to the stated
maturity thereof; or (iv) in the case of any Specified Holding Company
Debt, any event or condition relating to Marvel, Marvel III Holdings Inc.,
Marvel (Parent) Holdings Inc. or Marvel Holdings Inc. shall occur and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate the maturity of such Debt; or
(e) Any A Company, any Designated Operating Company (other than
Marvel) or the Bank shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any A Company, any Designated
Operating Company (other than Marvel) or
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any FN Party seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 45 days, or any of the
actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of
its property) shall occur; or any A Company, any Designated Operating
Company (other than Marvel) or the Bank shall take any corporate action to
authorize any of the actions set forth above in this Section 6.01(e); or
(f) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any A Company, any Designated
Operating Company or the Bank and 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 or
dismissed or bonded pending appeal; provided, however, that any such
judgment or order shall not be an Event of Default under this Section
6.01(f) if and for so long as (i) the entire amount of such judgment or
order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer,
which shall be rated at least "A" by A.M. Best Company, has been notified
of, and has not disputed the claim made for payment of the amount of such
judgment or order; or
(g) Any non-monetary judgment or order shall be rendered against any A
Company, any Designated Operating Company or the Bank that is reasonably
likely to have a Material Adverse Effect (in the case of clause (a) of the
definition thereof, the term "Person" shall refer to the Borrower) and
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 pending appeal; or
(h) Xxxxxx X. Xxxxxxxx (or in the event of his incompetence or death,
his estate, heirs, executor, administrator, committee or other personal
representative) shall cease to beneficially own (i) at least 80% of the
Voting Stock of any A Company, any Designated Operating Company (other than
Marvel, Consolidated Cigar Holdings, PCT and Revlon) or the Bank, (ii) on
and after the Marvel Inclusion Date, at least a majority of the voting
power of the Voting Stock of Marvel, (iii) at least a majority of the
voting
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power of the Voting Stock of Revlon and (iv) on and after the MCG Inclusion
Date, at least a majority of the voting power of the Voting Stock of
Consolidated Cigar Holdings, in each case other than as a result of an
Asset Sale pursuant to which all of the common stock held by Mafco and its
Subsidiaries in any A Company, any Designated Operating Company or the Bank
(or, in any such case, in such Person's direct or indirect parent) is sold
and the Net Cash Proceeds of such Asset Sale is applied in accordance with
the terms of the Loan Documents and the "Loan Documents" referred to in the
Term Credit Agreement; or
(i) Any ERISA Event shall have occurred with respect to Mafco or any
of its ERISA Affiliates and such ERISA Event, together with any and all
other ERISA Events that shall have occurred with respect to Mafco or any of
its ERISA Affiliates, is reasonably likely to have a Material Adverse
Effect (with respect to clause (a) of the definition thereof, the term
"Person" shall refer to Mafco); or
(j) Mafco or any of its ERISA Affiliates shall have been notified by
the sponsor of a Multiemployer Plan of the Borrower or any of its ERISA
Affiliates that it has incurred Withdrawal Liability to such Multiemployer
Plan in an amount that, when aggregated with all other amounts required to
be paid to Multiemployer Plans by Mafco and its ERISA Affiliates as
Withdrawal Liability (determined as of the date of such notification),
exceeds $10,000,000 or requires payments exceeding $10,000,000 per annum;
or
(k) Mafco or any of its ERISA Affiliates shall have been notified by
the sponsor of a Multiemployer Plan of the Borrower or any of its ERISA
Affiliates that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and as a result of
such reorganization or termination the aggregate annual contributions of
Mafco and its ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding $10,000,000; or
(l) Any provision of any Loan Document, Related Document or FN
Document after delivery thereof pursuant to the Original Credit Agreement,
the Second Credit Agreement, the Third Credit Agreement, the Fourth Credit
Agreement, the Existing Credit Agreement, Section 3.01 hereof or pursuant
to the definition of "MCG Inclusion Date" shall for any reason (other than
pursuant to the terms thereof or, in the case of the Marvel Tax Agreements,
in accordance with the terms of this Agreement and the Term Credit
Agreement) cease to be valid and binding on or enforceable against any
party to it, or any party to any such document shall so state in writing;
or
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(m) Any Collateral Document after delivery thereof pursuant to the
Original Credit Agreement, the Second Credit Agreement, the Third Credit
Agreement, the Fourth Credit Agreement, the Existing Credit Agreement,
Section 3.01 hereof or the definition of "MCG Inclusion Date" shall for any
reason (other than pursuant to the terms thereof) cease to create a valid
and perfected first priority Lien on the Collateral purported to be covered
thereby; or
(n) Any provision of the FN Holdings Debt Document, the FN Holdings
New Debt Document, the Second New FN Holdings Debt Document, the FN
Holdings Preferred Stock or the FN Parent Debt Document shall be
terminated, amended, waived or otherwise modified without the consent of
the Mafco Finance Required Lenders or any provision of the First Gibraltar
Charter Document shall be amended or modified without the consent of the
Mafco Finance Required Lenders (other than as permitted by the terms of the
Mafco Guaranty); or
(o) The Bank fails to maintain the minimum capital and leverage ratios
required as of the Effective Date for the Bank to be considered as a "well
capitalized" "savings association" pursuant to 12 U.S.C. Section 1831o and
12 C.F.R. Section 565, as such Sections may be amended, reenacted or
redesignated from time to time; or
(p) (i) The common stock of any Designated Operating Company (other
than Marvel, Consolidated Cigar Holdings and PCT) trading on the date
hereof shall cease to be publicly traded on the New York Stock Exchange;
(ii) at any time prior to the receipt by Mafco and its Subsidiaries after
the Effective Date of Net Cash Proceeds in an amount at least equal to $365
million from the sale, monetization or other disposal of News Corp.
Preferred ADRs, News Corp. Preferred ADRs shall cease to be publicly
traded; (iii) on and after the Marvel Inclusion Date, the common stock of
Marvel shall cease to be publicly traded on the New York Stock Exchange or
the Nasdaq National Market System; or (iv) on and after the MCG Inclusion
Date, the common stock of Consolidated Cigar Holdings shall cease to be
publicly traded on the New York Stock Exchange; or
(q) Xxxxxx X. Xxxx shall beneficially or legally own shares of the
common stock of FN Holdings other than shares of the Class B Common Stock;
or
(r) Any Person party to the Related Documents shall fail to directly
deposit in the Mafco Collateral Account (i) a payment to Mafco under any
Related Document (which payment is required to be made and is permitted
under each indenture and credit agreement to which such Person is a party)
or (ii) a loan to Mafco of the proceeds of any payment received by such
Person under any Related Document (which loan is
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required to be made and is permitted under each indenture and credit
agreement to which such Person is a party) and such failure shall remain
unremedied for three Business Days other than any such failure which
results from a termination or amendment of any Related Document in
accordance with the terms of this Agreement and the Term Credit Agreement;
or
(s) (i) Mafco shall fail to furnish to the Administrative Agent and
the Lender Parties on or prior to December 1, 1997, a business plan setting
forth, in respect of all of the Debt of Mafco and its Subsidiaries (other
than Debt of the Designated Operating Companies, the Bank, Marvel, Marvel
III Holdings Inc., Marvel (Parent) Holdings Inc., Marvel Holdings Inc.,
Meridian Sports Incorporated and their respective Subsidiaries) that is
scheduled to come due during calendar year 1998 and 1999, the method by
which all such Debt shall be repaid, prepaid, redeemed or refinanced on a
timely basis, including without limitation, through Asset Sales, issuances
of Debt, issuances of equity or contributions to capital, in each case in
reasonable detail as to the identity of the assets to be sold, the issuer
of the Debt or equity and such other details as the Mafco Finance Required
Lenders shall request or (ii) the Mafco Finance Required Lenders shall not
have approved the form and substance of such business plan on or prior to
December 31, 1997; or
(t) the MCG Inclusion Date shall fail to occur within six months
following the Effective Date;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitment of each Lender to make Advances (other than Letter of
Credit Advances by the Issuing Bank or a Lender pursuant to Section 2.03(c))
and of the Issuing Bank to issue Letters of Credit to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, declare the
Notes, all interest thereon and all other amounts payable under this Agreement
to be forthwith due and payable, whereupon the Notes, all such interest and all
such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided, however, that, in the event
of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender
to make Advances (other than Letter of Credit Advances by an Issuing Bank or a
Lender pursuant to Section 2.03(c)) and of each Issuing Bank to issue Letters
of Credit shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
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SECTION 6.02. Actions in Respect of the Letters of Credit upon Event
of Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office
designated in such demand, for deposit in the L/C Cash Collateral Account, an
amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding. If at any time the Administrative Agent determines that any funds
held in the L/C Cash Collateral Account are subject to any right or claim of
any Person other than the Administrative Agent and the Lender Parties or that
the total amount of such funds is less than the aggregate Available Amount of
all Letters of Credit then outstanding, the Borrower will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the L/C Cash Collateral Account,
an amount equal to the excess of (a) such aggregate Available Amount over (b)
the total amount of funds, if any, then held in the L/C Cash Collateral Account
that the Administrative Agent determines to be free and clear of any such right
and claim.
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 7.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender and the Issuing Bank (if applicable)) hereby appoints
and authorizes each of the Administrative Agent and the Collateral 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 and the Collateral Agent, as the case may be, by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), each of the
Administrative Agent and the Collateral Agent 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 the Required Lenders, and such instructions
shall be binding upon all Lender Parties and all holders of Notes; provided,
however, that neither the Administrative Agent nor the Collateral Agent shall
be required to take any action which exposes the Administrative Agent or the
Collateral Agent, as the case may be, to personal liability or which is
contrary to this Agreement or applicable law. Each of the Administrative Agent
and the Collateral Agent agrees to give to each Lender Party prompt notice of
each notice and other report given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Administrative Agent's and Collateral Agent's Reliance,
Etc. Neither the Administrative Agent nor the Collateral Agent nor any of their
respective directors, officers, agents or employees, shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their
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own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, each of the Administrative Agent and the
Collateral Agent: (i) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
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; (iii) makes
no warranty or representation to any Lender Party and shall not be responsible
to any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (iv) shall
not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of the Loan Documents
on the part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to any Lender Party for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with the Loan
Documents or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of the Loan Documents by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though it were not the Administrative Agent
or the Collateral Agent and the term "Lender Party" or "Lender Parties" shall,
unless otherwise expressly indicated, include Citibank hereunder in its
individual capacity. Citibank and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or
own securities of the Borrower or any such Subsidiary, all as if Citibank were
not the Administrative Agent or the Collateral Agent and without any duty to
account therefor to the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon either the
Administrative Agent or the Collateral Agent or any other Lender Party and
based on the financial statements referred to in Section 4.01(f) and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender Party also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Collateral Agent or any other Lender Party 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.
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SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees
to indemnify each of the Administrative Agent and the Collateral Agent (in each
case to the extent not promptly reimbursed by the Borrower) from and against
such Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Administrative Agent or
the Collateral Agent, as the case may be, in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative
Agent or the Collateral Agent, as the case may be, under the Loan Documents;
provided, however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's or the Collateral Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender Party agrees to reimburse the
Administrative Agent and the Collateral Agent promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees
and expenses of counsel) payable by the Borrower under Section 8.04, to the
extent that the Administrative Agent or the Collateral Agent, as the case may
be, is not promptly reimbursed for such costs and expenses by the Borrower. For
purposes of this Section 7.05(a), the Lender Parties' respective ratable shares
of any amount shall be determined, at any time, according to the sum of (a) the
aggregate principal amount of the Advances outstanding at such time and owing
to the respective Lender Parties, (b) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding at such time
and (c) their respective Unused Revolving Credit Commitments at such time;
provided that the aggregate principal amount of Letter of Credit Advances owing
to the Issuing Bank shall be considered to be owed to the Lenders ratably in
accordance with their respective Revolving Credit Commitments. In the event
that any Defaulted Advance shall be owing by any Defaulting Lender at any time,
such Lender Party's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(a) to the extent of the amount of such
Defaulted Advance. The failure of any Lender Party to reimburse the
Administrative Agent or the Collateral Agent promptly upon demand for its
ratable share of any amount required to be paid by the Lender Party to the
Administrative Agent or the Collateral Agent, as the case may be, as provided
herein shall not relieve any other Lender Party of its obligation hereunder to
reimburse the Administrative Agent or the Collateral Agent, as the case may be,
for its ratable share of such amount, but no Lender Party shall be responsible
for the failure of any other Lender Party to reimburse the Administrative Agent
or the Collateral Agent, as the case may be, for such other Lender Party's
ratable share of such amount. Without prejudice to the survival of any other
agreement of any Lender Party hereunder, the agreement and obligations of each
Lender Party contained in this Section 7.05(a) shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the other Loan Documents.
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(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however, that no Lender
Party shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Issuing Bank's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender Party agrees to reimburse the
Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower. For purposes
of this Section 7.05(b), the Lender Party's respective ratable shares of any
amount shall be determined, at any time, according to the sum of (a) the
aggregate principal amount of the Advances outstanding at such time and owing
to the respective Lender Parties, (b) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding at such time
plus (c) their respective Unused Revolving Credit Commitments at such time;
provided that the aggregate principal amount of Letter of Credit Advances owing
to the Issuing Bank shall be considered to be owed to the Lenders ratably in
accordance with their respective Revolving Credit Commitments. In the event
that any Defaulted Advance shall be owing by any Defaulting Lender at any time,
such Lender Party's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(b) to the extent of the amount of such
Defaulted Advance. The failure of any Lender Party to reimburse the Issuing
Bank promptly upon demand for its ratable share of any amount required to be
paid by the Lender Parties to the Issuing Bank as provided herein shall not
relieve any other Lender Party of its obligation hereunder to reimburse the
Issuing Bank for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse the Issuing
Bank for such other Lender Party's ratable share of such amount. Without
prejudice to the survival of any other agreement of any Lender Party hereunder,
the agreement and obligations of each Lender contained in this Section 7.05(b)
shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Administrative Agent and Collateral Agent.
Each of the Administrative Agent and the Collateral Agent may resign at any
time by giving written notice thereof to the Lender Parties and the Borrower
and may be removed at any time with or without cause by, in the case of the
Administrative Agent, the Required Lenders and, in the case of the Collateral
Agent, the Mafco Finance Required Lenders. Upon any such resignation or
removal, the Required Lenders or the Mafco Finance Required Lenders shall have
the right
102
to appoint, with the consent of the Borrower, a successor Administrative Agent
or Collateral Agent, respectively, which shall be a Lender, or if no Lender
consents to act as Administrative Agent or Collateral Agent, as the case may
be, hereunder, an institution that would be permitted to be an Eligible
Assignee hereunder. If no successor Administrative Agent or Collateral Agent,
as the case may be, shall have been so appointed by the Required Lenders or the
Mafco Finance Required Lenders, as the case may be, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's or
Collateral Agent's giving of notice of resignation or the Required Lenders' or
the Mafco Finance Required Lenders' removal of the retiring Administrative
Agent or Collateral Agent, then the retiring Administrative Agent, or
Collateral Agent, as the case may be, may, on behalf of the Lender Parties,
appoint a successor Administrative Agent or Collateral Agent, as the case may
be, which shall be a commercial bank that is acceptable to the Borrower (which
shall not unreasonably withhold its approval). Upon the acceptance of any
appointment as Administrative Agent or Collateral Agent, as the case may be,
thereunder by a successor Administrative Agent or Collateral Agent, as the case
may be, such successor Administrative Agent or Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent or Collateral Agent, as the case may be,
and the retiring Administrative Agent or Collateral Agent, as the case may be,
shall be discharged from its duties and obligations under the Loan Documents.
After any retiring Administrative Agent's or Collateral Agent's resignation or
removal hereunder as Administrative Agent or Collateral Agent, the provisions
of this Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent or Collateral
Agent, as the case may be.
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ARTICLE VIII
MISCELLANEOUS
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SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Mafco Finance Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by each of the Lender Parties
(other than any Lender Party which is, at such time, a Defaulting Lender) and
the Term Credit Agreement Lenders (other than any Term Credit Agreement Lender
which is, at such time, a "Defaulting Lender" under the Term Credit Agreement),
do any of the following: (i) waive any of the conditions specified in Section
3.01 or 3.02, (ii) change the definition of the term "Mafco Finance Required
Lenders", (iii) release any material portion of the Collateral or permit the
creation, incurrence, assumption or existence of any Lien on any material
portion of the Collateral other than (A) releases of any material portion of
the Collateral or the creation, incurrence, assumption or existence of any such
Lien in connection with Asset Sales (which shall include, for purposes of this
Section 8.01, sales, monetizations or other disposals of the News Corp.
Preferred ADRs) the Net Cash Proceeds of which are applied as contemplated by
the Loan Documents and the "Loan Documents" referred to in the Term Credit
Agreement, (B) releases of the News Corp. Preferred ADRs pursuant to the terms
of the Loan Documents and the "Loan Documents" under the Term Credit Agreement
and (C) the Liens created by the Collateral Documents and the Liens permitted
by Section 5.02(a), Section 8(a) of the Borrower Parent Guaranty, Section 8(a)
of the Xxxxxxx Guaranty, Section 8(a) of the Mafco Guaranty, Section 8(a) of
the C&F Guaranty, Section 8(a) of the Cigar Guaranty, Section 8(a) of the
Flavors Guaranty, Section 8(a) of the New World Guaranty, Section 8(a) of the
Revlon Guaranty, Section 8(a) of the Revlon Worldwide Holdings Guaranty and, on
and after the MCG Inclusion Date, the comparable provision of the MCG Guaranty,
(iv) amend this Section 8.01, (v) increase the Commitments of the Lenders or
subject the Lenders to any additional obligations, (vi) reduce the principal
of, or interest on, the Notes or any fees or other amounts payable hereunder or
(vii) postpone any date fixed for any mandatory reduction in the Commitments or
for any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder or amend Section 2.04, 2.05(b) or 2.06(b) (other than
2.06(b)(v)); provided further that, notwithstanding the foregoing, Section
2.05(b)(ii) may be amended by the Supermajority Lenders and the "Supermajority
Lenders" under the Term Credit Agreement in connection with the issuance of
preferred stock by FN Parent and/or FN Holdings if all of the proceeds of such
issuance are used to prepay or repay in full the Debt outstanding under the
First Gibraltar Credit Agreement; provided further that no change may be made
to the definition of the term "Required Lenders" unless such change is in
writing and signed by all of the Lender Parties (other than any Lender Party
which is, at such time, a Defaulting Lender); provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders and Term Credit Agreement
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note; provided further that no
amendment, waiver or consent
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shall, unless in writing and signed by the Collateral Agent in addition to the
Lenders and Term Credit Agreement Lenders required above to take such action,
affect the rights or duties of the Collateral Agent under this Agreement;
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Issuing Bank, in addition to the Lenders required above to
take such action, affect the rights or obligations of the Issuing Bank under
this Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at c/o MacAndrews and
Forbes Holdings Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel, if to any Financial Institution at its Domestic Lending Office
on Schedule I hereto; if to any other Lender Party, at the address specified in
the Assignment and Acceptance pursuant to which it became a Lender Party; and
if to the Administrative Agent or the Collateral Agent, at its address at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx, or, as to the
Borrower, the Administrative Agent or the Collateral Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower, the
Administrative Agent and the Collateral Agent. All such notices and
communications shall be effective (i) when received, if mailed or delivered or
telecopied (including machine acknowledgment), or (ii) when delivered to the
telegraph company, confirmed by telex answerback or delivered to the cable
company, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II or VII shall not be effective until
received by the Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender Party or the Administrative Agent or the Collateral Agent to exercise,
and no delay in exercising, any right hereunder or under any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.04. Costs; Expenses. (a) The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent and the Collateral Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of the Loan Documents and
the other documents to be delivered hereunder (including, without limitation,
(A) all due diligence, transportation, computer, duplication, appraisal, audit
and insurance expenses and fees and expenses of consultants engaged with the
prior consent of the Borrower (which consent shall not be unreasonably
withheld) and (B) the reasonable fees and out-of-pocket expenses of counsel for
the Administrative Agent with
106
respect thereto, with respect to advising the Administrative Agent and the
Collateral Agent as to their respective rights and responsibilities, or the
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with the Borrower or with other creditors of the
Borrower arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in, monitoring or
otherwise participating in any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally and any proceeding ancillary
thereto). The Borrower further agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Administrative Agent, the Collateral
Agent and the Lender Parties in connection with the enforcement of the Loan
Documents and the other documents to be delivered hereunder, whether in action,
suit, litigation, any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally or otherwise (including, without
limitation, the reasonable fees (including the allocated costs of internal
counsel) and reasonable expenses of counsel for the Administrative Agent, the
Collateral Agent and each Lender Party with respect thereto) and expenses in
connection with the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of any Eurodollar Rate Advance is made
by the Borrower to or for the account of a Lender Party other than on the last
day of the Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.10(c) or 2.11, acceleration of the maturity of
the Notes pursuant to Section 6.01 or for any other reason, the Borrower shall,
upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses which it may reasonably incur as a result
of such payment, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender Party to fund or maintain such Advance.
(c) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent and each Lender Party and each of their affiliates and their
officers, directors, trustees, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (or in connection with the preparation for a defense of) any
investigation, litigation or proceeding arising out of, related to or in
connection with this Agreement and the transactions contemplated hereby,
whether or not an Indemnified Party is a party thereto, whether or not the
transactions contemplated hereby are consummated, whether or not any such
claim, investigation, litigation or proceeding is brought by the Borrower or
any other person and whether or not such Indemnified Party is a Lender Party at
such time) except (i) to the extent such claim, damage, loss, liability or
expense (x) is found in a final, non-appealable judgment by a court of
107
competent jurisdiction (a "Final Judgment") to have resulted from such
Indemnified Party's gross negligence or willful misconduct or (y) arises from
any legal proceedings commenced against any Lender Party by any other Lender
Party (in its capacity as such and not as Administrative Agent, Collateral
Agent, Documentation Agent or Syndication Agent), and (ii) in the case of any
litigation brought by the Borrower (A) seeking a judgment against any
Indemnified Party for any wrongful act or omission of such Indemnified Party
and (B) in which a Final Judgment is rendered in the Borrower's favor against
such Indemnified Party, the provisions of this paragraph will not be available
to provide indemnification for any damage, loss, liability or expense incurred
by such Indemnified Party in connection with such litigation described in
clause (i) or in connection with any claim for which Final Judgment is rendered
in the Borrower's favor in a litigation described in clause (ii) of this
Section 8.04(c).
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
Party to or for the credit or the account of the Borrower against any and all
of the obligations of the Borrower to such Lender Party now or hereafter
existing under this Agreement and the Note or Notes held by such Lender Party,
whether or not such Lender Party shall have made any demand under this
Agreement or such Note or Notes and although such obligations may be unmatured.
Each Lender Party agrees promptly to notify the Borrower after any such set-off
and application shall be made by such Lender Party, provided that the failure
to give such notice shall not affect the validity of such set-off and
application; provided further that no Lender Party shall exercise any such
right of set-off or any other right of set-off without the prior consent of the
Administrative Agent. The rights of each Lender Party under this Section 8.05
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which such Lender Party may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Financial
Institution that such Financial Institution has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender Party and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Administrative Agent and the Required Lenders.
108
SECTION 8.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Borrower pursuant to Section 2.15, will assign to one or
more banks or other entities all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a uniform, and not
a varying, percentage of all rights and obligations under and in respect of the
Facilities; (ii) the amount of the Commitment of the assigning Lender 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 be
less than $10,000,000 and shall be an integral multiple of $1,000,000 in excess
thereof, or shall be an assignment to another Lender or an assignment of all of
the assigning Lender's rights and obligations hereunder and under the Notes,
(iii) each such assignment shall be to another Lender, an Affiliate of the
assigning Lender or to an Eligible Assignee, (iv) each such assignment made as
a result of a demand by the Borrower pursuant to Section 2.15 shall be arranged
by the Borrower after consultation with the Administrative Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to Section
2.15 unless and until such Lender shall have received one or more payments from
either the Borrower or one or more Eligible Assignees in an aggregate amount at
least equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of payment
of such principal amount and all other amounts payable to such Lender under
this Agreement, (vi) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes subject
to such assignment and a processing and recordation fee of $3,000 from the
assignee and (vii) no such assignments shall be permitted without the consent
of the Administrative Agent and the Borrower (such consent not to be
unreasonably withheld). Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the
109
other parties hereto as follows: (i) other than as provided in such Assignment
and Acceptance, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01(f) and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Administrative
Agent, the Collateral Agent, such assigning Lender 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; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each of the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the
Administrative Agent or the Collateral Agent, as the case may be, by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
under each Facility to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent, and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the
110
Administrative Agent in exchange for the surrendered Note or Notes a new Note
or Notes to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it under a Facility pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder
under such Facility, a new Note to the order of the assigning Lender in an
amount equal to such Commitment retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A.
(e) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) except in the case of an
assignment to a Person that immediately prior to such assignment was an Issuing
Bank or an assignment of all of an Issuing Bank's rights and obligations under
this Agreement, the amount of the Letter of Credit Commitment of the assigning
Issuing Bank 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 be less than $3,000,000 and shall be in an integral multiple
of $1,000,000 in excess thereof, (ii) each such assignment shall be to an
Eligible Assignee, (iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3000 and (iv) no such assignments shall be permitted
without the consent of the Administrative Agent and the Borrower (such consent
not to be unreasonably withheld).
(f) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Borrower,
the Administrative Agent, the Collateral Agent 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 and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure
by the Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce or postpone any date fixed for payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
111
(g) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf
of the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree pursuant to an
agreement substantially in the form of Exhibit G to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Governing Law; Submission to Jurisdiction. (a) This
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York
City, and any appellate court thereof, in any action or proceeding arising out
of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Subject to the foregoing and to paragraph (c) below, nothing in this Agreement
shall affect any right that any party hereto may otherwise have to bring any
action or proceeding relating to this Agreement against any other party hereto
in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court and the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) The Borrower agrees that service of process may be made on the
Borrower by personal service of a copy of the summons and complaint or other
legal process in any such suit, action or proceeding, or by registered or
certified mail (postage prepaid) to
112
the address of the Borrower specified in Section 8.02, or by any other method
of service provided for under the applicable laws in effect in the State of New
York.
SECTION 8.09. Execution in Counterparts. This Agreement 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
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.10. No Liability of the Issuing Bank. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither the
Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against the Issuing Bank, and the Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were
caused by (i) the Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) the Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, the
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE DOCUMENTATION AGENT, THE
SYNDICATION AGENT AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE
DOCUMENTATION AGENT, THE
113
SYNDICATION AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MAFCO FINANCE CORP.
By
----------------------------------
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent
By
----------------------------------
Name:
Title:
$400,000,000
AMENDED AND RESTATED TERM CREDIT AGREEMENT
Dated as of March 20, 1997
Among
MAFCO FINANCE CORP.
(formerly known as MARVEL IV HOLDINGS INC.),
as Borrower,
-----------
THE FINANCIAL INSTITUTIONS AND
THE INITIAL ISSUING BANK NAMED HEREIN,
as Financial Institutions and
-----------------------------
Initial Issuing Bank,
--------------------
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent,
--------------------------------------------
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent,
----------------------
and
CHASE SECURITIES INC.,
as Syndication Agent
--------------------
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms....................................... 2
SECTION 1.02. Computation of Time Periods................................. 36
SECTION 1.03. Accounting Terms............................................ 36
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Term Advances........................................... 36
SECTION 2.02. Making the Advances......................................... 36
SECTION 2.03. Repayment................................................... 38
SECTION 2.04. Optional Termination or Reduction of the Commitments........ 38
SECTION 2.05. Prepayments................................................. 38
SECTION 2.06. Interest.................................................... 42
SECTION 2.07. Interest Rate Determination................................. 43
SECTION 2.08. Fees .................................................... 44
SECTION 2.09. Increased Costs; Illegality................................. 44
SECTION 2.10. Conversion of Advances...................................... 46
SECTION 2.11. Payments and Computations................................... 47
SECTION 2.12. Taxes .................................................... 48
SECTION 2.13. Sharing of Payments, Etc.................................... 51
SECTION 2.14. Removal of Lender........................................... 51
SECTION 2.15. Defaulting Lender........................................... 51
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date...................... 54
SECTION 3.02. Conditions Precedent to Each Borrowing...................... 63
SECTION 3.03. Determinations Under Section 3.01........................... 64
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
ii
Page
SECTION 4.01. Representations and Warranties of the Borrower.............. 64
SECTION 4.02. Representations and Warranties Applicable to Marvel......... 69
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants....................................... 69
(a) Compliance with Laws, Etc............................ 69
(b) Compliance with Environmental Laws................... 69
(c) Maintenance of Insurance............................. 70
(d) Preservation of Corporate Existence, Etc............. 70
(e) Visitation Rights.................................... 70
(f) Keeping of Books..................................... 70
(g) Maintenance of Properties, Etc....................... 70
(h) Termination of Financing Statements.................. 71
(i) Collateral Account................................... 71
(j) Reporting Requirements............................... 71
(k) Look-Forward Certificate............................. 74
(l) Transactions with Affiliates......................... 75
(m) Mafco Tax Group...................................... 75
(n) Net Cash Proceeds.................................... 75
SECTION 5.02. Negative Covenants.......................................... 76
(a) Liens, Etc........................................... 76
(b) Lease Obligations.................................... 76
(c) Mergers, Etc......................................... 76
(d) Sales, Etc., of Assets............................... 76
(e) Dividends, Repurchases, Etc.......................... 77
(f) Investments.......................................... 77
(g) Change in Nature of Business......................... 77
(h) Accounting Changes................................... 78
(i) Debt................................................. 78
(j) Charter Amendments................................... 78
(k) Prepayments, Etc., of Debt........................... 78
(l) Negative Pledge...................................... 78
(m) Partnerships......................................... 78
(n) Capital Expenditures................................. 78
(o) Issuance of Capital Stock............................ 78
(p) Payment Restrictions................................. 79
(q) Amendment, Etc., of Related Documents................ 79
iii
Page
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................... 79
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 7.01. Authorization and Action.................................... 85
SECTION 7.02. Administrative Agent's and Collateral Agent's Reliance, Etc. 86
SECTION 7.03. Citibank and Affiliates..................................... 86
SECTION 7.04. Lender Credit Decision...................................... 86
SECTION 7.05. Indemnification............................................. 87
SECTION 7.06. Successor Administrative Agent and Collateral Agent......... 88
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc............................................. 88
SECTION 8.02. Notices, Etc................................................ 89
SECTION 8.03. No Waiver; Remedies......................................... 90
SECTION 8.04. Costs; Expenses............................................. 90
SECTION 8.05. Right of Set-off............................................ 91
SECTION 8.06. Binding Effect.............................................. 92
SECTION 8.07. Assignments and Participations.............................. 92
SECTION 8.08. Governing Law; Submission to Jurisdiction................... 95
SECTION 8.09. Execution in Counterparts................................... 96
SECTION 8.10. WAIVER OF JURY TRIAL........................................ 96
iv
Schedule I - List of Commitments and Lending Offices
Schedule II - Borrower Information
Schedule III - List of Existing Debt
Schedule IV - List of Investments
Schedule V - List of Existing Liens
Schedule VI - Calculation of Defeased Debt Amount
Schedule VII - List of Debt for the Definition of Net Cash Proceeds
Exhibit A - Form of Term Note
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Mafco Security Agreement
Exhibit E-1 - Form of Mafco Guaranty
Exhibit E-2 - Form of C&F Guaranty
Exhibit E-3 - Form of Cigar Guaranty
Exhibit E-4 - Form of Xxxxxxx Guaranty
Exhibit E-5 - Form of Flavors Guaranty
Exhibit E-6 - Form of New World Guaranty
Exhibit E-7 - Form of Revlon Guaranty
Exhibit E-8 - Form of Revlon Worldwide Holdings Guaranty
Exhibit F-1 - Form of C&F Pledge Agreement
Exhibit F-2 - Form of New World Pledge Agreement
Exhibit F-3 - Form of Revlon Pledge Agreement
v
Exhibit F-4 - Form of Revlon Worldwide Holdings Pledge Agreement
Exhibit F-5 - Form of Revlon Worldwide Parent Pledge Agreement
Exhibit G - Form of Confidentiality Letter
AMENDED AND RESTATED TERM CREDIT AGREEMENT
AMENDED AND RESTATED TERM CREDIT AGREEMENT dated as of March 20, 1997
among MAFCO FINANCE CORP., a Delaware corporation (formerly known as MARVEL IV
HOLDINGS INC.) (the "Borrower"), the banks, financial institutions and other
institutional lenders (the "Financial Institutions") listed on the signature
pages hereof, CITIBANK, N.A. ("Citibank"), as administrative agent (together
with any successor appointed pursuant to Article VII, the "Administrative
Agent") for the Lenders (as hereinafter defined) hereunder, CREDIT SUISSE FIRST
BOSTON, as documentation agent (the "Documentation Agent") for the Lenders
hereunder, CHASE SECURITIES INC., as syndication agent (the "Syndication
Agent"; together with the Administrative Agent and the Documentation Agent, the
"Agents") for the Lenders hereunder and Citibank, as collateral agent (together
with any successor appointed pursuant to Article VII, the "Collateral Agent")
for the Lenders hereunder and the Revolving Credit Agreement Lenders (as
hereinafter defined).
PRELIMINARY STATEMENTS
(1) The Borrower, an indirect Subsidiary (as hereinafter defined) of
Mafco Holdings Inc., a Delaware corporation ("Mafco"), entered into a Term
Credit Agreement dated as of December 16, 1996, as amended by the Waiver and
Amendment dated as of December 23, 1996 and the Second Amendment dated as of
February 26, 1997 (said agreement, as so amended, being the "Existing Term
Credit Agreement"), with the banks, financial institutions and other
institutional lenders party thereto (the "Existing Term Lenders"), Citibank, as
administrative agent, NationsBank Capital Markets, Inc., as documentation
agent, Credit Suisse First Boston, as syndication agent, the managing agents
party thereto and Citibank, as collateral agent.
(2) Pursuant to the Existing Term Credit Agreement, the Borrower
requested that the Existing Term Lenders make advances to it in an aggregate
principal amount of up to $350,000,000, on the terms and conditions set forth
therein.
(3) Concurrently with entering into the Existing Term Credit
Agreement, the Borrower entered into a Fourth Amended and Restated Revolving
Credit Agreement dated as of December 16, 1996, as amended by the Waiver and
Amendment dated as of December 23, 1996 and the Second Amendment dated as of
February 26, 1997 (said agreement, as so amended, being the "Existing Credit
Agreement"), with the financial institutions and other institutional lenders
party thereto (the "Existing Lenders"), Citibank, as administrative agent for
the Existing Lenders, The First National Bank of Boston, as documentation agent
for the Existing Lenders, Chase Securities Inc., as syndication agent for the
Existing Lenders, the managing agents party thereto and Citibank, as collateral
agent for the Existing Lenders.
2
(4) The Borrower has requested that the Financial Institutions
hereunder enter into this Agreement to amend and restate the Existing Term
Credit Agreement and to lend to the Borrower an aggregate principal amount of
up to $400,000,000. The Financial Institutions hereunder have indicated their
willingness to amend and restate the Existing Term Credit Agreement and to
agree to lend such amounts on the terms and conditions of this Agreement.
(5) Concurrently with entering into this Agreement, the Borrower is
entering into a Fifth Amended and Restated Revolving Credit Agreement dated as
of the date hereof (as it may hereafter be amended or otherwise modified from
time to time, the "Revolving Credit Agreement") with the banks, financial
institutions and other institutional lenders party thereto (the "Revolving
Credit Agreement Lenders"), Citibank, as initial issuing bank, Citibank, as
administrative agent (in such capacity, the "Revolving Administrative Agent"),
The Bank of New York, as documentation agent (in such capacity, the "Revolving
Documentation Agent"), The First National Bank of Boston, as syndication agent
(in such capacity, the "Revolving Syndication Agent"; together with the
Revolving Administrative Agent and the Revolving Documentation Agent, the
"Revolving Agents"), and the Collateral Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree
that, subject to the satisfaction of the conditions set forth in Section 3.01,
the Existing Term Credit Agreement is amended and restated in its entirety to
read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Company" means each Loan Party, FN Parent, FN Holdings, Xxxxxxx
Holdings Inc., Xxxxxxx Worldwide, National Health Care Group Inc., Revlon
Holdings Inc., and Revlon Worldwide.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
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"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 3685-2248.
"ADR Collateral Account" has the meaning specified in the Mafco
Security Agreement.
"Advance" means a Term Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct
or indirect, of the power to vote 5% or more of the Voting Stock of such Person
or to direct or cause direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"Xxxxxxx" means Xxxxxxx Group Incorporated, a Delaware corporation.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means, at any time, 2.50% per annum for Base Rate
Advances and 4.50% per annum for Eurodollar Rate Advances.
"Asset Sale" means the sale, lease, transfer or other disposition
(collectively, a "disposition") of assets of Mafco or any of its Subsidiaries
other than a disposition of any of the following:
(i) all or any portion of the capital stock of Laboratory Corporation
of America Holdings, or Meridian Sports Incorporated,
(ii) all or any portion of the capital stock or assets of the Bank or
any of its Subsidiaries,
(iii) any asset of Ropa Two Corporation so long as the Net Cash
Proceeds from any disposition of an asset of Ropa Two Corporation shall be
reinvested, within
4
twelve months following the date of such disposition, in the business of
Ropa Two Corporation or any of its Subsidiaries, and
(iv) all or any portion of the News Corp. Preferred ADRs; provided,
however, that
(a) a disposition of assets of (x) a Designated Operating Company or
any of its Subsidiaries, (y) Meridian Sports Incorporated or any of its
Subsidiaries or (z) Marvel or any of its Subsidiaries shall, in each case,
only be considered an Asset Sale for purposes of this Agreement to the
extent, and only to the extent, that all or a portion of the proceeds of
such disposition are received by any of Mafco or any of its Subsidiaries
(other than (i) a Designated Operating Company or any of its Subsidiaries,
(ii) Meridian Sports Incorporated or any of its Subsidiaries or (iii)
Marvel or any of its Subsidiaries) through a dividend, distribution, loan,
advance or other similar payment,
(b) subject to the other clauses of this proviso, so long as the
Revlon Holdings Statement is true and correct both before and after giving
effect to such disposition, a disposition of assets of Revlon Holdings Inc.
or any of its Subsidiaries (other than Revlon Worldwide Parent and Revlon
Worldwide Holdings) shall only be considered an Asset Sale for purposes of
this Agreement to the extent, and only to the extent, that all or a portion
of the proceeds of such disposition are received by any of Mafco or any of
its Subsidiaries (other than Revlon Holdings Inc. or any of its
Subsidiaries (other than Revlon Worldwide Parent and Revlon Worldwide
Holdings)) through a dividend, distribution, loan, advance or other similar
payment,
(c) notwithstanding clause (b) of this proviso, a disposition of all
or any portion of the capital stock of Revlon Worldwide, Revlon Worldwide
Parent, Revlon Worldwide Holdings, National Health Care Group, Inc. or
Xxxxxxx of the Ritz Group Ltd. (but in the case of Xxxxxxx of the Ritz
Group Ltd., only if it owns any of the capital stock of Revlon Worldwide
Holdings at the time of such disposition) shall be considered an Asset Sale
for purposes of this Agreement, and
(d) notwithstanding clause (b) of this proviso, a disposition of any
asset (other than assets specifically excluded from this definition of
"Asset Sale") of National Health Care Group, Inc. or any of its
Subsidiaries (other than Revlon and its Subsidiaries) shall be considered
an Asset Sale for purposes of this Agreement.
"Asset Sale Threshold" means the receipt on and after the Effective
Date by Mafco and its Subsidiaries of the aggregate Net Cash Proceeds from
Asset Sales in an amount equal to the excess of (x) $265 million over (y) the
aggregate Net Cash Proceeds from Asset
5
Sales received by Mafco and its Subsidiaries during the period from February
24, 1997 through the Effective Date.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee of such Lender, and accepted by the
Administrative Agent, in substantially the form of Exhibit B hereto.
"Bank" means California Federal Bank, A Federal Savings Bank, and any
successor thereto.
"Bank Preferred Stock Document" means the Federal Stock Charter of
California Federal Bank, A Federal Savings Bank, as supplemented by the First
Supplemental Section to Section 5B of the Charter of California Federal Bank, A
Federal Savings Bank, the Second Supplemental Section to Section 5B of the
Charter of California Federal Bank, A Federal Savings Bank, the Third
Supplemental Section to Section 5B of the Charter of California Federal Bank, A
Federal Savings Bank, and the Fourth Supplemental Section to Section 5B of the
Charter of California Federal Bank, A Federal Savings Bank.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the highest
of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, plus (ii) the rate obtained by dividing (A) the latest three-week
moving average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States money
market banks, such three-week moving average (adjusted to the basis of a
year of 360 days) being determined weekly on each Monday (or, if such day
is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on the basis of
such rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates received
by Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to 100%
minus the average of the daily percentages specified during such three-week
period by the Board of Governors of the Federal Reserve System (or any
successor thereto) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for Citibank
6
with respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period of the
annual assessment rates estimated by Citibank for determining the then
current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor thereto) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrower Collateral Account" has the meaning specified in the
Borrower Security Agreement.
"Borrower Parent" means Mafco Guarantor Corp., a Delaware corporation
(formerly known as Marvel V Holdings Inc.).
"Borrower Parent Guaranty" means the Third Amended and Restated
Guaranty dated as of December 16, 1996 made by the Borrower Parent in favor of
the Lenders, the Revolving Credit Agreement Lenders, the Agents, the Revolving
Agents and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"Borrower Parent Security Agreement" means the Amended and Restated
Security Agreement dated as of December 16, 1996 made by the Borrower Parent
and The Bank of New York, in its capacity as voting trustee, to the Collateral
Agent, as such agreement may be amended or otherwise modified from time to time
in accordance with its terms.
"Borrower Security Agreement" means the Fourth Amended and Restated
Borrower Security Agreement dated as of December 16, 1996 made by the Borrower
to the Collateral Agent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
"Borrower's Account" means the account of the Borrower maintained by
the Borrower with Citibank, N.A., at its office at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Account No. 00000000.
7
"Borrowing" means a Term Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market and banks are open for business in London.
"C&F Guarantor" means Mafco Consolidated Holdings Inc., a Delaware
corporation (formerly known as C&F (Parent) Holdings Inc.).
"C&F Guaranty" means the Third Amended and Restated Guaranty dated as
of March 20, 1997 made by C&F Guarantor in favor of the Lenders, the Revolving
Credit Agreement Lenders, the Agents, the Revolving Agents and the Collateral
Agent, as such guaranty may be amended or otherwise modified from time to time
in accordance with its terms.
"C&F Pledge Agreement" means the Second Amended and Restated Pledge
Agreement dated as of March 20, 1997 made by C&F Guarantor to the Collateral
Agent, as such agreement may be amended or otherwise modified from time to time
in accordance with its terms.
"Calculation Period" means, for any date in respect of any common
stock, the immediately preceding five Business Days during which such common
stock traded on the relevant national stock exchange or the Nasdaq national
market system.
"Capital Expenditures" means, for any period, the sum of (a) all
expenditures during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have a useful life of more than one year plus (b) the aggregate
principal amount of all Debt (including obligations under Capitalized Leases)
assumed or incurred in connection with any such expenditures.
"Capitalized Leases" has the meaning specified in clause (e) of the
definition of "Debt".
"Cash Equivalents" means any of the following, to the extent owned by
the Borrower or its Subsidiaries free and clear of all Liens and having a
maturity not greater than 180 days from the date of issuance thereof: (a)
direct obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender or a
8
member of the Federal Reserve System, issues (or the parent of which issues)
commercial paper rated as described in clause (c), is organized under the laws
of the United States or any State thereof and has combined capital and surplus
of at least $1,000,000,000, (c) commercial paper in an aggregate amount of not
more than $10,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States and
rated at least "Prime-1" (or the then equivalent grade) by Xxxxx'x Investors
Services, Inc. or "A-1" (or the then equivalent grade) by Standard & Poor's
Ratings Group or (d) shares of money market mutual or similar funds having
assets in excess of $100,000,000 and which invest exclusively in assets
satisfying the requirements of clauses (a) through (c) of this definition.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980.
"Cigar Guarantor" means Consolidated Cigar II Holdings Inc., a
Delaware corporation.
"Cigar Guaranty" means the Fourth Amended and Restated Cigar Guaranty
dated as of March 20, 1997 made by Cigar Guarantor in favor of the Lenders, the
Revolving Credit Agreement Lenders, the Agents, the Revolving Agents and the
Collateral Agent, as such guaranty may be amended or otherwise modified from
time to time in accordance with its terms.
"Cigar Non-Operating Subsidiary" means C&F Guarantor.
"Cigar Pledge Agreement" means the Second Amended and Restated Cigar
Pledge Agreement dated as of December 16, 1996 made by Cigar Guarantor and The
Bank of New York, in its capacity as voting trustee, to the Collateral Agent,
as such agreement may be amended or otherwise modified from time to time in
accordance with its terms.
"Citibank" has the meaning specified in the recital of parties to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.
"Xxxxxxx" means The Xxxxxxx Company, Inc., a Delaware corporation.
"Xxxxxxx Guarantor" means Xxxxxxx (Parent) Holdings Inc., a Delaware
corporation.
9
"Xxxxxxx Guaranty" means the Fourth Amended and Restated Xxxxxxx
Guaranty dated as of March 20, 1997 made by Xxxxxxx Guarantor in favor of the
Lenders, the Revolving Credit Agreement Lenders, the Agents, the Revolving
Agents and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"Xxxxxxx Holdings" means Xxxxxxx Holdings Inc., a Delaware
corporation.
"Xxxxxxx Non-Operating Subsidiaries" means Xxxxxxx Holdings and
Xxxxxxx Worldwide.
"Xxxxxxx Pledge Agreement" means the Second Amended and Restated
Pledge Agreement dated as of December 16, 1996 made by Xxxxxxx Guarantor to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Xxxxxxx Tax Agreements" means (i) the Tax Allocation Agreement dated
as of August 24, 1990, as amended through the date hereof, between Mafco and
New Xxxxxxx, (ii) the Tax Sharing Agreement dated as of February 26, 1992, as
amended through the date hereof, among Mafco, Xxxxxxx Finance Holdings Inc.,
Xxxxxxx and the Subsidiaries of Xxxxxxx party thereto, (iii) the Tax Sharing
Agreement dated as of February 26, 1992, as amended through the date hereof,
among Mafco, New Xxxxxxx, Xxxxxxx Finance Holdings Inc. and the Subsidiaries of
Xxxxxxx Finance Holdings Inc. party thereto, (iv) the Tax Equivalent Payment
Agreement dated as of March 4, 1992, as amended through the date hereof,
between Mafco and Xxxxxxx Finance Holdings Inc., (v) the Supplemental Tax
Sharing Agreement dated as of February 26, 1992, as amended through the date
hereof, between Xxxxxxx and M&F, (vi) the Tax Sharing Agreement dated as of May
27, 1993 among Mafco, Xxxxxxx Worldwide, Xxxxxxx and its Subsidiaries party
thereto, (vii) the Tax Sharing Agreement dated as of May 27, 1993 among Mafco,
Xxxxxxx Worldwide and the other Persons party thereto, (viii) the Tax Sharing
Agreement dated as of July 22, 1993 between Mafco and Xxxxxxx Holdings, and
(ix) the Tax Sharing Termination Agreement dated as of May 27, 1993 among
Mafco, New Xxxxxxx, Xxxxxxx and the other Persons party thereto.
"Xxxxxxx Worldwide" means Xxxxxxx Worldwide Corporation, a Delaware
corporation.
"Xxxxxxx Worldwide Indenture" has the meaning specified in Schedule
VI.
"Xxxxxxx Worldwide XXXXX" means the Liquid Yield Option Notes Due 2013
issued by Xxxxxxx Worldwide.
10
"Xxxxxxx Worldwide Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by Xxxxxxx Worldwide to the Collateral Agent, as such agreement may be amended
or otherwise modified from time to time in accordance with its terms.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Collateral Agent, the Lenders, the Revolving Credit
Agreement Lenders, the Agents and the Revolving Agents.
"Collateral Accounts" means the ADR Collateral Account, the Borrower
Collateral Account, the Mafco Collateral Account, the Second Mafco Collateral
Account and the L/C Cash Collateral Account.
"Collateral Agent" has the meaning specified in the recital of the
parties hereto.
"Collateral Documents" means each Security Agreement and each Pledge
Agreement.
"Commitment" means a Term Commitment.
"Consolidated", for any Person, refers to the consolidation of the
financial statements of such Person and its Subsidiaries in accordance with
GAAP.
"Consolidated Cigar Holdings" means Consolidated Cigar Holdings Inc.,
a Delaware corporation.
"Consolidated Cigar Tax Agreement" means the Amended and Restated Tax
Sharing Agreement entered into as of June 15, 1995 among Mafco, MCG,
Consolidated Cigar Holdings, Consolidated Cigar Corporation and its
Subsidiaries party thereto.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.10.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money; (b) all Obligations of such Person for the
deferred purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such Person's
business); (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments; (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such
11
agreement in the event of default are limited to repossession or sale of such
property); (e) all Obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases
("Capitalized Leases"); (f) all Obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar facilities; (g) all
Obligations of such Person to purchase, redeem, retire, defease or otherwise
acquire for value any capital stock of such Person or any warrants, rights or
options to acquire such capital stock; (h) all Obligations of such Person in
respect of Hedge Agreements; (i) all Debt of others referred to in clauses (a)
through (h) above guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person through
an agreement (i) to pay or purchase such Debt or to advance or supply funds for
the payment or purchase of such Debt, (ii) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to assure the
holder of such Debt against loss, (iii) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such services are
rendered) or (iv) otherwise to assure a creditor against loss; and (j) all Debt
referred to in clauses (a) through (i) above secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Debt. For all purposes of this
Agreement and the other Loan Documents, "Debt" shall not include Obligations of
any Designated Operating Company, Marvel or any of their respective
Subsidiaries in respect of Hedge Agreements.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any time, the
amount of any Advance required to be made by such Lender to the Borrower
pursuant to Section 2.01 at or prior to such time which has not been so made as
of such time; provided, however, that any Advance made by the Administrative
Agent for the account of such Lender pursuant to Section 2.02(c) shall not be
considered a Defaulted Advance even if, at such time, such Lender shall not
have reimbursed the Administrative Agent therefor as provided in Section
2.02(c). In the event that a portion of a Defaulted Advance shall be deemed
made pursuant to Section 2.15(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to be made
pursuant to Section 2.01 on the same date as the Defaulted Advance so deemed
made in part.
"Defaulted Amount" means, with respect to any Lender at any time, any
amount required to be paid by such Lender to the Administrative Agent, the
Collateral Agent or any other Lender hereunder or under any other Loan Document
at or prior to such time which has not been so paid as of such time, including,
without limitation, any amount required
12
to be paid by such Lender to (a) the Administrative Agent pursuant to Section
2.02(c) to reimburse the Administrative Agent for the amount of any Advance
made by the Administrative Agent for the account of such Lender, (b) any other
Lender pursuant to Section 2.13 to purchase any interest or participating
interest in Advances owing to such other Lender and (c) the Administrative
Agent or the Collateral Agent pursuant to Section 7.05 to reimburse the
Administrative Agent or the Collateral Agent, as the case may be, for such
Lender's ratable share of any amount required to be paid by the Lenders to the
Administrative Agent or the Collateral Agent as provided therein. In the event
that a portion of a Defaulted Amount shall be deemed paid pursuant to Section
2.15(b), the remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be made hereunder or under any other
Loan Document on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender that, at such time,
(a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take or be the
subject of any action or proceeding of a type described in Section 6.01(e).
"Defeased Debt Amount" means for any date of determination for any
Designated Person listed on Schedule VI an amount calculated in the manner set
forth on Schedule VI for such Designated Person or such other amount as may be
agreed by the Administrative Agent and the Borrower.
"Deposit Certificate" has the meaning specified in Section 5.01(k).
"Designated Xxxxxxx Subsidiaries" means Xxxxxxx Holdings, Xxxxxxx
Worldwide and Xxxxxxx.
"Designated New World Subsidiary" means New World Guarantor.
"Designated Operating Companies" means Xxxxxxx, MCG and Revlon;
provided, however, that (x) on and after the Marvel Inclusion Date, Marvel
shall be a "Designated Operating Company", (y) on and after the MCG Inclusion
Date, Consolidated Cigar Holdings shall be a "Designated Operating Company" and
(z) on and after the PCT Inclusion Date, PCT shall be a "Designated Operating
Company".
"Designated Persons" means Xxxxxxx Guarantor, Mafco, C&F Guarantor,
Revlon Guarantor and the Bank; provided, however, that (x) on and after the
date of the sale, monetization or other disposal of all of the News Corp.
Preferred ADRs held by Mafco and its Subsidiaries, Mafco shall no longer be a
"Designated Person" and (y) on and after the PCT Inclusion Date, MCG shall be a
"Designated Person".
13
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Dollars" and the sign "$" each mean lawful money of the United
States.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender, as the case may be, or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the
Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) any commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $1,000,000,000; (b) any savings and loan association or savings bank
organized under the laws of the United States, or any State thereof, and having
a net worth determined in accordance with GAAP in excess of $500,000,000; (c)
any commercial bank organized under the laws of any other country that is a
member of the Organization for Economic Cooperation and Development ("OECD") or
has concluded special lending arrangements with the International Monetary Fund
Associated with its General Arrangements to Borrow, or a political subdivision
of any such country, and having total assets in excess of $1,000,000,000, so
long as such bank is acting through a branch or agency located in the United
States, in the Cayman Islands or in the country in which it is organized or
another country that is described in this clause (c); (d) the central bank of
any country that is a member of the OECD; (e) any finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that (i) is not affiliated with the
Borrower, (ii) is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and (iii) has total
assets in excess of $500,000,000; and (f) any other Person (other than an
Affiliate of the Borrower) approved by the Administrative Agent and the
Borrower, such approval not to be unreasonably withheld.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of non-compliance
or violation, investigation, proceeding, consent order or consent agreement
based upon or arising out of any Environmental Law or any Environmental Permit,
including without limitation (a) any claim by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any Environmental Law and (b) any claim by any
third party seeking damages, contribution, or injunctive relief arising from
alleged injury or threat of injury to health, safety or the environment.
14
"Environmental Law" means any federal, state or local law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
relating to the environment, health or safety including, without limitation,
CERCLA, the Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the
Clean Air Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal
Insecticide, Fungicide and Rodenticide Act and the Occupational Safety and
Health Act.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"Equity Contribution Agreement" means the Amended and Restated Equity
Contribution Agreement dated as of December 16, 1996, between the Borrower and
the Borrower Parent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled group, or
under common control with such Person, within the meaning of Section 414 of the
Code.
"ERISA Event" with respect to any Person means (a) the occurrence of a
reportable event, within the meaning of Section 4043 of ERISA, with respect to
any Plan of such Person or any of its ERISA Affiliates unless the 30-day notice
requirement with respect to such event has been waived by the PBGC; (b) the
provision by the administrator of any Plan of such Person or any of its ERISA
Affiliates of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (c) the cessation of operations at a
facility of such Person or any of its ERISA Affiliates in the circumstances
described in Section 4062(e) of ERISA; (d) the withdrawal by such Person or any
of its ERISA Affiliates from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(e) the failure by such Person or any of its ERISA Affiliates to make a payment
to a Plan described in Section 302(f)(1) of ERISA; (f) the adoption of an
amendment to a Plan of such Person or any of its ERISA Affiliates requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA; or (g)
the institution by the PBGC of proceedings to terminate a Plan of such Person
or any of its ERISA Affiliates, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that
would constitute grounds for the termination of, or the appointment of a
trustee to administer, such Plan; provided, however, that an event described in
clause (a), (c) or (d) of
15
this definition, or in clause (b) of this definition solely with respect to a
standard termination under Section 4041(b) of ERISA, shall be an ERISA Event
only if such event is reasonably likely to result in a material liability of
such Person or any of its ERISA Affiliates.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in U.S. dollars
are offered by the principal office of Citibank in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period. The Eurodollar Rate for each
Interest Period shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent from
Citibank two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.06.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
Period for any Advance means the reserve percentage applicable during such
Interest Period (or if more than one such percentage shall be so applicable,
the daily average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under regulations
issued from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
16
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agreement" means the Exchange Agreement dated as of October
3, 1994 among FN Parent, FN Holdings and Xxxxxx X. Xxxx.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Existing Lenders" has the meaning specified in the Preliminary
Statements.
"Existing Term Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Existing Term Lenders" has the meaning specified in the Preliminary
Statements.
"Facility" means the Term Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, 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.
"FG Guarantor" means First Gibraltar Guarantor Corp., a Delaware
corporation.
"Financial Institutions" has the meaning specified in the recital of
parties to this Agreement.
"First Gibraltar" means First Gibraltar Holdings Inc., a Delaware
corporation.
"First Gibraltar Charter Document" means the restated certificate of
incorporation of First Gibraltar.
"First Gibraltar Credit Agreement" means the $150,000,000 Credit
Agreement dated as of September 27, 1996, as heretofore amended, among First
Gibraltar, FG Guarantor,
17
the banks and other financial institutions party thereto, NationsBank, N.A., as
administrative agent, NationsBanc Capital Markets, Inc., as syndication agent
and Citibank, as documentation agent, as the same may hereafter be amended,
modified or otherwise supplemented from time to time in accordance with the
Loan Documents.
"First Gibraltar Loan Agreement" means the Amended and Restated Loan
Agreement dated as of December 16, 1996 between the Borrower Parent and First
Gibraltar, as amended or otherwise modified from time to time in accordance
with its terms.
"Flavors Guarantor" means Flavors (Parent) Holdings Inc., a Delaware
corporation.
"Flavors Guaranty" means the Fourth Amended and Restated Flavors
Guaranty dated as of March 20, 1997 made by Flavors Guarantor in favor of the
Lenders, the Revolving Credit Agreement Lenders, the Agents, the Revolving
Agents and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"Flavors Non-Operating Subsidiary" means C&F Guarantor.
"Flavors Pledge Agreement" means the Second Amended and Restated
Flavors Pledge Agreement dated as of December 16, 1996 made by Flavors
Guarantor and The Bank of New York, in its capacity as voting trustee, to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"FN Documents" means the FN Holdings Debt Document, the FN Holdings
New Debt Document, the Second New FN Holdings Debt Document, the FN Parent Debt
Document, the Exchange Agreement and the Stockholders Agreement.
"FN Escrow" means First Nationwide Escrow Corp., a Delaware
corporation.
"FN Holdings" means First Nationwide Holdings Inc., a Delaware
corporation.
"FN Holdings Debt" means the 12-1/4% Senior Notes due 2001 issued by
FN Holdings in an aggregate principal amount equal to $200,000,000.
"FN Holdings Debt Document" means the Indenture dated as of July 15,
1994 made by FN Holdings in favor of The First National Bank of Boston, as
trustee, in connection with the FN Holdings Debt and any other agreement or
instrument which governs the terms of the FN Holdings Debt.
18
"FN Holdings New Debt" means the 9-1/8% Senior Subordinated Notes Due
2003 issued by FN Holdings in an aggregate principal amount equal to
$140,000,000.
"FN Holdings New Debt Document" means the Indenture dated as of
January 31, 1996 made by FN Holdings in favor of The Bank of New York, as
trustee, in connection with the FN Holdings New Debt and any other agreement or
instrument which governs the terms of the FN Holdings New Debt.
"FN Holdings Preferred Stock" means the $150,000,000 liquidation value
of Cumulative Perpetual Preferred Stock issued by FN Holdings and any shares of
Cumulative Perpetual Preferred Stock to be issued in lieu of cash dividends
payable on the FN Holdings Preferred Stock.
"FN Management Incentive Plan" means the Management Incentive Plan for
Certain Employees of the Bank established by FN Holdings to provide long-term
incentives to certain key executives of the Bank.
"FN Parent" means First Nationwide (Parent) Holdings Inc., a Delaware
corporation.
"FN Parent Debt" means the 12-1/2% Senior Notes due 2003 issued by FN
Parent in an aggregate principal amount equal to $455,000,000.
"FN Parent Debt Document" means the Indenture dated as of April 15,
1996 made by FN Parent in favor of The Bank of New York, as trustee, in
connection with the FN Parent Debt and any other agreement or instrument which
governs the terms of the FN Parent Debt.
"FN Parties" means the Bank, FN Holdings and FN Parent.
"FN Tax Agreement" means the Tax Sharing Agreement dated as of January
1, 1994 among Mafco, FN Holdings, the Bank and certain Subsidiaries of FN
Holdings and the Bank.
"Four Star" means Four Star Holdings Corp., a Delaware corporation.
"Four Star Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by Four Star and The Bank of New York, in its capacity as voting trustee, to
the Collateral Agent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
19
"Fourth Credit Agreement" has the meaning specified in the Revolving
Credit Agreement.
"Fully Satisfied" shall mean, with respect to the Payment Obligations
as of any date, that, on or before such date, (a) the principal of and interest
accrued to such date on all outstanding Advances shall have been paid in full
in cash, (b) the Commitments shall have been terminated in full and (c) all
fees, expenses and other amounts then due and payable which constitute Payment
Obligations shall have been paid in cash; provided, however, that on such date
none of the Administrative Agent and the Lenders shall have made any claims in
respect of Payment Obligations against the Borrower or any other Loan Party
under any provision of any of the Loan Documents that has not been cash
collateralized by an amount sufficient in the reasonable judgment of the
Administrative Agent, the Required Lenders and any such Lender (if such Lender
is not one of the Lenders constituting the Required Lenders) to secure such
claim.
"GAAP" means 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 referred to in Section
4.01(f), except that with respect to (x) the preparation of any financial
statement required to be furnished pursuant to clause (i), (ii) or (iii) of
Section 5.01(j) and (y) changes to financial statement presentation and
accounting policies contemplated by Section 5.02(h), "GAAP" shall mean such
principles as in effect from time to time in the United States of America.
"Guarantor" means each of Mafco, Borrower Parent, Xxxxxxx Guarantor,
New World Guarantor, Flavors Guarantor, Cigar Guarantor, C&F Guarantor, Revlon
Worldwide Holdings, Revlon Guarantor and, on and after the MCG Inclusion Date,
MCG.
"Guaranty" means each of the Mafco Guaranty, the Borrower Parent
Guaranty, the Xxxxxxx Guaranty, the New World Guaranty, the Flavors Guaranty,
the Cigar Guaranty, the C&F Guaranty, the Revlon Worldwide Holdings Guaranty,
the Revlon Guaranty and, on and after the MCG Inclusion Date, the MCG Guaranty.
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation and radon gas, (b) any substances defined as
or included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous wastes", "restricted hazardous
wastes", "toxic substances", "toxic pollutants", "contaminants" or
"pollutants", or words of similar import, under any Environmental Law and (c)
any other substance exposure to which is regulated under any Environmental Law.
20
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Indemnified Party" has the meaning specified in Section 8.04(c).
"Initial Date" means, for purposes of Section 2.12, in the case of the
Administrative Agent and each Financial Institution, the date of its execution
and delivery of this Agreement and, in the case of each Lender other than a
Financial Institution, the date of the Assignment and Acceptance pursuant to
which it becomes a Lender.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance, and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that
(i) the Borrower may not select any Interest Period with respect to
any Eurodollar Rate Advance which ends after the Termination Date;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(iii) whenever the first day of any Interest Period occurs on a day in
a calendar month for which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar
month.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, debt obligations or other securities of such Person, any capital
contribution to such Person or any other investment
21
in such Person, including, without limitation, any arrangement pursuant to
which the investor incurs Debt of the types referred to in clauses (i) and (j)
of the definition of "Debt" in respect of such Person.
"L/C Cash Collateral Account" has the meaning specified in the
Borrower Security Agreement.
"Lenders" means the Financial Institutions listed on the signature
pages hereof and each Eligible Assignee that shall become a party hereto
pursuant to Section 8.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"Loan Documents" means this Agreement, the Notes, each Guaranty, each
Collateral Document, the Equity Contribution Agreement and the First Gibraltar
Loan Agreement.
"Loan Party" means each of the Borrower, each Guarantor, M&F, Xxxxxxx,
Four Star, New Xxxxxxx, First Gibraltar and Revlon Worldwide Parent.
"Look-Forward Certificate" has the meaning specified in Section
5.01(k).
"M&F" means MacAndrews & Forbes Holdings Inc., a Delaware corporation.
"M&F Pledge Agreement" means the Amended and Restated Non-Recourse
Guaranty and Pledge Agreement dated as of December 16, 1996 made by M&F to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Mafco" has the meaning specified in the Preliminary Statements.
"Mafco Collateral Account" has the meaning specified in the Mafco
Security Agreement.
"Mafco Finance Required Lenders" means at any time Lenders and
Revolving Credit Agreement Lenders owed or holding at least a majority in
interest of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time, (b) the aggregate principal amount of the Debt
outstanding at such time under the Revolving Credit Agreement, (c) the
aggregate Available Amount (as defined in the Revolving Credit Agreement) of
all
22
Letters of Credit (as defined in the Revolving Credit Agreement) outstanding at
such time, (d) the aggregate unused Commitments at such time, and (e) the
aggregate "Unused Revolving Credit Commitment" under the Revolving Credit
Agreement at such time (provided that, for purposes hereof, neither the
Borrower, nor any of its Affiliates, if a Lender or a Revolving Credit
Agreement Lender, shall be included in (x) the Lenders and the Revolving Credit
Agreement Lenders holding such amount of the Advances, the Debt or the
Available Amount of all Letters of Credit or having such amount of the
Commitments or the "Unused Revolving Credit Commitment" or (y) determining the
aggregate unpaid principal amount of the Advances or such Debt, the total
Commitments or the total "Unused Revolving Credit Commitments" under the
Revolving Credit Agreement); provided, however, that if any Lender shall be a
Defaulting Lender at such time or any Revolving Credit Agreement Lender shall
be a "Defaulting Lender" under the Revolving Credit Agreement at such time,
there shall be excluded from the determination of Mafco Finance Required
Lenders at such time (i) the aggregate principal amount of the Advances owing
to such Lender (in its capacity as Lender) and outstanding at such time, (ii)
the aggregate principal amount of Debt under the Revolving Credit Agreement
owing to such Revolving Credit Agreement Lender and outstanding at such time,
(iii) such Lender's Pro Rata Share (as defined in the Revolving Credit
Agreement) of the aggregate Available Amount of all Letters of Credit issued by
such Revolving Credit Agreement Lender as of such time, (iv) the aggregate
unused portion of the Commitments of such Lender at such time and (v) the
aggregate "Unused Revolving Credit Commitment" of such Revolving Credit
Agreement Lender under the Revolving Credit Agreement at such time; provided
further that on and after the Revolving Credit Agreement Termination Date, the
Mafco Finance Required Lenders shall be the Required Lenders hereunder. For
purposes of this definition, the aggregate principal amount of Letter of Credit
Advances owing to the Issuing Bank (as defined in the Revolving Credit
Agreement) and the Available Amount of each Letter of Credit shall be
considered to be owed to the Revolving Credit Agreement Lenders ratably in
accordance with their respective Revolving Credit Commitment (as defined in the
Revolving Credit Agreement).
"Mafco Guaranty" means the Fifth Amended and Restated Mafco Guaranty
dated as of March 20, 1997 made by Mafco in favor of the Lenders, the Revolving
Credit Agreement Lenders, the Agents, the Revolving Agents and the Collateral
Agent, as such guaranty may be amended or otherwise modified from time to time
in accordance with its terms.
"Mafco Pledge Agreement" means the Second Amended and Restated Pledge
Agreement dated as of December 16, 1996 made by Mafco and The Bank of New York,
in its capacity as voting trustee, to the Collateral Agent, as such agreement
may be amended or otherwise modified from time to time in accordance with its
terms.
23
"Mafco Security Agreement" means the Fifth Amended and Restated Mafco
Security Agreement dated as of March 20, 1997 made by Mafco to the Collateral
Agent, as such agreement may be amended or otherwise modified from time to time
in accordance with its terms.
"Margin Stock" has the meaning specified in Regulation U of the Board
of Governors of the Federal Reserve System and any successor regulations
thereto, as in effect from time to time.
"Marvel" means Marvel Entertainment Group, Inc., a Delaware
corporation.
"Marvel Inclusion Date" means the date on which Mafco or any of its
Affiliates acquires the New Marvel Shares.
"Marvel Tax Agreements" means (i) the Tax Sharing Agreement dated as
of April 22, 1993 between Mafco and Marvel Holdings Inc., (ii) the Tax Sharing
Agreement dated as of October 20, 1993 between Mafco and Marvel (Parent)
Holdings Inc. and (iii) the Amended and Restated Tax Sharing Agreement dated as
of January 1, 1994 among Mafco, Marvel III Holdings Inc., Marvel and certain
Subsidiaries of Marvel.
"Material Adverse Change" means, with respect to any Person, a
material adverse change in the condition (financial or otherwise), operations,
assets, business or prospects of such Person and its Subsidiaries, taken as a
whole.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect upon (a) the condition (financial or otherwise),
operations, assets, business or prospects of such Person and its Subsidiaries,
taken as a whole, or (b) the ability of a Loan Party to perform its obligations
under any Loan Document, or (c) the rights and remedies of the Administrative
Agent, the Collateral Agent or any Lender under any Loan Document.
"MCG" means Mafco Consolidated Group Inc., a Delaware corporation.
"MCG Guaranty" means the MCG Guaranty to be made, on the MCG Inclusion
Date, by MCG in favor of the Lenders, the Revolving Credit Agreement Lenders,
the Agents, the Revolving Agents and the Collateral Agent, in form and
substance reasonably satisfactory to the Mafco Finance Required Lenders, as
such guaranty may be amended or otherwise modified from time to time in
accordance with its terms.
"MCG Inclusion Date" means the date on which (x) C&F Guarantor owns
all of the capital stock of MCG and (y) the Administrative Agent and the
Revolving
24
Administrative Agent deliver a notice to the Borrower that the Administrative
Agent, the Revolving Administrative Agent or the Collateral Agent, as the case
may be, shall have received, in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender (or the
requirement that such document be delivered shall have been duly waived):
(i) certified copies of the resolutions of the board of directors of
MCG approving the MCG Guaranty and the MCG Pledge Agreement, and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to the MCG Guaranty and the MCG Pledge
Agreement;
(ii) a certificate of the Secretary or an Assistant Secretary of MCG
certifying the names and true signatures of the officers of MCG authorized
to sign the MCG Guaranty and the MCG Pledge Agreement;
(iii) a copy of a certificate of the Secretary of State of the state
of incorporation of each of MCG, Consolidated Cigar Holdings and PCT, dated
reasonably near the MCG Inclusion Date, listing the charter of such Person
and each amendment thereto on file in his office and certifying that (A)
such amendments are the only amendments to such Person's charter on file in
his office, (B) such Person has paid all franchise taxes to the date of
such certificate and (C) such Person is duly incorporated or organized and
in good standing under the laws of such state;
(iv) (A) a certificate of MCG signed on behalf of MCG by its President
or a Vice President and its Secretary or any Assistant Secretary, dated as
of the MCG Inclusion Date (the statements made in such certificate shall be
true on and as of the MCG Inclusion Date), certifying as to (1) the absence
of any amendments to the charter of such Person since the date of the
Secretary of State's certificate referred to in clause (iii) above, (2) the
trueness and correctness of the bylaws of such Person attached to such
certificate, (3) the due incorporation and good standing of such Person as
a corporation under the laws of the relevant state of incorporation, and
the absence of any proceeding for the dissolution or liquidation of such
Person, (4) the truth in all material respects of the representations and
warranties made by such Person contained in the MCG Guaranty and the MCG
Pledge Agreement as though made on and as of the MCG Inclusion Date and (5)
the absence of any event occurring and continuing, or resulting from the
MCG Inclusion Date, that constitutes a Default and (B) a certificate of MCG
signed on behalf of MCG by its President or a Vice President and its
Secretary or any Assistant Secretary, dated as of the MCG Inclusion Date
(the statements made in such certificate shall be true on and as of the MCG
Inclusion Date), certifying as to (1) the absence of any amendments to the
charter of each of Consolidated Cigar Holdings and PCT since the date of
the Secretary of State's Certificate referred to in clause (iii) above, (2)
the trueness and correctness of the bylaws of each of Consolidated Cigar
Holdings and PCT attached to such certificate and (3) the due incorporation
and good
25
standing of each of Consolidated Cigar Holdings and PCT as a corporation
organized under the laws of the State of Delaware, and the absence of any
proceeding for the dissolution or liquidation of either Consolidated Cigar
Holdings or PCT;
(v) the MCG Guaranty in form and substance reasonably satisfactory to
the Mafco Finance Required Lenders;
(vi) the MCG Pledge Agreement in substantially the form of the Second
Xxxxxxx Pledge Agreement and otherwise reasonably satisfactory to the
Administrative Agent, duly executed by MCG, together with (1) certificates
representing the Pledged Shares referred to in the MCG Pledge Agreement
accompanied by undated stock powers executed in blank, (2) acknowledgment
copies or stamped receipt copies of financing statements, duly filed on or
before such date under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable in order to
perfect the Liens created by the MCG Pledge Agreement, covering the
Collateral described in the MCG Pledge Agreement, and (3) completed
requests for information, dated on or before such date, listing the
financing statements referred to in clause (2) above and all other
effective financing statements filed in the jurisdictions referred to in
clause (2) above that name MCG, as debtor, together with copies of such
other financing statements;
(vii) certified copies of (A) a voting trust agreement among C&F
Guarantor, MCG, the Collateral Agent and The Bank of New York, as voting
trustee, in substantially the form of the voting trust agreements delivered
pursuant to Section 3.01(h)(xiii)(A) of the Existing Credit Agreement and
(B) the charter of MCG, the terms and conditions of which shall be
substantially similar to those contained in the charter of Xxxxxxx
Guarantor; and
(viii) favorable opinions of counsel to Mafco reasonably satisfactory
to the Lenders, in form and substance reasonably satisfactory to the
Lenders.
"MCG Pledge Agreement" means the Pledge Agreement to be made, on the
MCG Inclusion Date, by MCG to the Collateral Agent, in substantially the form
of the Second Xxxxxxx Pledge Agreement and otherwise reasonably satisfactory to
the Administrative Agent, as such agreement may be amended or otherwise
modified from time to time in accordance with its terms.
"MCG Tax Agreement" means the Tax Sharing Agreement dated as of June
15, 1995 among Mafco, MCG and Subsidiaries of MCG party thereto.
26
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, which is subject to Title IV of ERISA,
and to which such Person or any of its ERISA Affiliates is making or accruing
an obligation to make contributions, or has within any of the preceding five
plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, which is subject to Title IV of
ERISA, and (a) that is maintained for employees of such Person or any of its
ERISA Affiliates and at least one Person other than such Person and its ERISA
Affiliates or (b) that was so maintained and in respect of which such Person or
any of its ERISA Affiliates could have liability under Section 4064 or 4069 of
ERISA in the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset or the sale or issuance by any Person of any
Debt or capital stock, any securities convertible into or exchangeable for
capital stock or any warrants, rights or options to acquire capital stock, the
sum of (i) the aggregate amount of cash received from time to time by or on
behalf of such Person in connection with such transaction plus (ii) the
aggregate principal amount of any Debt listed on Schedule VII hereto that is
assumed, directly or indirectly, by any Person (other than Mafco or an
Affiliate of Mafco) in connection with, or as a result of, such transaction,
after deducting therefrom only (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees and expenses, finder's
fees, accountants' fees and expenses and other similar fees, expenses and
commissions, (b) the amount of taxes payable or estimated in good faith to be
payable within 12 months following the date of the consummation of such
transaction in connection with or as a result of such transaction and (c) the
amount of any Debt that, by the terms of such Debt, is required to be repaid
upon such disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are payable to a Person that is not an Affiliate (other
than such amounts that are payable by the Borrower and its Subsidiaries to an
Affiliate pursuant to a Related Document) and are properly attributable to such
transaction or to the asset that is the subject thereof.
"Net Equity Value" means for any day of determination for any
Designated Person:
(i) with respect to Xxxxxxx Guarantor, an amount (not less than $0)
equal to the excess of (A) the product of the number of shares of common
stock of Xxxxxxx owned directly or indirectly by Xxxxxxx Guarantor times
the average closing price during the Calculation Period relating to such
day of determination of such common stock on the New York Stock Exchange
over (B) the Defeased Debt Amount of Xxxxxxx Guarantor;
27
(ii) with respect to Mafco, an amount (not less than $0) equal to the
product of the number of News Corp. Preferred ADRs pledged in favor of the
Collateral Agent under the Collateral Documents times the average closing
price of the News Corp. Preferred ADRs during the Calculation Period
relating to such day of determination for such News Corp. Preferred ADRs on
either the New York Stock Exchange or the Nasdaq National Market System;
(iii) with respect to C&F Guarantor, (x) prior to the MCG Inclusion
Date, an amount (not less than $0) equal to the product of the number of
shares of common stock of MCG owned directly or indirectly by C&F Guarantor
times the average closing price during the Calculation Period relating to
such day of determination of such common stock on the New York Stock
Exchange and (y) on and after the MCG Inclusion Date, an amount (not less
than $0) equal to the product of the number of shares of common stock of
Consolidated Cigar Holdings owned directly or indirectly by C&F Guarantor
times the average closing price during the Calculation Period relating to
such day of determination of such common stock on the New York Stock
Exchange;
(iv) with respect to Revlon Worldwide Parent, (x) an amount (not less
than $0) equal to the excess of (A) the product of the number of shares of
common stock of Revlon owned directly or indirectly by Revlon Worldwide
Parent times the average closing price during the Calculation Period
relating to such day of determination of such common stock on the New York
Stock Exchange over (B) the Defeased Debt Amount of Revlon Worldwide Parent
and (y) on and after the Revlon Defeasance Date, an amount (not less than
$0) equal to the sum of (1) the product of the number of shares of common
stock of Revlon pledged in favor of the Collateral Agent under the
Collateral Documents times the average closing price during the Calculation
Period relating to such day of determination of such common stock on the
New York Stock Exchange plus (2) an amount equal to the excess of (I) the
product of the number of shares of common stock of Revlon pledged in favor
of the holders of the Revlon Worldwide Parent Debt times the average
closing price during the Calculation Period relating to such day of
determination of such common stock on the New York Stock Exchange over (II)
the Defeased Debt Amount of Revlon Worldwide Parent;
(v) with respect to MCG (on and after the PCT Inclusion Date), an
amount (not less than $0) equal to the product of the number of shares of
common stock of PCT owned directly or indirectly by MCG times the average
closing price during the Calculation Period relating to such day of
determination of such common stock on the New York Stock Exchange; and
28
(vi) with respect to the Bank, an amount equal to $500,000,000.
"Net Residual Value" means for any day of determination an amount
equal to the aggregate Net Equity Value of the Designated Persons on such day.
"New Xxxxxxx" means New Xxxxxxx Holdings Inc., a Kansas corporation.
"New Xxxxxxx Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by New Xxxxxxx and The Bank of New York, in its capacity as voting trustee, to
the Collateral Agent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
"New Marvel Shares" means all shares of capital stock of Marvel issued
after the date hereof and received by Xxxxxxx or any of its Affiliates.
"New World" means New World Communications Group Incorporated, a
Delaware corporation.
"New World Guarantor" means NWCG (Parent) Holdings Corporation, a
Delaware corporation.
"New World Guaranty" means the Fifth Amended and Restated New World
Guaranty dated as of March 20, 1997 made by New World Guarantor in favor of the
Lenders, the Revolving Credit Agreement Lenders, the Agents, the Revolving
Agents and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"New World Pledge Agreement" means the Third Amended and Restated
Pledge and Assignment Agreement dated as of March 20, 1997 made by New World
Guarantor to the Collateral Agent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"Newco" means DROF Holdings Inc., a Delaware corporation.
"Newco Loan" means the loan by First Gibraltar to Newco in an
aggregate principal amount of $150,000,000 for the sole purpose of purchasing
the FN Holdings Preferred Stock.
"News Corp." means The News Corporation Limited, a South Australia
corporation.
29
"News Corp. Contract" means the Stock Purchase Agreement dated as of
September 24, 1996 among New World Guarantor, News Corp. and Fox Television
Stations, Inc., as such agreement may be amended, modified or supplemented in
accordance with the terms of the Loan Documents.
"News Corp. Preferred ADRs" means the American Depositary Shares of
News Corp., each of which represents four fully paid and nonassessable
Preferred Limited Voting Ordinary Shares, of A $.50 each of News Corp. and the
related warrants, received by New World Guarantor pursuant to the terms of the
News Corp. Contract.
"Notes" means the Term Notes.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(e). Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by any Loan Party
under any Loan Document and (b) the obligation to reimburse any amount in
respect of any of the foregoing that any Lender, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"Original Credit Agreement" has the meaning given such term in the
Revolving Credit Agreement.
"Other Taxes" has the meaning specified in Section 2.13(b).
"Payment Obligations" shall mean all principal, interest, fees,
charges, expenses, attorneys' fees and expenses, indemnities and any other
amounts payable by the Loan Parties under the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"PCT" means Power Control Technologies, a Delaware corporation.
30
"PCT Inclusion Date" means the later of (x) the MCG Inclusion Date and
(y) the date on which the common stock of PCT held directly or indirectly by
Mafco shall be pledged in favor of the Collateral Agent.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledge Agreements" means the C&F Pledge Agreement, the Cigar Pledge
Agreement, the Xxxxxxx Pledge Agreement, the Xxxxxxx Worldwide Pledge
Agreement, the Flavors Pledge Agreement, the Four Star Pledge Agreement, the
Mafco Pledge Agreement, the M&F Pledge Agreement, the New Xxxxxxx Pledge
Agreement, the New World Pledge Agreement, the Second Xxxxxxx Pledge Agreement,
the Revlon Pledge Agreement, the Revlon Worldwide Holdings Pledge Agreement,
the Revlon Worldwide Parent Pledge Agreement and, on and after the MCG
Inclusion Date, the MCG Pledge Agreement.
"Register" has the meaning specified in Section 8.07(c).
"Related Documents" means the Xxxxxxx Tax Agreements, the FN Tax
Agreement, the MCG Tax Agreement, the Revlon Tax Agreements (so long as Revlon
continues to be a member of the affiliated group (within the meaning of Section
1504(a)(1) of the Code) of which Mafco is the common parent), the Consolidated
Cigar Tax Agreement (so long as Consolidated Cigar Holdings continues to be a
member of the affiliated group (within the meaning of Section 1504(a)(1) of the
Code) of which Mafco is the common parent) and the Marvel Tax Agreements (so
long as Marvel continues to be a member of the affiliated group (within the
meaning of Section 1504(a)(1) of the Code) of which Mafco is the common
parent).
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of the aggregate principal amount of
the Advances outstanding at such time, or, if no such principal amount is
outstanding at such time, Lenders holding at least a majority in interest of
the aggregate of the Commitments (provided that, for purposes hereof, neither
the Borrower, nor any of its Affiliates, if a Lender, shall be included in (x)
the Lenders holding such amount of the Advances or having such amount of the
Commitments or (y) determining the aggregate unpaid principal amount of the
Advances or the total Commitments); provided, however, that if any Lender shall
be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender)
31
and outstanding at such time and (ii) the aggregate unused portion of the
Commitments of such Lender at such time.
"Revlon" means Revlon, Inc., a Delaware corporation.
"Revlon Defeasance Date" means the later of (x) the date on which
certain obligations under the Revlon Worldwide Indenture are terminated
pursuant to Section 8.01(b)(ii) thereof and (y) the date on which the shares of
Revlon not required to secure the Revlon Worldwide Parent Debt are pledged in
favor of the Collateral Agent.
"Revlon Entities" means Revlon Guarantor, Revlon Worldwide Holdings,
Revlon Worldwide Parent, Revlon Worldwide and National Health Care Group, Inc.
"Revlon Guarantor" means Revlon Guarantor Corp., a Delaware
corporation.
"Revlon Guaranty" means the Revlon Guaranty dated as of March 20, 1997
made by Revlon Guarantor in favor of the Lenders, the Revolving Credit
Agreement Lenders, the Agents, the Revolving Agents and the Collateral Agent,
as such guaranty may be amended or otherwise modified from time to time in
accordance with its terms.
"Revlon Holdings Statement" shall mean a statement that the sum of the
fair market value of Revlon Worldwide (or any successor thereto) plus the fair
market value of National Health Care Group, Inc. constitutes at least 95% of
the fair market value of Revlon Holdings Inc.
"Revlon Pledge Agreement" means the Pledge Agreement dated as of March
20, 1997 made by Revlon Guarantor to the Collateral Agent, as such agreement
may be amended or otherwise modified from time to time in accordance with its
terms.
"Revlon Tax Agreements" shall have the meaning specified in the Revlon
Guaranty.
"Revlon Worldwide" means Revlon Worldwide Corporation, a Delaware
corporation.
"Revlon Worldwide Bonds" means the Senior Secured Discount Notes due
1998 and the Series B Senior Secured Discount Notes due 1998 issued by Revlon
Worldwide pursuant to the Revlon Worldwide Indenture.
"Revlon Worldwide Holdings" means Revlon Worldwide Holdings Inc., a
Delaware corporation.
32
"Revlon Worldwide Holdings Guaranty" means the Guaranty dated as of
March 20, 1997 made by Revlon Worldwide Parent in favor of the Lenders, the
Revolving Credit Agreement Lenders, the Agents, the Revolving Agents and the
Collateral Agent, as such guaranty may be amended or otherwise modified from
time to time in accordance with its terms.
"Revlon Worldwide Holdings Pledge Agreement" means the Pledge
Agreement dated as of March 20, 1997 made by Revlon Worldwide Holdings to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Revlon Worldwide Indenture" means the Indenture dated as of March 15,
1993 made by Revlon Worldwide in favor of The First National Bank of Boston, as
trustee.
"Revlon Worldwide Parent" means Revlon Worldwide (Parent) Corporation,
a Delaware corporation.
"Revlon Worldwide Parent Debt" means the Senior Secured Discount Notes
due 2001 issued by Revlon Worldwide Parent.
"Revlon Worldwide Parent Debt Document" means the Indenture dated as
of March 1, 1997 between Revlon Worldwide Parent and The Bank of New York, as
trustee, in connection with the Revlon Worldwide Parent Debt and any other
agreement or instrument which governs the terms of the Revlon Worldwide Parent
Debt.
"Revlon Worldwide Parent Pledge Agreement" means the Non-Recourse
Guaranty and Pledge Agreement dated as of March 20, 1997 made by Revlon
Worldwide Parent to the Collateral Agent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"Revolving Agents" has the meaning specified in the Preliminary
Statements.
"Revolving Administrative Agent" has the meaning specified in the
Preliminary Statements.
"Revolving Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Revolving Credit Agreement Lenders" has the meaning specified in the
Preliminary Statement.
33
"Revolving Credit Agreement Termination Date" means the date on which
the "Payment Obligations" (as defined in the Revolving Credit Agreement) shall
be "Fully Satisfied" (as defined in the Revolving Credit Agreement).
"Revolving Credit Facility" has the meaning given such term in the
Revolving Credit Agreement.
"Revolving Documentation Agent" has the meaning specified in the
Preliminary Statements.
"Revolving Syndication Agent" has the meaning specified in the
Preliminary Statements.
"Second Xxxxxxx Pledge Agreement" means the Second Amended and
Restated Non-Recourse Guaranty and Pledge Agreement dated as of December 16,
1996 made by Xxxxxxx and The Bank of New York, in its capacity as voting
trustee, to the Collateral Agent, as such agreement may be amended or otherwise
modified from time to time in accordance with its terms.
"Second Credit Agreement" has the meaning given such term in the
Revolving Credit Agreement.
"Second Mafco Collateral Account" has the meaning specified in the
Mafco Security Agreement.
"Second New FN Holdings Debt" means the 10-5/8% Senior Subordinated
Notes due 2003 issued by FN Escrow in an aggregate principal amount equal to
$575,000,000, which will be assumed by FN Holdings upon the merger of FN Escrow
with and into FN Holdings.
"Second New FN Holdings Debt Document" means the Indenture dated as of
September 19, 1996 between FN Escrow and The Bank of New York, as trustee, in
connection with the Second New FN Holdings Debt and any other agreement or
instrument which governs the terms of the Second New FN Holdings Debt.
"Security Agreements" means the Borrower Security Agreement, the
Borrower Parent Security Agreement and the Mafco Security Agreement.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which is subject to Title IV of ERISA,
and (a) that is
34
maintained for employees of such Person or any of its ERISA Affiliates and no
Person other than such Person and its ERISA Affiliates or (b) in respect of
which such Person or any of its ERISA Affiliates could have liability under
Section 4069 of ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Specified Holding Company Debt" means the 13% Subordinated Debentures
due March 1, 1999 issued by M&F pursuant to the Indenture dated as of March 1,
0000 xxxxxxx X&X xxx xxx Xxxxxx Xxxxxx Trust Company of New York and the 10%
Senior Subordinated Debentures due 1999 issued by Xxxxxxx pursuant to the
Indenture dated as of June 4, 1990 between Xxxxxxx and First Trust of
California, National Association (as successor trustee to Security Pacific
National Trust Company (New York)).
"Stockholders Agreement" means the Stockholders Agreement dated as of
October 3, 1994, among FN Parent, FN Holdings and Xxxxxx X. Xxxx, as such
agreement may be amended, modified or otherwise supplemented from time to time
with the consent of the Required Lenders.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the Voting
Stock of such corporation, (b) the interest in the capital or profits of such
partnership or joint venture or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries; provided, however, that for all
purposes of the Loan Documents, Toy Biz, Inc. shall not be a Subsidiary of any
of the Loan Parties.
"Supermajority Lenders" means at any time Lenders owed or holding at
least 67% of the sum of the aggregate principal amount of the Advances
outstanding at such time or, if no such principal amount is outstanding at such
time, Lenders holding at least a majority
35
in interest of the aggregate of the Commitments (provided that, for purposes
hereof, neither the Borrower nor any of its Affiliates, if a Lender, shall be
included in (x) the Lenders holding such amount of the Advances or having such
amount of the Commitments or (y) determining the aggregate unpaid principal
amount of the Advances or the total Commitments); provided, however, that if
any Lender shall be a Defaulting Lender at such time, there shall be excluded
from the determination of Supermajority Lenders at such time (i) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time and (ii) the aggregate unused portions of
the Commitments of such Lender at such time.
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Tax Certificate" has the meaning specified in Section 5.01(j)(xiii).
"Taxes" has the meaning specified in Section 2.12(a).
"Term Advance" has the meaning specified in Section 2.01(a).
"Term Borrowing" means a borrowing consisting of simultaneous Term
Advances of the same Type made by the Lenders.
"Term Commitment" means, with respect to any Lender at any time, the
amount set forth opposite such Lender's name on Schedule I hereto under the
caption "Term Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(c) as such
Lender's "Term Commitment", as such amount may be reduced at or prior to such
time pursuant to Section 2.04.
"Term Credit Agreement Termination Date" means the date on which the
Payment Obligations have been Fully Satisfied.
"Term Facility" means, at any time, the aggregate amount of the
Lenders' Term Commitments at such time.
"Termination Date" means the earlier of (a) March 20, 1999 or (b) the
date of termination in whole of the Term Commitments pursuant to Section 2.04
or 6.01.
"Term Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto, evidencing
the aggregate
36
indebtedness of the Borrower to such Lender resulting from the Term Advances
made by such Lender.
"Third Credit Agreement" has the meaning specified in the Revolving
Credit Agreement.
"Treasury Regulations" means the temporary and final regulations
promulgated under the Internal Revenue Code of 1986, as amended from time to
time.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unfunded Pension Liabilities" with respect to any Plan means the
excess, if any, of its accumulated benefit obligation ("ABO"), as determined in
accordance with Statement of Financial Accounting Standards No. 87 or any
successor thereto ("FAS 87") over the fair market value of its assets (as of
such date) (provided that in determining the ABO for this purpose, the
interest, mortality and other relevant actuarial assumptions used to fund such
Plan as of its most recent actuarial valuation) shall be used instead of the
interest, mortality and other relevant actuarial assumptions that would
otherwise be prescribed by FAS 87.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Part IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
37
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Term Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a "Term
Advance") to the Borrower at any time on or after the Effective Date but in any
event on or prior to April 1, 1997 in an amount not to exceed such Lender's
Term Commitment at such time. The Term Borrowing shall consist of Term Advances
made simultaneously by the Lenders ratably according to their Term Commitments.
Amounts borrowed under this Section 2.01 and repaid or prepaid may not be
reborrowed.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.15, each Borrowing shall be made on notice given not later than 11:00
A.M. (New York City time) on the first Business Day prior to the date of a
proposed Borrowing consisting of Base Rate Advances or the third Business Day
prior to the date of a proposed Borrowing consisting of Eurodollar Rate
Advances, by the Borrower to the Administrative Agent, which shall give to each
Lender prompt notice thereof by telecopier, telex or cable. Each such notice of
a Borrowing (a "Notice of Borrowing") shall be by telecopier, telex or cable,
and, with respect to a Notice of Borrowing by telex or cable, confirmed
immediately thereafter in writing, in substantially the form of Exhibit C
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing
and (iv) Interest Period for each Eurodollar Rate Advance included in such
Borrowing. In the case of a proposed Borrowing comprised of Eurodollar Rate
Advances, the Administrative Agent shall promptly notify the Borrower and each
Lender of the applicable interest rate under Section 2.06(a)(ii). Each Lender
shall, before 12:00 noon (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available by crediting the Borrower's Account.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by
38
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume, or at its option request
confirmation from such Lender, that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption or confirmation (as the case may be), make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available
to the Administrative Agent, such Lender and the Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.06 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the cost (expressed as a rate
per annum) to the Administrative Agent of funding such Lender's ratable
portion; provided, however, that, upon the request of such Lender, the
Administrative Agent shall provide such Lender with a certificate as to the
calculation of such amount. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
(e) The Borrower may not request a Borrowing comprised of Eurodollar
Rate Advances or, pursuant to Section 2.10, Convert Base Rate Advances into
Eurodollar Rate Advances or select a new Interest Period for existing
Eurodollar Rate Advances if, after the making or Conversion of such Advances or
the selection of such Interest Period, the number of outstanding Borrowings
comprised of Eurodollar Rate Advances having different Interest Periods
(whether of different duration or commencing on different dates) would exceed 6.
SECTION 2.03. Repayment. The Borrower shall repay to the
Administrative Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Term Advances then outstanding.
39
SECTION 2.04. Optional Termination or Reduction of the Commitments.
The Borrower shall have the right, upon at least three Business Days' prior
notice to the Administrative Agent, to terminate in whole or reduce ratably in
part the unused portions of the Term Commitments; provided that each partial
reduction (i) shall be in an aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and (ii) shall be made ratably among
the Lenders in accordance with their Commitments.
SECTION 2.05. Prepayments. (a) Optional. The Borrower may, upon at
least one Business Day's notice to the Administrative Agent, in the case of
Base Rate Advances, and three Business Days' notice to the Administrative
Agent, in the case of Eurodollar Rate Advances, stating the proposed date, and
the aggregate principal amount of the prepayment, and if such notice is given,
the Borrower shall, prepay the outstanding principal amounts of the Advances
comprising part of the same Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount so
prepaid; provided, however, that, with respect to any prepayment made in
connection with the provisions of Section 7(o) of the Mafco Guaranty, no such
notice shall be required; provided further that (x) each partial prepayment
(other than a prepayment made in connection with the provisions of Section 7(o)
of the Mafco Guaranty) shall be in an aggregate principal amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if the
aggregate principal amount of all Advances that constitute part of such
Borrowing is less, such aggregate principal amount) and (y) in the event any
such prepayment of Eurodollar Rate Advances is not made on the last day of an
Interest Period, the Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 8.04(b).
(b) Mandatory. (i) The Borrower shall, on any date (A) on which a cash
equity contribution is deposited in the Borrower Collateral Account as a result
of a loan made by First Gibraltar to the Borrower Parent pursuant to the terms
of the First Gibraltar Loan Agreement or on which a deposit of amounts paid
under or in connection with any Related Documents is made to the Mafco
Collateral Account or on which a deposit of amounts constituting Net Cash
Proceeds from an Asset Sale is made to the Mafco Collateral Account and (B)
either (I) a Default has occurred and is continuing, (II) the Borrower fails to
deliver a Look-Forward Certificate or a Deposit Certificate with respect to
such deposit in accordance with the terms of Section 5.01(k) or (III) the Mafco
Finance Required Lenders determine, in their reasonable discretion, within 15
Business Days following the date of the receipt of the Look-Forward Certificate
or within 2 Business Days following the date of the receipt of Deposit
Certificate, as the case may be, referred to in clause (B)(II), that the pro
forma amounts available to be loaned by First Gibraltar to Borrower Parent,
together with amounts received by Mafco pursuant to or in connection with any
Related Document, will be less than $15 million in any calendar quarter (of
which at least $10 million shall be from amounts available to be loaned by
First Gibraltar to Borrower Parent) or will not be sufficient to pay interest
on the Advances then outstanding and interest on the Debt then outstanding
under the
40
Revolving Credit Agreement, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings equal to an amount equal to the
excess of (x) the amount of such cash equity contribution or the amount on
deposit in the Mafco Collateral Account, as the case may be, plus any interest
on Collateral Investments made with such contribution or deposit over (y) the
sum of (1) the amount of interest and fees then due and payable in respect of
the Term Facility plus (2) the amount of expenses of the Administrative Agent
(including the reasonable fees and expenses of counsel to the Administrative
Agent) then due and payable. Each such prepayment shall be applied ratably to
the Term Facility and shall be made ratably among the Lenders in accordance
with their Commitments. Any such amounts remaining after the foregoing
application shall be applied as set forth in Section 2.05(b)(i) of the
Revolving Credit Agreement.
(ii) The Borrower shall:
(A) on the date of receipt by any A Company of the Net Cash Proceeds
of issuances, sales or liquidations of any capital stock (including any
securities convertible into or exchangeable for capital stock or any
warrants, rights or options to acquire capital stock) of any A Company
(other than any Net Cash Proceeds in respect of any Asset Sale),
(B) on the date of receipt by any A Company of any dividends, other
distributions or any loans or advances made in respect of the capital stock
of any other A Company (other than FN Holdings and FN Parent) or any
Designated Operating Company (provided that this clause (B) shall not apply
(1) the dividend made by MCG in accordance with the public announcements
made prior to the date hereof and (2) to the receipt by any A Company of
any dividends, other distributions or any loans or advances made in respect
of all or any portion of the proceeds received by Mafco or any of its
Subsidiaries from any Asset Sale or any sale, lease, transfer or other
disposition specified in clauses (i) through (iv) of the definition of
"Asset Sale"),
(C) on the date of receipt by any A Company of the proceeds of
distributions, dividends or any loans or advances made on account of or as
a result of the issuance, sale or liquidation of any capital stock
(including any securities convertible into or exchangeable for capital
stock or any warrants, rights or options to acquire capital stock but
excluding any Asset Sale) of, or the sale, issuance or incurrence of any
Debt by, any Designated Operating Company, and
(D) on the date of receipt by any A Company of the Net Cash Proceeds
from the sale, issuance or incurrence by any A Company of any Debt (other
than any sale, issuance or incurrence by Revlon Holdings Inc. of any Debt
to any of its Subsidiaries),
41
prepay an aggregate principal amount of the Advances comprising part of the
same Borrowings equal to an amount equal to the excess of (x) the amount so
received (except, in each case, to the extent (1) required pursuant to the
terms of any agreement or instruments relating to Debt existing on the date
hereof or otherwise approved by the Mafco Finance Required Lenders of any A
Company or Designated Operating Company to prepay or redeem or purchase such
Debt or (2) prohibited to be so applied by the terms of any agreement or
instrument relating to Debt existing on the date hereof or otherwise approved
by the Mafco Finance Required Lenders of any A Company or Designated Operating
Company) over (y) the sum of (1) the amount of interest and fees then due and
payable in respect of the Term Facility plus (2) the amount of expenses of the
Administrative Agent (including the reasonable fees and expenses of counsel to
the Administrative Agent) then due and payable. Each such prepayment shall be
applied ratably to the Term Facility and shall be made ratably among the
Lenders in accordance with their Commitments. Any such amounts remaining after
the foregoing application shall be applied as set forth in Section 2.05(b)(ii)
of the Revolving Credit Agreement.
(iii) The Borrower shall, on the date of receipt by Mafco or any of
its Subsidiaries (other than the Bank and its Subsidiaries) of the Net Cash
Proceeds from the sale, transfer or other disposition of (x) all or any portion
of the capital stock of the Bank (other than any issuance of capital stock by
the Bank or any Subsidiary of the Bank) or (y) any asset of the Bank, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings equal to an amount equal to the excess of (A) such Net Cash Proceeds
(other than the portion of such Net Cash Proceeds required to be paid to the
holders of the Class B common stock of FN Holdings and the holders of the FN
Holdings Preferred Stock) over (B) the sum of (1) the amount of interest and
fees then due and payable in respect of the Term Facility plus (2) the amount
of expenses of the Administrative Agent (including the reasonable fees and
expenses of counsel to the Administrative Agent) then due and payable. Each
such prepayment shall be applied ratably to the Term Facility and shall be made
ratably among the Lenders in accordance with their Commitments. Any such
amounts remaining after the foregoing application shall be applied as set forth
in Section 2.05(b)(iii) of the Revolving Credit Agreement.
(iv) On and after the date on which Mafco and its Subsidiaries have
received Net Cash Proceeds in an amount equal to the Asset Sale Threshold from
Asset Sales, upon any Asset Sale in respect of which Mafco and its Subsidiaries
have received Net Cash Proceeds (which, together with the aggregate amount of
Net Cash Proceeds from and after the Effective Date from Asset Sales, exceeds
the Asset Sale Threshold), the Borrower shall prepay an aggregate principal
amount of the Advances comprising part of the same Borrowings in an amount
equal to the excess of (x) the sum of (A) 50% of that portion of the Net Cash
Proceeds (up to $150 million) in excess of the Asset Sale Threshold (after
taking into account the aggregate amount of Net Cash Proceeds from and after
the Effective Date from Asset Sales)
42
from such Asset Sale plus (B) 100% of that portion of the Net Cash Proceeds
from such Asset Sale in excess of the sum of the Asset Sale Threshold plus $150
million (after taking into account the aggregate amount of Net Cash Proceeds
from and after the Effective Date from Asset Sales) over (y) the sum of (1) the
amount of interest and fees then due and payable in respect of the Term
Facility plus (2) the amount of expenses of the Administrative Agent (including
the reasonable fees and expenses of counsel to the Administrative Agent) then
due and payable. Each such prepayment shall be applied ratably to the Term
Facility and shall be made ratably among the Lenders in accordance with their
Commitments. Any such amounts remaining after the foregoing application shall
be applied as set forth in Section 2.05(b)(iv) of the Revolving Credit
Agreement.
(v) The Borrower shall, on each date that an "Event of Default" set
forth in Section 6.01(a) of the Revolving Credit Agreement shall have occurred
and be continuing, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings equal to an amount equal to the excess
of (x) the amount on deposit in the Second Mafco Collateral Account over (y)
the sum of (1) the amount of interest and fees then due and payable in respect
of the Term Facility plus (2) the amount of expenses of the Administrative
Agent (including the reasonable fees and expenses of counsel to the
Administrative Agent) then due and payable plus (3) the aggregate amount paid
(including the aggregate amount of interest, fees and expenses then due and
payable in respect of the "Facilities" under the Revolving Credit Agreement)
from such amount on deposit pursuant to the terms of Section 2.05(b)(v) and/or
2.06(b)(i) of the Revolving Credit Agreement. Each such prepayment of the Term
Facility shall be applied ratably to the Term Facility and shall be made
ratably among the Lenders in accordance with their Commitments. If an "Event of
Default" set forth in Section 6.01(a) of the Revolving Credit Agreement shall
occur and be continuing at the same time as an Event of Default set forth in
Section 6.01(a) shall occur and be continuing, such amount shall be applied pro
rata to the Term Facility and the "Facilities" under the Revolving Credit
Agreement and such pro rata amount shall be applied to the Term Facility as set
forth in this Section 2.05(b)(v).
(vi) The Borrower shall, on each date that an Event of Default set
forth in Section 6.01(a) shall have occurred and be continuing, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings equal to an amount equal to the excess of (x) the amount on deposit
in the Second Mafco Collateral Account over (y) the sum of (1) the amount of
interest then due and payable in respect of the Term Facility plus (2) the
amount of expenses of the Administrative Agent (including the reasonable fees
and expenses of counsel to the Administrative Agent) then due and payable. Each
such prepayment of the Term Facility shall be applied ratably to the Term
Facility and shall be made ratably among the Lenders in accordance with their
Commitments. Any amounts remaining on deposit in the Second Mafco Account after
the foregoing application shall be applied as set forth in
43
Section 2.05(b)(vi) of the Revolving Credit Agreement. If an Event of Default
set forth in Section 6.01(a) shall occur and be continuing at the same time as
an "Event of Default" set forth in Section 6.01(a) of the Revolving Credit
Agreement shall occur and be continuing, such amount (less the sum of (1) the
amount of interest then due and payable in respect of the "Facilities" under
the Revolving Credit Agreement plus (2) the amount of expenses of the
"Administrative Agent" under the Revolving Credit Agreement (including the
reasonable fees and expenses of counsel to such Administrative Agent) then due
and payable) shall be applied pro rata to the Term Facility and to the
"Facilities" under the Revolving Credit Agreement and such pro rata amount
shall be applied to the Term Facility as set forth in this Section 2.05(b)(vi).
(vii) If, as a result of the making of any prepayment required to be
made pursuant to this Section 2.05, the Borrower would incur costs pursuant to
Section 8.04(b), the Borrower may deposit the amount of such prepayment with
the Administrative Agent, for the benefit of the Lenders, in a cash collateral
account, until the end of the applicable Interest Period at which time such
payment shall be made. The Borrower hereby grants to the Administrative Agent,
for the benefit of the Lenders, a security interest in all amounts in which the
Borrower 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 Borrower hereby acknowledges and agrees are vested exclusively in
the Administrative Agent) to exercise dominion or control over any such
amounts.
SECTION 2.06. Interest. (a) Ordinary Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in
full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of the Base
Rate in effect from time to time plus the Applicable Margin in effect from
time to time, payable in arrears quarterly on the first Business Day of
each March, June, September and December during such periods, commencing
June 2, 1997, and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin in effect from time to time,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first day of
such Interest Period.
44
(b) Default Interest. The Borrower shall pay on demand interest on the
unpaid principal amount of each Advance that is not paid when due and on the
unpaid amount of all interest, fees and other amounts then due and payable
hereunder that is not paid when due from the due date thereof to the date paid,
at a rate per annum equal at such time to (i) in the case of any amount of
principal, 2% per annum above the rate of interest per annum required to be
paid on such Advance immediately prior to the date on which such amount became
due and payable and (ii) in the case of all other amounts, 2% per annum above
the rate per annum required to be paid on Base Rate Advances pursuant to
Section 2.06(a)(i) above.
SECTION 2.07. Interest Rate Determination. (a) The Administrative
Agent shall give prompt notice to the Borrower and each Lender of the
applicable interest rate determined by the Administrative Agent for purposes of
Section 2.06(a)(i) or (ii), and the applicable rate, if any, furnished by
Citibank for the purpose of determining the applicable interest rate under
Section 2.06(a)(i) or (ii).
(b) If Citibank cannot furnish timely information to the
Administrative Agent for determining the Eurodollar Rate, the Administrative
Agent shall forthwith notify the Borrower and each Lender that the interest
rate cannot be determined for such Eurodollar Rate Advances, whereupon (i) each
such Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii)
the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify
the Borrower that Citibank has determined that the circumstances causing such
suspension no longer exist.
(c) If the Required Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Eurodollar Rate Advances will
not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their pro rata shares of such Eurodollar Rate Advances for such
Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower that such Required
Lenders have determined that the circumstances causing such suspension no
longer exist.
(d) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith notify the Borrower and the Lenders and the
Interest Period for such Eurodollar Rate Advances will be one month.
45
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower agrees to pay to
the Administrative Agent for the account of the Lenders a commitment fee on the
average daily unused Term Commitment of such Lender, from the date hereof, in
the case of each Financial Institution, and from the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender, in the
case of each other Lender, until the Termination Date at a rate equal to 1/2 of
1% per annum, payable in arrears on the date of the Term Borrowing and on the
Termination Date.
(b) Other Fees. The Borrower shall pay to the Administrative Agent for
its own account such fees as are set forth in the fee letter dated March 20,
1997 between Mafco and Citibank, as the same may be amended or otherwise
modified from time to time.
SECTION 2.09. Increased Costs; Illegality. (a) Except as to taxes,
levies, imposts, deductions, charges, withholdings or liabilities with respect
thereto (it being understood that the Borrower shall not have any liability for
any taxes, levies, imposts, deductions, charges, withholdings or liabilities
with respect thereto, except as provided in Section 2.12), if, due to either
(i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation or
(ii) the compliance by any Lender with any guideline or request from any
central bank or other governmental authority in any case introduced, changed,
interpreted or requested after the date hereof (whether or not having the force
of law), there shall be (x) imposed, modified or deemed applicable any reserve,
special deposit or similar requirement against assets held by, or letters of
credit or guarantees issued by, or deposits in or for the account of, any
Lender or (y) imposed on any Lender any other condition relating to this
Agreement or the Advances made by it, and the result of any event referred to
in clause (x) or (y) shall be to increase the cost to such Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate Advances, then the
Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Administrative Agent) made within 60 days after the first
date on which such Lender has actual knowledge that it is entitled to make
demand for payment under this Section 2.09(a), pay to the Administrative Agent
for the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided, however, that if such Lender fails to
so notify the Borrower within such 60-day period, such increased cost shall
commence accruing on such later date on which the Lender notifies the Borrower;
provided further that, before making any such demand, such Lender agrees to use
its best efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate as to the amount of
such increased cost, submitted to the Borrower and the Administrative Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error.
46
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental or monetary authority in regard to capital adequacy (whether or
not having the force of law) including, without limitation, any guideline
contemplated by the report dated July 1988 entitled "International Convergence
of Capital Management and Capital Standards" issued by the Bank Committee on
Banking Regulations and Supervisory Practices, in any case in which such law,
regulation, guideline or request became effective or was made after the date
hereof, has or would have the effect of reducing the rate of return on the
capital of, or maintained by, such Lender or any corporation controlling such
Lender as a consequence of such Lender's Advances or Commitments hereunder and
other commitments of this type, by increasing the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender, to a level below that which such Lender or any corporation controlling
such Lender could have achieved but for such adoption, effectiveness, change or
compliance (taking into account such Lender's or such corporation's policies
with respect to capital adequacy), then the Borrower shall, from time to time,
pay such Lender, upon demand by such Lender (with a copy of such demand to the
Administrative Agent) made within 60 days after the first date on which such
Lender has actual knowledge that it is entitled to make demand for payment
under this Section 2.09(b) of such reduction in return, such additional amount
as may be specified by such Lender as being sufficient to compensate such
Lender for such reduction in return, to the extent that such Lender reasonably
determines such reduction to be attributable to the existence of such Lender's
commitment to lend hereunder; provided, however, that if such Lender fails to
so notify the Borrower within such 60-day period, such amounts shall commence
accruing on such later date on which the Lender notifies the Borrower. A
certificate as to such amounts submitted to the Borrower and the Administrative
Agent by such Lender shall be conclusive and binding for all purposes, absent
manifest error.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, then, upon written
notice by such Lender to the Borrower (with a copy to the Administrative
Agent), (i) each Eurodollar Rate Advance of such Lender will automatically
Convert into a Base Rate Advance and (ii) the obligation under each Facility
under which such Lender has a Commitment to make, or to Convert Base Rate
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist; provided, however, that,
before making any such demand, such Lender shall designate a different
Eurodollar Lending Office if the making of such a designation would avoid the
need for giving such notice and demand, and would not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. For
47
purposes of this Section 2.09(c), a notice to the Borrower by a Lender shall be
effective with respect to any Eurodollar Rate Advance on the last day of the
then current Interest Period for such Advance; provided, however, that, if it
is not lawful for such Lender to maintain such Advance until the end of the
Interest Period applicable thereto, then the notice to the Borrower shall be
effective upon receipt by the Borrower.
SECTION 2.10. Conversion of Advances. (a) Optional. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than noon (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.07 and
2.09, Convert all or any portion of the Advances of one Type comprising the
same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
on, and only on, the last day of an Interest Period for such Eurodollar Rate
Advances, and any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be subject to the limitation set forth in Section 2.02(e) and in
an amount not less than $5,000,000. Each such notice of Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
such Advances.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than $5,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(ii) Upon the occurrence and during the continuance of any Event of
Default (or, in the case of any involuntary proceeding described in Section
6.01(e), a Default), (A) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (B) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 11:00 A.M. (New York
City time) on the day when due in U.S. Dollars to the Administrative Agent at
the Administrative Agent's Account in same day funds. The Administrative Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or commitment fees ratably (other than amounts
payable pursuant to Section 2.09 or 2.12) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
48
specified in such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment of principal, interest or fees owed to such Lender is not made when due
hereunder or, in the case of a Lender under the Note or Notes held by such
Lender, to charge from time to time against any or all of the Borrower's
accounts with such Lender any amount so due.
(c) All computations of interest based on the Eurodollar Rate, the
Base Rate or the Federal Funds Rate and of commitment fees shall be made by the
Administrative Agent, on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or commitment fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under any Note shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender
hereunder or under any Note that the Borrower will not make such payment in
full, the Administrative Agent may assume, or at its option request
confirmation from the Borrower, that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do
49
not specify the Advances to which, or the manner in which, such funds are to be
applied, the Administrative Agent may, but shall not be obligated to, elect to
distribute such funds to each Lender ratably in accordance with such Lender's
proportionate share of the principal amount of all outstanding Advances, in
repayment or prepayment of the outstanding Advances or other Obligations owed
to such Lender, and for application to such principal installments, as the
Administrative Agent shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, (i) taxes imposed on its income, and franchise taxes and
backup withholding taxes imposed on it, by the United States or the
jurisdiction under the laws of which such Lender or the Administrative Agent
(as the case may be) is organized or any political subdivision or taxing
authority thereof or therein, (ii) taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Lender's or, in either such
case, the Administrative Agent's principal office or Applicable Lending Office
or any political subdivision or taxing authority thereof or therein and (iii)
United States withholding tax payable with respect to payments hereunder under
laws (including, without limitation any statute, treaty, ruling, determination
or regulation) in effect on the Initial Date with respect to such Lender or the
Administrative Agent, but not excluding any United States withholding tax
payable as a result of any change in such laws occurring after the Initial Date
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions of Taxes (including deductions of Taxes
applicable to additional sums payable under this Section 2.12) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions of Taxes been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law; provided, however, that any such Lender shall
designate a different Applicable Lending Office if, in the judgment of such
Lender, such designation would avoid the need for, or reduce the amount of, any
Taxes required to be deducted from or in respect of any sum payable hereunder
to such Lender or the Administrative Agent and would not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or
50
registration of, or otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.12) paid by such Lender or the Administrative
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto; provided
that, in the event such Lender or the Administrative Agent, as the case may be,
successfully contests the assessment of such Taxes or Other Taxes or any
liability arising therefrom or with respect thereto, such Lender or the
Administrative Agent shall refund, to the extent of any refund thereof made to
such Lender or the Administrative Agent, any amounts paid by the Borrower under
this Section 2.12(c) in respect of such Taxes, Other Taxes or liabilities
arising therefrom or with respect thereto. Each Lender and the Administrative
Agent agree that it will contest such Taxes, Other Taxes or liabilities if (i)
the Borrower furnishes to it an opinion of reputable tax counsel acceptable to
such Lender or the Administrative Agent to the effect that such Taxes or Other
Taxes were wrongfully or illegally imposed and (ii) such Lender or the
Administrative Agent determines, in its sole discretion, that it would not be
disadvantaged or prejudiced in any manner whatsoever as a result of such
contest. This indemnification shall be made within 30 days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to
in Section 8.02, appropriate evidence of payment thereof. If no Taxes are
payable in respect of any payment hereunder or under the Notes by the Borrower
from an account or branch outside the United States or on behalf of the
Borrower by a payor that is not a United States person, the Borrower will
furnish to the Administrative Agent, at such address, a certificate from each
appropriate taxing authority, or an opinion of counsel acceptable to the
Administrative Agent, in either case stating that such payment is exempt from
or not subject to Taxes. For purposes of this Section 2.12, the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States and the Administrative Agent, if organized under the laws of a
jurisdiction outside the United States, shall, on or prior to the Initial Date
and from time to time thereafter if requested in writing by the Borrower or the
Administrative Agent (but only so long thereafter as such Lender or the
Administrative Agent remains lawfully able to do so), provide the Borrower and
(in the case of any such Lender other than the Administrative Agent) the
Administrative Agent with two duly completed copies of Internal Revenue Service
form 1001 or 4224, as appropriate, or any successor form prescribed by the
Internal Revenue Service,
51
certifying that such Lender or the Administrative Agent is entitled to benefits
under an income tax treaty to which the United States is a party that reduces
the rate of withholding tax on payments under this Agreement or the Notes or
certifying that the income receivable pursuant to this Agreement or the Notes
is effectively connected with the conduct of a trade or business in the United
States.
(f) For any period with respect to which the Administrative Agent or a
Lender has failed to provide the Borrower with the appropriate forms described
in subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which such person was originally required to
provide such forms, or if such forms are otherwise not required under
subsection (e) above), the Administrative Agent or such Lender shall not be
entitled to increased payments or indemnification under subsection (a) or (c)
above with respect to Taxes imposed by the United States; provided, however,
that should the Administrative Agent or a Lender become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as the Administrative Agent or such Lender shall reasonably
request to assist the Lender to recover such Taxes if, in the judgment of the
Borrower such steps would avoid the need for, or reduce the amount of, any
Taxes required to be deducted from or in respect of any sum payable hereunder
to the Administrative Agent or such Lender and would not, in the judgment of
the Borrower, be disadvantageous to the Borrower.
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.12 shall survive the payment in full of principal and interest
hereunder and under the Notes.
(h) If a Lender shall change its Applicable Lending Office other than
(i) at the request of the Borrower or (ii) at a time when such change would not
result in this Section 2.12 requiring the Borrower to make a greater payment
than if such change had not been made, such Lender shall not be entitled to
receive any greater payment under this Section 2.12 than such Lender would have
been entitled to receive had it not changed its Applicable Lending Office.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.09 or 2.12) in excess of its ratable share of payments on
account of the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such interests or participating
interests in the Advances owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that, if all or any portion of such excess payment is
thereafter recovered from such purchasing
52
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing an interest or participating interest from another Lender
pursuant to this Section 2.13 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such interest or participating interest, as the case may be, as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such interest or participating interest, as the case may be.
SECTION 2.14. Removal of Lender. In the event that any Lender demands
payment of costs or additional amounts pursuant to Section 2.09 or Section 2.12
or asserts pursuant to Section 2.09(c) that it is unlawful for such Lender to
make Eurodollar Rate Advances, then (subject to such Lender's right to rescind
such demand or assertion within 10 days after the notice from the Borrower
referred to below) the Borrower may, upon 20 days' prior written notice to such
Lender and the Administrative Agent, elect to cause such Lender to assign its
Advances and Commitments in full to an assignee institution selected by the
Borrower that meets the criteria of an Eligible Assignee and is reasonably
satisfactory to the Administrative Agent, so long as such Lender receives
payment in full in cash of the outstanding principal amount of all Advances
made by it and all accrued and unpaid interest thereon and all other amounts
due and payable to such Lender as of the date of such assignment (including
without limitation amounts owing pursuant to Section 2.09 or 2.12), and in such
case such Lender agrees to make such assignment, and such assignee shall agree
to accept such assignment and assume all obligations of such Lender hereunder,
in accordance with Section 8.07.
SECTION 2.15. Defaulting Lender. (a) In the event that, at any one
time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be
required to make any payment hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then the Borrower may, so long as no
Default shall occur or be continuing at such time and to the fullest extent
permitted by applicable law, set-off and otherwise apply the Obligation of the
Borrower to make such payment to or for the account of such Defaulting Lender
against the Obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that the Borrower shall so set-off and otherwise apply
the Obligation of the Borrower to make any such payment against the Obligation
of such Defaulting Lender to make any such Defaulted Advance on any date, the
amount so set-off and otherwise applied by the Borrower shall constitute for
all purposes of this Agreement and the other Loan Documents an Advance by such
Defaulting Lender made on such date under the Facility pursuant to which such
Defaulted
53
Advance was originally required to have been made pursuant to Section 2.01.
Such Advance shall be considered, for all purposes of this Agreement, to
comprise part of the Borrowing in connection with which such Defaulted Advance
was originally required to have been made pursuant to Section 2.01. The
Borrower shall notify the Administrative Agent at any time the Borrower reduces
the amount of the Obligation of the Borrower to make any payment otherwise
required to be made by it hereunder or under any other Loan Document as a
result of the exercise by the Borrower of its right set forth in this
subsection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set-off and otherwise applied in respect
of such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by the Borrower to or for the account of
such Defaulting Lender which is paid by the Borrower, after giving effect to
the amount set-off and otherwise applied by the Borrower pursuant to this
subsection (a), shall be applied by the Administrative Agent as specified in
subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
the Administrative Agent, the Collateral Agent or any of the other Lenders and
(iii) the Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting Lender,
then the Administrative Agent may, on its behalf or on behalf of such other
Lenders and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such
Defaulting Lender to the payment of each such Defaulted Amount up to the amount
required to pay such Defaulted Amount. In the event that the Administrative
Agent shall so apply any such amount to the payment of any such Defaulted
Amount on any date, the amount so applied by the Administrative Agent shall
constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such amount
so applied by the Administrative Agent shall be retained by the Administrative
Agent or distributed by the Administrative Agent to such other Lenders, ratably
in accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lenders and, if the amount
of such payment made by the Borrower shall at such time be insufficient to pay
all Defaulted Amounts owing at such time to the Administrative Agent, the
Collateral Agent and the other Lenders, in the following order of priority:
(i) first, to the Administrative Agent and the Collateral Agent for
any Defaulted Amounts then owing to the Administrative Agent and the
Collateral Agent, ratably in accordance with such respective Defaulted
Amounts then owing to the Administrative Agent and the Collateral Agent;
and
54
(ii) second, to any other Lenders for any Defaulted Amounts then owing
to such other Lenders, ratably in accordance with such respective Defaulted
Amounts then owing to such other Lenders.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender shall be
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative Agent
the Collateral Agent or any other Lender shall be required to pay or distribute
any amount hereunder or under any other Loan Document to or for the account of
such Defaulting Lender, then the Borrower, the Collateral Agent or such other
Lender shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held
by the Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with Citibank, in the name
and under the control of the Administrative Agent, but subject to the
provisions of this subsection (c). The terms applicable to such account,
including the rate of interest payable with respect to the credit balance of
such account from time to time, shall be Citibank's standard terms applicable
to escrow accounts maintained with it. Any interest credited to such account
from time to time shall be held by the Administrative Agent in escrow under,
and applied by the Administrative Agent from time to time in accordance with
the provisions of, this subsection (c). The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in escrow
from time to time to the extent necessary to make any Advances required to be
made by such Defaulting Lender and to pay any amount payable by such Defaulting
Lender hereunder and under the other Loan Documents to the Administrative
Agent, the Collateral Agent or any other Lender, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and amounts
required to be made or paid at such time, in the following order of priority:
(i) first, to the Administrative Agent and the Collateral Agent for
any amount then due and payable by such Defaulting Lender to the
Administrative Agent and the Collateral Agent hereunder, ratably in
accordance with such respective amounts then due and payable to the
Administrative Agent and the Collateral Agent;
55
(ii) second, to any other Lenders for any amount then due and payable
by such Defaulting Lender to such other Lenders hereunder, ratably in
accordance with such respective amounts then due and payable to such other
Lenders; and
(iii) third, to the Borrower for any Advance then required to be made
by such Defaulting Lender pursuant to the Commitment of such Defaulting
Lender.
In the event that such Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at such
time with respect to such Defaulting Lender shall be distributed by the
Administrative Agent to such Defaulting Lender and applied by such Defaulting
Lender to the Obligations owing to such Lender at such time under this
Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies which the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and which the Administrative Agent, the Collateral Agent or any Lender may have
against such Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date. Article II
hereof shall be effective on and as of the date (the "Effective Date"), on
which each of the following conditions precedent shall have been satisfied or
duly waived:
(a) There shall have been no adverse change since December 16, 1996 in
the corporate and legal structure and capitalization of each A Company,
each Designated Operating Company and the Bank, including the terms and
conditions of the charter, bylaws and each class of capital stock of each
such Person and of each agreement or instrument relating to such structure
or capitalization, except as contemplated by existing consents, amendments
and waivers delivered in connection with the Existing Term Credit
Agreement; the Lenders shall be satisfied with the corporate and legal
structure and capitalization of each of Revlon Guarantor, Revlon Worldwide
Parent, Revlon Worldwide Holdings, Consolidated Cigar Holdings and PCT,
including the terms and conditions of the charter, by-laws and each class
of capital stock of each such Person and of each agreement or instrument
relating to such structure or capitalization.
56
(b) Before giving effect to the transactions contemplated by this
Agreement and the Revolving Credit Agreement, there shall have occurred no
Material Adverse Change since December 31, 1995 relating to any of the Loan
Parties, the FN Parties and the Designated Operating Companies.
(c) There shall exist no action, suit, investigation, litigation or
proceeding affecting any of the Loan Parties, the FN Parties and the
Designated Operating Companies pending or threatened before any court,
governmental agency or arbitrator that (i) would be reasonably likely to
have a Material Adverse Effect (in the case of clause (a) of the definition
thereof, the term "Person" shall refer to such Loan Party, such FN Party or
such Designated Operating Company, as the case may be) or (ii) purports to
affect the legality, validity or enforceability of this Agreement, the
Revolving Credit Agreement, any Note, any other Loan Document, any Related
Document, any FN Document or the consummation of the transactions
contemplated hereby and thereby.
(d) Nothing shall have come to the attention of the Lenders in respect
of any of the A Companies, the Designated Operating Companies or the Bank
that is inconsistent with or different from in any adverse respect any of
the results of the due diligence investigations of such Persons conducted
in connection with the Original Credit Agreement, the Second Credit
Agreement, the Third Credit Agreement, the Fourth Credit Agreement or the
Existing Term Credit Agreement; the Lenders shall be satisfied with the
results of their due diligence investigation of Revlon Guarantor, Revlon
Worldwide Parent, Revlon Worldwide Holdings, Consolidated Cigar Holdings
and PCT; and the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of each A
Company, each Designated Operating Company, Consolidated Cigar Holdings,
PCT or the Bank as they shall have requested.
(e) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lenders and all accrued expenses of the
Administrative Agent (including the reasonable fees and expenses of counsel
to the Administrative Agent).
(f) The Lenders shall be satisfied that the Borrower has the ability
to service the interest payments in respect of the Term Facility and the
Revolving Credit Facility.
(g) Revlon Worldwide Parent shall have (i) issued the Revlon Worldwide
Parent Debt on terms and conditions satisfactory to the Lenders (including,
without limitation, permitting at least 22.5 million shares of Revlon to be
pledged in favor of the Collateral Agent) and (ii) received Net Cash
Proceeds from the issuance of the Revlon Worldwide Parent Debt in an amount
sufficient, in the reasonable judgment of
57
the Lenders,when aggregated with (A) the proceeds of any dividends or other
distributions paid or payable by MCG (directly or indirectly) to Mafco, (B)
other funds available to Mafco for such purposes and (C) the proceeds of
the Term Advances, to defease the Revlon Worldwide Bonds.
(h) Mafco and its Subsidiaries shall have provided for the defeasance
of the Revlon Worldwide Bonds on terms and conditions acceptable to the
Lenders and such defeasance shall be effective as promptly as practicable
following the 123rd day after the Term Borrowing but in any event not later
than the Business Day immediately following the 130th day after such Term
Borrowing.
(i) All "Payment Obligations" under the Existing Credit Agreement
shall have been "Fully Satisfied" (as defined in the Existing Credit
Agreement).
(j) All "Payment Obligations" under the Existing Term Credit Agreement
shall have been "Fully Satisfied" (as defined in the Existing Term Credit
Agreement).
(k) The Administrative Agent or the Collateral Agent, as the case may
be, shall have received on or before the Effective Date the following, each
dated as of the Effective Date (unless otherwise specified), in form and
substance satisfactory to the Administrative Agent (unless otherwise
specified) and (except for the Notes) in sufficient copies for each Lender:
(i) the Term Credit Notes to the order of the Lenders;
(ii) certified copies of the resolutions of the board of
directors of the Borrower and each other Loan Party approving this
Agreement, the Notes and each other Loan Document to which it is or is
to be a party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
this Agreement, the Notes and each other Loan Document;
(iii) a certificate of the Secretary or an Assistant Secretary of
the Borrower and each other Loan Party certifying the names and true
signatures of the officers of the Borrower and such other Loan Party
authorized to sign this Agreement, the Notes and each other Loan
Document to which they are or are to be parties and the other
documents to be delivered hereunder and thereunder;
(iv) a copy of a certificate of the Secretary of State of the
state of incorporation of the Borrower, each other Loan Party, each
Designated Operating Company and each other A Company, dated
reasonably near the
58
Effective Date, listing the charter of such Person and each amendment
thereto on file in his office and certifying that (A) such amendments
are the only amendments to such Person's charter on file in his
office, (B) such Person has paid all franchise taxes to the date of
such certificate and (C) such Person is duly incorporated or organized
and in good standing under the laws of such state, and a copy of a
certificate of corporate existence of the Bank, dated reasonably near
the Effective Date from the Office of Thrift Supervision;
(v) (A) a certificate of each A Company (other than the Revlon
Entities) signed on behalf of such Person by its President or a Vice
President and its Secretary or any Assistant Secretary, dated as of
the Effective Date (the statements made in such certificate shall be
true on and as of the Effective Date), certifying as to (1) the
absence of any amendments to the charter of such Person since the date
of the Secretary of State's certificate referred to in clause (iv)
above, (2) the absence of any amendments to the bylaws of such Person
since the date of the certificate in respect of such bylaws that was
delivered to the Administrative Agent pursuant to the terms of Section
3.01 or 3.02, as the case may be, of the Original Credit Agreement,
(3) the due incorporation and good standing of such Person as a
corporation under the laws of the relevant state of incorporation, and
the absence of any proceeding for the dissolution or liquidation of
such Person, (4) the truth in all material respects of the
representations and warranties made by such Person contained in the
Loan Documents as though made on and as of the Effective Date and (5)
the absence of any event occurring and continuing, or resulting from
the Effective Date, that constitutes a Default, (B) a certificate of
Xxxxxxx Guarantor signed on behalf of Xxxxxxx Guarantor by its
President or a Vice President and its Secretary or any Assistant
Secretary, dated as of the Effective Date (the statements made in such
certificate shall be true on and as of the Effective Date), certifying
as to (1) the absence of any amendments to the charter of Xxxxxxx
since the date of the Secretary of State's certificate referred to in
59
clause (iv) above, (2) the absence of any amendments to the bylaws of
Xxxxxxx since the date of the certificate in respect of such bylaws
that was delivered to the Administrative Agent pursuant to the terms
of Sections 3.01 and 3.02 of the Original Credit Agreement and (3) the
due incorporation and good standing of Xxxxxxx as a corporation
organized under the laws of the State of Delaware, and the absence of
any proceeding for the dissolution or liquidation of Xxxxxxx, (C) a
certificate of the Borrower signed on behalf of the Borrower by its
President or a Vice President and its Secretary or any Assistant
Secretary, dated as of the Effective Date (the statements made in such
certificate shall be true on and as of the Effective Date), certifying
as to (1) the absence of any amendments to the charter of Marvel since
the date of the Secretary of State's certificate referred to in clause
(iv) above, (2) the absence of any amendments to the bylaws of Marvel
since the date of the certificate in respect of such bylaws that was
delivered to the Administrative Agent pursuant to the terms of
Sections 3.01 and 3.02 of the Original Credit Agreement, and (3) the
due incorporation and good standing of Marvel as a corporation
organized under the laws of the State of Delaware, and the absence of
any proceeding for the dissolution or liquidation of Marvel, (D) a
certificate of New World Guarantor signed on behalf of New World
Guarantor by its President or a Vice President and its Secretary or
any Assistant Secretary, dated as of the Effective Date (the
statements made in such certificate shall be true on and as of the
Effective Date), certifying as to (1) the absence of any amendments to
the charter of New World since the date of the Secretary of State's
certificate referred to in clause (iv) above, (2) the absence of any
amendments to the bylaws of New World since the date of the
certificate in respect of such bylaws that was delivered to the
Administrative Agent pursuant to the terms of Section 3.02 of the
Original Credit Agreement and (3) the due incorporation and good
standing of New World as a corporation organized under the laws of the
State of Delaware, and the absence of any proceeding for the
dissolution or liquidation of New World, (E) a certificate of C&F
Guarantor signed on behalf of C&F Guarantor by its President or a Vice
President and its Secretary or any Assistant Secretary, dated as of
the Effective Date (the statements made in such certificate shall be
true on and as of the Effective Date), certifying as to (1) the
absence of any amendments to the charter of MCG since the date of the
Secretary of State's certificate referred to in clause (iv) above, (2)
the absence of any amendments to the bylaws of MCG since the date of
the certificate in respect of such bylaws that was delivered to the
Administrative Agent pursuant to the terms of Section 3.01 of the
Third Credit Agreement and (3) the due incorporation and good standing
of MCG as a corporation organized under the laws of the State of
Delaware, and the absence of any proceeding for the dissolution or
liquidation of MCG and (F) a certificate of Revlon Guarantor signed on
behalf of Revlon Guarantor by its President or a Vice President and
its Secretary or any Assistant Secretary, dated as of the Effective
Date (the statements made in such certificate shall be true on and as
of the Effective Date), certifying as to (1) the absence of any
amendments to the charters of the Revlon Entities and Revlon since the
date of the relevant Secretary of State's certificate referred to in
clause (iv) above, (2) the trueness and correctness of the copies of
the bylaws of each Revlon Entity and Revlon attached to such
certificate, (3) the due incorporation and good standing of each
Revlon Entity and Revlon as a corporation under the laws of the
relevant state of incorporation, and the absence of any proceeding for
the dissolution or liquidation of any such Person, (4) the truth in
all material respects of the representations and warranties made by
such Person contained in the Loan
60
Documents as though made on and as of the Effective Date and (5) the
absence of any event occurring and continuing, or resulting from the
Effective Date, that constitutes a Default;
(vi) a certificate of Mafco to the effect (A) that no information
provided by Mafco or any Subsidiary of Mafco to the Administrative
Agent or any Lender in connection with the Existing Term Credit
Agreement or this Agreement, as such information has been amended,
supplemented or superseded by any other information delivered to the
same parties receiving such information contained or contains any
material misstatement of fact or omitted or omits to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading except
that, as to any financial model included therein, such certificate
shall be limited to a statement that such model was prepared in good
faith by Mafco's or such Subsidiary's management based on assumptions
believed to be reasonable when made and may be further qualified by a
statement to the effect that because assumptions as to future results
are inherently subject to uncertainty and contingencies beyond Mafco's
or such Subsidiary's control, actual results of Mafco or such
Subsidiary may be higher or lower, (B) the Mafco Guaranty is in full
force and effect on the Effective Date, (C) that other than the
agreements referenced in Section 3.01(k)(x), the charter documents of
each A Company and each FN Party, the Loan Documents and the Related
Documents, there is no other agreement, contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any A Company or any FN Party that imposes any
material Obligation or any material restriction on any A Company or
any FN Party, (D) that the agreements referenced in Section
3.01(h)(xi) are the only agreements, contracts, loan agreements,
indentures, mortgages, deeds of trust, leases or other instruments (1)
evidencing Debt of any Designated Operating Company or any of their
Subsidiaries outstanding on the Effective Date, (2) governing the
terms of Debt of any Designated Operating Company or any of their
Subsidiaries outstanding on the Effective Date, or (3) containing any
commitment or other agreement by any Person to extend credit that
would constitute Debt to any Designated Operating Company or any of
their Subsidiaries, in each case that imposes or will impose material
Obligations or material restrictions on any Designated Operating
Company and its Subsidiaries taken as a whole and (E) that there is no
other agreement or contract binding on or affecting any Designated
Operating Company or any of their Subsidiaries that contains
provisions that would restrict any Loan Party from performing or that
would impair the ability of any Loan Party to perform, any of the
obligations of such Loan Party under the Loan Documents;
61
(vii) the Mafco Security Agreement in substantially the form of
Exhibit D duly executed by Mafco, together with evidence that all
other action that the Administrative Agent may deem necessary or
desirable in order to perfect and protect the Liens created by such
Security Agreement have been taken, together with:
(1) acknowledgement copies or stamped receipt copies of
proper amendments to the financing statements previously filed in
connection with the Mafco Security Agreement; and
(2) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the Liens created by Mafco Security Agreement;
(viii) the Mafco Guaranty in substantially the form of Exhibit
E-1, duly executed by Mafco, the C&F Guaranty in substantially the
form of Exhibit E-2, duly executed by the C&F Guarantor, the Cigar
Guaranty in substantially the form of Exhibit E-3, duly executed by
Cigar Guarantor, the Xxxxxxx Guaranty in substantially the form of
Exhibit E-4, duly executed by Xxxxxxx Guarantor, the Flavors Guaranty
in substantially the form of Exhibit E-5, duly executed by Flavors
Guarantor, the New World Guaranty in substantially the form of Exhibit
E-6, duly executed by New World Guarantor, the Revlon Guaranty in
substantially the form of Exhibit E-7, duly executed by Revlon
Guarantor, and the Revlon Worldwide Holdings Guaranty in substantially
the form of Exhibit E-8, duly executed by Revlon Worldwide Holdings.
(ix) the C&F Pledge Agreement in substantially the form of
Exhibit F-1, duly executed by C&F Guarantor, the New World Pledge
Agreement in substantially the form of Exhibit F-2, duly executed by
New World Guarantor, the Revlon Pledge Agreement in substantially the
form of Exhibit F-3, duly executed by Revlon Guarantor, the Revlon
Worldwide Holdings Pledge Agreement in substantially the form of
Exhibit F-4, duly executed by Revlon Worldwide Holdings and the Revlon
Worldwide Parent Pledge Agreement in substantially the form of Exhibit
F-5, duly executed by Revlon Worldwide Parent, together with:
(1) acknowledgment copies or stamped receipt copies of (A)
proper financing statements in respect of the Revlon Pledge
Agreement, the Revlon Worldwide Holdings Pledge Agreement and the
Revlon Worldwide Parent Pledge Agreement, in form and substance
satisfactory to the Administrative Agent and (B) proper
amendments to
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the financing statements previously filed in connection with each
other Pledge Agreement referred to above, in form and substance
satisfactory to the Administrative Agent,
(2) completed requests for information, dated on or before
the Effective Date, listing the financing statements referred to
in clause (1) above,
(3) in the case of the New World Pledge Agreement,
instruments evidencing the Pledged Debt referred to therein
endorsed in blank, and
(4) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the Liens created by the each such Pledge Agreement has
been taken;
(x) a certificate of Mafco to the effect that, other than the
agreements delivered to the Administrative Agent pursuant to Section
3.01(g)(xii)(B) and Section 3.02(i)(xi)(B) of the Original Credit
Agreement and other than as specified in and delivered pursuant to
such certificate and the certificate of Mafco delivered pursuant to
Section 3.01(f)(x) of the Second Credit Agreement, Section 3.01(f)(ix)
of the Third Credit Agreement and Section 3.01(f)(x) of the Fourth
Credit Agreement and Section 3.01(h)(xi) of the Existing Credit
Agreement, there is no other contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument (1) evidencing Debt
of any A Company, (2) governing the terms of Debt of any A Company, or
(3) containing any commitment or other agreement by any Person to
extend credit that would constitute Debt to any A Company or any
Designated Operating Company or any of its Subsidiaries, in each case
that imposes any material obligation or any material restriction on
any A Company or any Designated Operating Company and its
Subsidiaries, taken as a whole;
(xi) such financial, business and other information regarding
each Loan Party and their Subsidiaries as the Lenders shall have
reasonably requested, including, without limitation, information as to
possible contingent liabilities, tax matters, environmental matters,
obligations under ERISA and Welfare Plans, collective bargaining
agreements and other arrangements with employees, annual financial
statements of the Bank dated December 31, 1995, interim financial
statements of the Bank dated the end of the most recent fiscal quarter
for which financial statements are available, pro forma financial
statements as to the Borrower, and forecasts prepared by management of
the
63
Bank, in form and substance satisfactory to the Lenders, of balance
sheets, income statements and cash flow statements of the Bank on a
quarterly basis for the term of the Revolving Credit Facility;
(xii) certified copies of (A) a voting trust agreement (each in
form and substance satisfactory to the Lenders) relating to the
capital stock of Revlon Guarantor and Revlon Worldwide Holdings and
(B) the Revolving Credit Agreement;
(xiii) an assignment, in form and substance satisfactory to the
Lenders, of the rights of Mafco or one or more of its Subsidiaries of
a Registration Rights Agreement in respect of the capital stock of
Revlon owned by Mafco and its Subsidiaries;
(xiv) a letter, in form and substance satisfactory to the
Administrative Agent, from Mafco to Ernst & Young, independent
certified public accountants, advising such accountants that the
Administrative Agent and the Lenders have relied upon the financial
statements of Xxxxxxx, New World and MCG in determining whether to
enter into the Loan Documents and have been authorized to exercise all
rights of Mafco to require such accountants to disclose any and all
financial statements and any other information of any kind that they
may have with respect to such Persons and their Subsidiaries and
directing such accountants to comply with any reasonable request of
the Administrative Agent or any Lender for such information;
(xv) a letter, in form and substance satisfactory to the
Administrative Agent, from the Bank to KPMG Peat Marwick, independent
certified public accountants, advising such accountants that the
Administrative Agent and the Lenders have relied upon the financial
statements of Revlon and the Bank in determining whether to enter into
the Loan Documents and have been authorized to exercise all rights of
Revlon and the Bank to require such accountants to disclose any and
all financial statements and any other information of any kind that
they may have with respect to such Persons and their Subsidiaries and
directing such accountants to comply with any reasonable request of
the Administrative Agent or any Lender for such information;
(xvi) favorable opinions of counsel to Mafco reasonably
satisfactory to the Lenders, in form and substance reasonably
satisfactory to the Lenders;
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(xvii) a favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent; and
(xviii) such other information, approvals, opinions or other
documents as the Administrative Agent may reasonably request.
SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation
of each Lender to make an Advance on the occasion of each Borrowing (including
the initial Borrowing), shall be subject to the further conditions precedent
that on the date of such Borrowing (a) the following statements shall be true
(and each of the giving of the applicable Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that both on the date of such
notice and on the date of such Borrowing such statements are true):
(i) The representations and warranties contained in the Loan Documents
are correct in all material respects on and as of such date, before and
after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, except to the
extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties were true,
correct and complete in all material respects on and as of such earlier
date; and
(ii) No event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds
therefrom, which constitutes a Default,
and (b) the Administrative Agent shall have received such other certificates,
opinions and other documents as any Lender through the Administrative Agent may
reasonably request in order to confirm (i) the accuracy of the Borrower's
representations and warranties, (ii) the Borrower's timely compliance with the
terms, covenants and agreements set forth in this Agreement, and (iii) the
absence of any Default.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender
prior to the initial Borrowing specifying its objection thereto and such Lender
shall not have made available to the Administrative Agent such Lender's ratable
portion of such Borrowing.
65
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed except where the failure to so qualify or be licensed would not
have a Material Adverse Effect (with respect to clause (a) of the
definition thereof, the term "Person" shall refer to the Borrower) and
(iii) has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding capital stock of the
Borrower has been validly issued, is fully paid and non-assessable and is
owned by the Borrower Parent free and clear of all Liens except for the
Liens created by the Collateral Documents.
(b) Set forth on Schedule II hereto is a complete and accurate list
relating to the Borrower, showing as of the date hereof the jurisdiction of
its incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned (directly or
indirectly) by Borrower Parent and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and similar
rights at the date hereof.
(c) The execution, delivery and performance by the Borrower of this
Agreement, the Notes, each Loan Document and each Related Document to which
it is or is to be a party and the consummation by the Borrower of the
transactions contemplated hereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do
not (i) contravene the Borrower's charter or by-laws, (ii) violate any law
(including, without limitation, the Exchange Act), rule, regulation
(including, without limitation, Regulation X of the Board of Governors of
the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default under, any loan agreement, contract, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting
any Loan Party, any of its Subsidiaries (other than any Subsidiaries of the
Borrower) or any of its or their properties, the effect
66
of which conflict, breach or default is reasonably likely to have a
Material Adverse Effect (with respect to clause (a) of the definition
thereof, the term "Person" shall refer to the Borrower) or (iv) except for
the liens created by the Collateral Documents, the voting trust agreements
(other than the voting trust agreements relating to the capital stock of FN
Holdings and FN Parent) referred to in Sections 3.01(g)(xvi) and
3.02(i)(xv) of the Original Credit Agreement, the Amended and Restated
Voting Trust Agreement dated as of December 16, 1996 among The Bank of New
York, the Cigar Guarantor, C&F Guarantor and the Collateral Agent, the
Amended and Restated Voting Trust Agreement dated as of December 16, 1996
among The Bank of New York, the Flavors Guarantor, C&F Guarantor and the
Collateral Agent, the Amended and Restated Voting Trust Agreement dated as
of December 16, 1996 among Trans Network Insurance Services Inc., FG
Guarantor, The Bank of New York and the Collateral Agent, the Second
Amended and Restated Voting Trust Agreement dated as of December 16, 1996
among FG Guarantor, First Gibraltar, The Bank of New York and the
Collateral Agent and the voting trust agreements referred to in Section
3.01(k)(xii)(A), result in or require the creation or imposition of any
Lien upon or with respect to any of the properties of any Loan Party or any
of its Subsidiaries (other than any Subsidiaries of the Borrower). The
Borrower is not in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach of
any such contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument, the violation or breach of which would be
reasonably likely to have a Material Adverse Effect (with respect to clause
(a) of the definition thereof, the term "Person" shall refer to the
Borrower).
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for (i) the due execution, delivery and performance by the Borrower of this
Agreement or the Notes or any other Loan Document or any Related Document
to which it is or is to be a party or for the consummation of the
transactions contemplated hereby, (ii) the grant by the Borrower of the
Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created by the Collateral Documents
(including the first priority nature thereof) or (iv) the exercise by the
Administrative Agent or any Lender of its rights under the Loan Documents
or the remedies in respect of the Collateral pursuant to the Collateral
Documents, except for the filing of financing statements in accordance with
Sections 3.01 and 3.02 of the Original Credit Agreement, Section
3.01(f)(vii) and (viii) of the Second Credit Agreement, Section
3.01(f)(vii) of the Third Credit Agreement, Section 3.01(f)(ix) of the
Fourth Credit Agreement, the filing of financing statements and amendments
to financing statements in accordance with Section 3.01(h)(viii) and (x) of
the Existing Credit Agreement and the filing of financing statements and
amendments to financing statements in accordance with Section 3.01 of this
Agreement and except as may be required in
67
connection with the disposition of any portion of the Collateral by laws
affecting the offering and sale of securities generally; provided, however,
that no representation or warranty is made as to any consent of,
authorization, approval or other action by, or notice to or filing with,
any banking agency or regulatory body applicable to the Administrative
Agent, the Collateral Agent, the Syndication Agent or the Documentation
Agent.
(e) This Agreement has been, and each of the Notes, each other Loan
Document to which the Borrower is a party when delivered hereunder will
have been, duly executed and delivered by the Borrower. This Agreement is,
and each of the Notes and each other Loan Document to which the Borrower is
a party when delivered hereunder will be, the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability of
creditor's rights generally.
(f) The Consolidated and consolidating balance sheets of Marvel III
and its Subsidiaries as at December 31, 1995, and the related Consolidated
and consolidating statements of income and cash flows of Marvel III and its
Subsidiaries for the fiscal year then ended, accompanied, in the case of
the aforementioned Consolidated balance sheets and related Consolidated
statements of income and cash flows, by an opinion of Ernst & Young,
independent public accountants, and the Consolidated and consolidating
balance sheets of Marvel III and its Subsidiaries as at September 30, 1996,
and the related Consolidated and consolidating statements of income and
cash flows of Marvel III and its Subsidiaries for the nine months then
ended, duly certified by the chief financial officer of Marvel III, copies
of which have been furnished to each Lender, fairly present, subject, in
the case of said balance sheets as at September 30, 1996, and said
statements of income and cash flows for the nine months then ended, to
year-end audit adjustments, the Consolidated and consolidating financial
condition of Marvel III and its Subsidiaries as at such dates and the
Consolidated and consolidating results of the operations of Marvel III and
its Subsidiaries for the periods ended on such dates, all in accordance
with generally accepted accounting principles applied on a consistent
basis.
(g) There is no pending or threatened action, proceeding, governmental
investigation or arbitration affecting any Loan Party, the Bank or any of
their Subsidiaries (other than any Subsidiary of the Borrower ) before any
court, governmental agency or arbitrator, which is reasonably likely to
have a Material Adverse Effect (with respect to clause (a) of the
definition thereof, the term "Person" shall refer to such Loan Party or the
Bank, as the case may be) or that purports to affect the legality, validity
or enforceability of this Agreement, any Note, any other
68
Loan Document or any Related Document or the consummation of the
transactions contemplated hereby or thereby.
(h) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock and no proceeds of
any Advance will be used to purchase or carry any Margin Stock, or to
extend credit to others for the purpose of purchasing or carrying any
Margin Stock.
(i) No proceeds of any Advance will be used to acquire any equity
security of a class that is registered pursuant to Section 12 of the
Exchange Act.
(j) The Borrower and its ERISA Affiliates are in compliance in all
material respects with the applicable provisions of ERISA and the Code with
respect to each Plan thereof. No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan of the Borrower or any of its
ERISA Affiliates. The amount of all Unfunded Pension Liabilities under all
Plans of the Borrower and its ERISA Affiliates does not exceed $60,000,000.
None of the Borrower or any of its ERISA Affiliates has made contributions
or incurred any Withdrawal Liability to any Multiemployer Plan within the
past five years, and it is not reasonably expected that such contributions
shall be made or required or that such liability shall be incurred in any
such case in amounts or under circumstances that would be reasonably likely
to result in a material liability to the Borrower or any of its ERISA
Affiliates. Schedule B (Actuarial Information) to the 1995 annual report
(Form 5500 Series) for each Plan of the Borrower and each of its ERISA
Affiliates, copies of which have been filed with the Internal Revenue
Service and furnished or made available to the Lenders, is complete and
accurate in all material respects and fairly presents the funding status of
such Plan, and since the date of such Schedule B there has been no material
adverse change in such funding status. The obligations of the Borrower and
its Subsidiaries for post-retirement benefits to be provided under Plans
which are welfare benefit plans (as defined in Section 3(l) of ERISA) are
not reasonably likely to have a Material Adverse Effect (in the case of
clause (a) of the definition thereof, the term "Person" shall refer to the
Borrower).
(k) The operations and properties of the Borrower are in substantial
compliance with all Environmental Laws, all necessary Environmental Permits
have been obtained and are in effect for the operations and properties of
the Borrower and the Borrower is in compliance with all such Environmental
Permits, except, as to all of the above, where the failure to do so would
not be reasonably likely to have a Material Adverse Effect (in the case of
clause (a) of the definition thereof, the term "Person" shall refer to the
Borrower); and no circumstances exist that are reasonably likely to (i)
form the basis of an Environmental Action against the Borrower or any of
its
69
properties or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that would, in the case of either (i) or (ii) above, be
reasonably likely to have a Material Adverse Effect (in the case of clause
(a) of the definition thereof, the term "Person" shall refer to the
Borrower).
(l) The Borrower has filed, has caused to be filed or has been
included in all tax returns (Federal, state, local and foreign) required to
be filed and has paid all taxes shown thereon to be due, together with
applicable interest and penalties.
(m) The Borrower is not an "investment company," or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended. Neither the making of any Advances, nor the application of the
proceeds or repayment thereof by the Borrower, nor the consummation of the
other transactions contemplated hereby, will violate any provision of such
Act or any rule, regulation or order of the Securities and Exchange
Commission thereunder.
(n) The Borrower is Solvent.
(o) Set forth on Schedule III hereto is a complete and accurate list
of all Debt (other than intercompany Debt, Debt under the Loan Documents
and Debt under the Revolving Credit Agreement and the "Loan Documents"
referred to therein) of the Borrower as of the date hereof, showing as of
the date hereof the principal amount outstanding thereunder; and there is
no other agreement, contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting the Borrower that
imposes any material Obligation or material restriction on the Borrower.
(p) Set forth on Schedule IV hereto is a complete and accurate list of
all Investments held by the Borrower as of the date hereof, showing as of
the date hereof the amount, obligor or issuer and maturity, if any,
thereof.
SECTION 4.02. Representations and Warranties Applicable to Marvel. On
and after the Marvel Inclusion Date, the representations and warranties
contained in Section 4.01(g), (k), (l) and (m) and in the last sentence of
Section 4.01(c) shall be deemed to also cover Marvel and its Subsidiaries as if
such Persons were explicitly referred to in such Sections.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and, on and after the Marvel
Inclusion Date, cause Marvel and each of its Subsidiaries to comply, in all
material respects with all applicable laws, rules, regulations and orders
(such compliance to include, without limitation, paying before the same
become delinquent all taxes, assessments and governmental charges imposed
upon it or upon its property except to the extent contested in good faith),
the failure to comply with which would, individually or in the aggregate,
be reasonably likely to have a Material Adverse Effect (with respect to
clause (a) of the definition thereof, the term "Person" shall refer to the
Borrower).
(b) Compliance with Environmental Laws. Comply and, on and after the
Marvel Inclusion Date, cause Marvel and each of its Subsidiaries and all
lessees and all other Persons occupying its properties to comply, in all
material respects, with all Environmental Laws and Environmental Permits
applicable to its operations and properties; obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause, on and after the Marvel Inclusion Date, Marvel and each
of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
provided, however, that the Borrower and, on and after the Marvel Inclusion
Date, Marvel and its Subsidiaries shall not be required to undertake any
such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to
such circumstances.
(c) Maintenance of Insurance. Maintain, and, on and after the Marvel
Inclusion Date, cause Marvel and each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning similar properties in
the same general areas in which the Borrower, Marvel or such Subsidiary
operates.
71
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and, on and after the Marvel Inclusion Date, cause Marvel to preserve and
maintain, its corporate existence, rights (charter and statutory) and
franchises; provided, however, that neither the Borrower nor Marvel shall
be required to preserve any of its rights or franchises if the Board of
Directors of the Borrower (or, in the case of Marvel, the executive
committee of the Board of Directors of Marvel) shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Borrower or Marvel, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to the Borrower, Marvel or the
Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
upon reasonable prior notice, permit the Administrative Agent or any of the
Lenders or any agents or representatives thereof, to the extent reasonably
requested to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, the Borrower and, on and
after the Marvel Inclusion Date, Marvel and its Subsidiaries, and to
discuss the affairs, finances and accounts of the Borrower and, on and
after the Marvel Inclusion Date, Marvel and its Subsidiaries with any of
their officers or directors and with their independent certified public
accountants.
(f) Keeping of Books. Keep, and cause, on and after the Marvel
Inclusion Date, Marvel and each of its Subsidiaries to keep, proper books
of record and account, in which full and correct entries shall be made of
all financial transactions and the assets and business of the Borrower,
Marvel and each such Subsidiary to the extent necessary to permit the
preparation of the financial statements required to be delivered hereunder.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause,
on and after the Marvel Inclusion Date, Marvel and each of its Subsidiaries
to maintain and preserve, all of its properties that are used or useful in
the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
(h) Termination of Financing Statements. Upon the request of the
Administrative Agent, and at the expense of the Borrower, within 10 days
after such request, furnish to the Administrative Agent proper termination
statements on Form UCC-3 covering such financing statements as the
Administrative Agent may reasonably request that were listed in the
completed requests for information referred to in Section 3.01(k)(ix)(2).
(i) Collateral Account. Maintain the Borrower Collateral Account and
the L/C Cash Collateral Account with Citibank pursuant to the terms of the
Borrower Security Agreement.
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(j) Reporting Requirements. Furnish to the Lenders through the
Administrative Agent:
(i) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of earnings, cash flows and stockholders' equity of the Borrower and
its Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified
(subject to normal year-end audit adjustment and the absence of
footnotes) on behalf of the Borrower by the chief financial officer of
the Borrower;
(ii) as soon as available and in any event within 105 days after
the end of each fiscal year of the Borrower, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
containing financial statements for such year certified in a manner
reasonably acceptable to the Mafco Finance Required Lenders by Ernst &
Young or other independent public accountants reasonably acceptable to
the Mafco Finance Required Lenders;
(iii) together with each delivery of financial statements
pursuant to clauses (i) and (ii) above, a certificate executed on
behalf of the Borrower by a senior officer of the Borrower stating
that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take with
respect thereto;
(iv) as soon as possible and in any event within five days after
knowledge of the occurrence of each Default continuing on the date of
such statement, a statement executed on behalf of the Borrower by the
chief financial officer of the Borrower setting forth details of such
Default and the action which the Borrower has taken and proposes to
take with respect thereto;
(v) as soon as available and in any event no later than February
1 of each fiscal year of the Bank, forecasts prepared by management of
the Bank, in form satisfactory to the Administrative Agent, of balance
sheets and income statements on a quarterly basis for the term of the
Term Facility;
73
(vi) promptly after the sending or filing thereof, copies of any
filings and statements that the Borrower or any Subsidiary of the
Borrower files with the Securities and Exchange Commission or any
national securities exchange;
(vii) promptly and in any event within (A) thirty days after the
Borrower knows or has reason to know that any ERISA Event with respect
to the Borrower or any of its ERISA Affiliates has occurred, a
statement describing such ERISA Event and the action, if any, that the
Borrower or such ERISA Affiliate proposes to take with respect
thereto, (B) thirty days either after receipt thereof by the Borrower
or after the Borrower knows or has reason to know of the receipt
thereof by any of its ERISA Affiliates from the sponsor of a
Multiemployer Plan of the Borrower or any of its ERISA Affiliates, a
copy of each notice received by any such Person concerning the
imposition of Withdrawal Liability upon such Person, the
reorganization or termination of such Multiemployer Plan, or the
amount of the liability incurred, or that may be incurred, by the
Borrower or any of its ERISA Affiliates in connection with any such
event and (C) ten Business Days either after receipt thereof by the
Borrower or after the Borrower knows or has reason to know of the
receipt thereof by any of its ERISA Affiliates, copies of each notice
from the PBGC stating its intention to terminate any Plan of the
Borrower or any of its ERISA Affiliates or to have a trustee appointed
to administer any such Plan, provided that in the case of any event
described in clauses (A), (B) or (C) hereof, such event shall have a
Material Adverse Effect (with respect to clause (a) of the definition
thereof, the term "Person" shall refer to the Borrower);
(viii) in the event of any change in GAAP from the date of the
annual financial statements referred to in Section 4.01(f) and upon
delivery of any financial statement required to be furnished under
clause (i) or (ii) of this Section 5.01(j), a statement of
reconciliation conforming any information contained in such financial
statement with GAAP as in effect on the date of the annual financial
statements referred to in Section 4.01(f);
(ix) promptly upon any officer of the Borrower obtaining
knowledge thereof, written notice of (A) the institution or
non-frivolous threat of any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower or any
of its Subsidiaries or any property of the Borrower or any of its
Subsidiaries (any such action, suit, proceeding, investigation or
arbitration being a "Proceeding") or (B) any material development in
any Proceeding that is already pending, where such Proceeding or
development has not previously been disclosed by the Borrower
hereunder and would be reasonably likely to have a Material Adverse
Effect (in the case of
74
clause (a) of the definition of Material Adverse Effect, the term
"Person" shall refer to the Borrower); together in each case with such
other information as any Lender through the Administrative Agent may
reasonably request to enable the Lenders and their counsel to evaluate
such matters;
(x) promptly after the furnishing thereof, copies of any material
statement or material report furnished to any other holder of the
securities of the Borrower or, on and after the Marvel Inclusion Date,
of Marvel or of any Subsidiary of Marvel pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise
required to be furnished to the Lenders pursuant to any other clause
of this Section 5.01(j);
(xi) promptly upon receipt thereof, copies of all notices,
requests and other documents received by any Loan Party or any
Subsidiary of any Loan Party under or pursuant to any Related Document
and, from time to time upon request by the Administrative Agent, such
information and reports regarding the Related Documents as the
Administrative Agent may reasonably request;
(xii) within 10 days after receipt, copies of all Revenue Agent
Reports (Internal Revenue Service Form 886), or other written
proposals of the Internal Revenue Service, that propose, determine or
otherwise set forth positive adjustments to the Federal income tax
liability of the affiliated group (within the meaning of Section
1504(a)(1) of the Internal Revenue Code) of which the Borrower is a
member aggregating $5,000,000 or more;
(xiii) promptly, and in any event within five Business Days after
the due date (with extensions) for filing the final Federal income tax
return in respect of each taxable year, a certificate of the Borrower
(a "Tax Certificate"), signed on behalf of the Borrower by the
President or the chief financial officer of the Borrower, stating that
the common parent of the affiliated group (within the meaning of
Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower
is a member has paid to the Internal Revenue Service or other taxing
authority the full amount that such affiliated group is required to
pay in respect of Federal income tax for such year;
(xiv) promptly after the occurrence thereof, notice of any
condition or occurrence on any property of the Borrower or, on and
after the Marvel Inclusion Date, Marvel or any Subsidiary of Marvel
that results in a material noncompliance by the Borrower, Marvel or
any of Marvel's Subsidiaries with any Environmental Law or
Environmental Permit or would be reasonably likely to (i) form the
basis of an Environmental Action against the Borrower, Marvel
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or any of Marvel's Subsidiaries or any such property that would be
reasonably likely to have a Material Adverse Effect (in the case of
clause (a) of the definition of Material Adverse Effect, the term
"Person" shall refer to the Borrower) or (ii) cause any such property
to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law or Environmental Permit or
would be reasonably likely to (i) form the basis of an Environmental
Action against the Borrower, Marvel or any of Marvel's Subsidiaries or
such property that could have a Material Adverse Effect (in the case
of clause (a) of the definition of Material Adverse Effect, the term
"Person" shall refer to the Borrower);
(xv) promptly after any deposit in the Borrower Collateral
Account, a certificate signed on behalf of the Borrower by the
president or chief financial officer of the Borrower, stating the
amount of such deposit and the source of the funds of such deposit,
together with a schedule in form and substance reasonably satisfactory
to the Administrative Agent setting forth in reasonable detail the
computations and other information on which the amount and source of
such deposit were determined; and
(xvi) such other information respecting the condition (financial
or otherwise), operations, assets or business of the Borrower or any
of its Subsidiaries as any Lender through the Administrative Agent may
from time to time reasonably request.
(k) Look-Forward Certificate. With respect to each deposit (other than
of income or proceeds of Collateral Investments) to the Collateral Accounts
(other than the Second Mafco Collateral Account and the L/C Cash Collateral
Account), the Borrower shall, within 15 Business Days prior to the date of
such deposit or within five Business Days after the date of such deposit,
deliver a certificate (the "Look-Forward Certificate") to the
Administrative Agent stating that the pro forma amounts available to be
loaned by First Gibraltar to Borrower Parent, together with amounts
received by Mafco pursuant to or in connection with any Related Document,
will not be less than $15 million in any calendar quarter (of which at
least $10 million shall be from amounts available to be loaned by First
Gibraltar to Borrower Parent) and will not be insufficient to pay interest
on the Advances then outstanding and interest on the Debt then outstanding
under the Revolving Credit Agreement, together with a schedule in form
reasonably satisfactory to the Administrative Agent setting forth in
reasonable detail the computations, assumptions and other information on
which such certification is based) (taking into account, among other
things, the Bank's performance to date, the quality of the Bank's assets
and the presence of any agreement with the Bank's regulators including, but
not limited to, an agreement relating to capital, asset quality,
76
dividends or management); provided, however, that, notwithstanding the
foregoing, if a Look-Forward Certificate has been delivered to the
Administrative Agent within 90 days prior to a deposit in the Mafco
Collateral Account of amounts paid under or in connection with any Related
Document or Asset Sale, the Borrower may, instead of delivering a
Look-Forward Certificate to the Administrative Agent, deliver a certificate
(a "Deposit Certificate") to the Administrative Agent, within 15 Business
Days prior to the date of such deposit or within five Business Days after
the date of such deposit, stating that (x) there has been no adverse change
in (1) the financial condition of each of the Bank and Mafco and its
Subsidiaries, taken as a whole, since the date of the last Look-Forward
Certificate that was delivered to the Administrative Agent or (2) the
projections contained in such Look-Forward Certificate and (y) no event has
occurred and is continuing which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
(l) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates (other than the Borrower or any
of its Subsidiaries) on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person that is not an Affiliate;
provided, however, that for purposes of this Section 5.01(l), the term
"Affiliate" shall not include any officer or director of the Borrower or
such Subsidiary, as the case may be, who does not possess directly or
indirectly the power to vote 5% or more of the Voting Stock of the Borrower
or its Subsidiaries; provided further that nothing in this Section 5.01(l)
shall restrict the performance by the parties to Marvel Tax Sharing
Agreements of their respective obligations thereunder.
(m) Mafco Tax Group. Maintain its status as a member of the affiliated
group (within the meaning of Section 1504(a)(1) of the Code) of which Mafco
is the common parent.
(n) Net Cash Proceeds. Deposit all of the Net Cash Proceeds received
by the Borrower from and after the Effective Date from Asset Sales (other
than Net Cash Proceeds required to be applied to prepay or repay the Term
Facilities or the Debt outstanding under the Revolving Credit Agreement) in
the Mafco Collateral Account.
(o) Use of Proceeds. Use the proceeds of the Advances to purchase or
defease all or a portion of the Revlon Worldwide Bonds.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
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(a) Liens, Etc. Create or suffer to exist any Lien, upon or with
respect to any of its properties, whether now owned or hereafter acquired,
or sign or file under the Uniform Commercial Code of any jurisdiction, a
financing statement that names the Borrower as debtor or sign any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign any right to receive income, other than the following
Liens: (i) Liens created by the Loan Documents or the "Loan Documents"
referred to in the Revolving Credit Agreement; (ii) the Liens described on
Schedule V provided that in the event any property subject to any such Lien
is released from such Lien, such released property may not thereafter be
subjected to any Lien other than Liens created by the Loan Documents or the
"Loan Documents" referred to in the Revolving Credit Agreement; (iii)
mechanics', materialmen's, carriers' and similar Liens arising in the
ordinary course of business securing obligations that are not overdue for a
period of more than 30 days or which are being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained; (iv) Liens for taxes, assessments and governmental charges or
levies not yet due and payable or which are being contested in good faith
and by proper proceedings and as to which appropriate reserves are being
maintained; and (v) judgment or other similar Liens, provided that there
shall be no period of more than 10 consecutive days during which a stay of
enforcement of the related judgment shall not be in effect.
(b) Lease Obligations. Create, incur, assume or suffer to exist any
obligations as lessee (i) for the rental or hire of real or personal
property in connection with any sale and leaseback transaction, or (ii) for
the rental or hire of other real or personal property of any kind under
leases or agreements to lease having an original term of one year or more.
(c) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it.
(d) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of any assets or grant any option or other right to purchase, lease or
otherwise acquire any assets except (i) dispositions of obsolete, worn out
or surplus property disposed of in the ordinary course of business, (ii) a
transfer of any Xxxxxxx Worldwide XXXXX held by the Borrower to Xxxxxxx
Worldwide and (iii) sales, leases, transfers or other dispositions of
assets for cash and for no less than fair market value, provided that, in
the case of an Asset Sale, the Borrower complies with the provisions of
Section 5.01(o) in respect of the Net Cash Proceeds of such Asset Sale.
(e) Dividends, Repurchases, Etc. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of its
capital stock or any warrants, rights or options to acquire such capital
stock, now or hereafter outstanding,
78
return any capital to its stockholders as such, make any distribution of
assets, capital stock, warrants, rights, options, obligations or securities
to its stockholders as such, except that the Borrower may (i) declare and
deliver dividends and distributions payable only in common stock or
warrants, rights or options to acquire common stock, (ii) declare and pay
cash dividends to its stockholders in an amount not to exceed the amount
released by the Collateral Agent from the Borrower Collateral Account
pursuant to the provisions of Section 7 of the Borrower Security Agreement
or the proceeds of the Advances and the proceeds of borrowings under the
Revolving Credit Agreement and (iii) declare and pay cash dividends to its
stockholders in an amount not to exceed the Net Cash Proceeds received by
Mafco and its Subsidiaries from Asset Sales on and after the Effective Date
solely to permit the compliance by Mafco and its Subsidiaries with the
requirements of Section 5.01(n) and Section 7(q) of the Mafco Guaranty.
(f) Investments. Make or hold any Investment in any Person, other than
(i) Investments by the Borrower and its Subsidiaries in Cash Equivalents,
(ii) a loan by the Borrower to Mafco of up to $650,000,000 out of the
proceeds of the Advances and the proceeds of borrowings under the Revolving
Credit Agreement, (iii) Investments by the Borrower in Mafco or any of its
Subsidiaries in an amount not to exceed the sum of the amount released by
the Collateral Agent from the Borrower Collateral Account pursuant to the
provisions of Section 7 of the Borrower Security Agreement plus the
aggregate amount of any Investments in the Borrower made by Mafco or any of
its Subsidiaries out of the proceeds from the amount released by the
Collateral Agent from the Mafco Collateral Accounts pursuant to Section 7
of the Mafco Security Agreement, (iv) Investments existing on the date
hereof, (v) contributions by the Borrower of common stock of Marvel to
Marvel III Holdings Inc., Marvel Holdings Inc. or Marvel (Parent) Holdings
Inc., (vi) Investments by the Borrower in the Xxxxxxx Worldwide XXXXX,
(vii) Investments by the Borrower in the New Marvel Shares and (viii)
Investments in Mafco in an amount not to exceed the Net Cash Proceeds
received by Mafco and its Subsidiaries from Asset Sales on and after the
Effective Date solely to permit the compliance by Mafco and its
Subsidiaries with the requirements of Section 5.01(n) and Section 7(q) of
the Mafco Guaranty.
(g) Change in Nature of Business. Engage in any business other than
the ownership of the capital stock of Marvel III Holdings Inc.
(h) Accounting Changes. Make or permit any change in accounting
policies affecting (i) the presentation of financial statements or (ii)
reporting practices, except in either case as required or permitted by
GAAP.
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(i) Debt. Create, incur, assume or suffer to exist any Debt other
than: (i) Debt under the Loan Documents and under the Revolving Credit
Agreement and the "Loan Documents" referred to therein, (ii) endorsement of
negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business and (iii) Debt evidenced by the promissory
note dated March __, 1997 made by the Borrower in favor of C&F Guarantor in
an aggregate principal amount up to $200,000,000.
(j) Charter Amendments. Amend its certificate of incorporation or
bylaws.
(k) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any Debt,
other than the prepayment of the Advances in accordance with the terms of
this Agreement, or amend, modify or change in any manner any term or
condition of any Debt or any agreement relating to such Debt other than (i)
mandatory and optional prepayments of the Debt under the Revolving Credit
Agreement pursuant to the terms thereof or any other Debt permitted
pursuant to the terms of Section 5.02(i), (ii) prepayments of Debt required
by Section 7(q) of the Mafco Guaranty and (iii) amendments, modifications
and changes to the terms and conditions of the Revolving Credit Agreement
pursuant to its terms.
(l) Negative Pledge. Enter into or suffer to exist any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any
of its property or assets other than (i) in favor of the Administrative
Agent and the Lenders, (ii) any prohibition or condition existing on the
date hereof or (iii) any prohibition or condition contained in the
Revolving Credit Agreement or the "Loan Documents" referred to therein.
(m) Partnerships. Become a general partner in any general or limited
partnership.
(n) Capital Expenditures. Make any Capital Expenditures.
(o) Issuance of Capital Stock. Issue any capital stock or warrants,
rights or options to acquire such capital stock.
(p) Payment Restrictions. Create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind
on the ability of the Borrower to (i) pay dividends or make any other
distributions on any of the Borrower's capital stock, (ii) make loans or
advances to Mafco or any subsidiary of Mafco or (iii) repay or prepay any
Debt owed by the Borrower other than any
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(x) consensual encumbrances or restrictions existing on the date hereof and
(y) other consensual encumbrances or restrictions that are no more onerous
than those encumbrances and restrictions in existence on the date hereof
with respect to the Borrower.
(q) Amendment, Etc., of Related Documents. During such time as Marvel
is a member of the affiliated group (within the meaning of Section
1504(a)(1) of the Code) of which Mafco is the common parent, cancel or
terminate any Related Document to which it is a party or consent to or
accept any cancellation or termination thereof, amend, modify or change in
any manner any term or condition or give any consent, waiver or approval
thereunder, waive any default under or any breach of any term or condition
in such Related Document, agree in any manner to any other amendment,
modification or change of any term or condition of any Related Document, or
take any other action in connection with any such Related Document that
would impair the value of the interest or rights of Mafco thereunder or
that would impair the interest or rights of any Agent, the Collateral Agent
or any Lender Party thereunder or permit any of its Subsidiaries to do any
of the foregoing; provided, however, that anything to the contrary in this
sentence notwithstanding, any provision of any Marvel Tax Agreement may be
cancelled, terminated, amended, modified or changed in any manner, or any
consent, waiver or approval thereunder may be given, or any default or
breach thereunder may be waived, in each case, to the extent required by or
otherwise agreed to with, any governmental agency having regulatory
authority or supervision over any Subsidiary of the Borrower.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of, or interest on,
any Advance or any fees payable to the Administrative Agent or any Lender
hereunder, in each case when the same becomes due and payable, or any Loan
Party shall fail to make any other payment hereunder within five Business
Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party or any FN
Party or under or in connection with any Loan Document or FN Document shall
prove to have been incorrect in any material respect when made or
confirmed; or
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(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(h), 5.01(i), 5.01(j),
5.01(k), 5.01(m), 5.01(n) or 5.02, (ii) Mafco shall fail to perform or
observe any term, covenant or agreement contained in Section 7(i), 7(j),
7(l), 7(o), 7(p), 7(q) or 8 of the Mafco Guaranty, (iii) Xxxxxxx Guarantor
shall fail to perform or observe any term, covenant or agreement contained
in Section 7(i), 7(k), 7(m) or 8 of the Xxxxxxx Guaranty, (iv) Borrower
Parent shall fail to perform or observe any term, covenant or agreement
contained in Section 7(j) or 8 of the Borrower Parent Guaranty, (v) New
World Guarantor shall fail to perform or observe any term, covenant or
agreement contained in Section 7(h), 7(j), 7(k) or 8 of the New World
Guaranty, (vii) C&F Guarantor shall fail to perform or observe any term,
covenant or agreement contained in Section 7(h), 7(j), 7(k) or 8 of the C&F
Guaranty, (vii) Cigar Guarantor shall fail to perform or observe any term,
covenant or agreement contained in Section 7(h), 7(j), 7(k) or 8 of the
Cigar Guaranty, (viii) Flavors Guaranty shall fail to perform or observe
any term, covenant or agreement contained in Section 7(h), 7(j), 7(k) or 8
of the Flavors Guaranty, (ix) on and after the Revlon Inclusion Date,
Revlon Guarantor shall fail to perform or observe any term, covenant or
agreement contained in Section 7(h), 7(j) or 8 of the Revlon Guaranty, (x)
Revlon Worldwide Holdings shall fail to perform or observe any term,
covenant or agreement contained in Section , or of the Revlon Worldwide
Holdings Guaranty, (xi) on and after the MCG Inclusion Date, MCG shall fail
to perform or observe any term, covenant or agreement contained in certain
Sections of the MCG Guaranty substantially identical to the Sections of the
Revlon Worldwide Holdings Guaranty set forth in clause (x) above or (xii)
any Loan Party shall fail to perform or observe any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by the Administrative
Agent or any Lender; or
(d) (i) Any A Company, any Designated Operating Company or the Bank
shall fail to pay any principal of or premium or interest on any Debt which
is outstanding in a principal amount of at least $10,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of such A Company,
such Designated Operating Company or the Bank (as the case may be), when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or (ii) any other event
shall occur or condition shall exist (other than (x) during the period from
the date hereof through June 30, 1997, the breach by Marvel of certain
financial covenants for the fiscal quarter ended September 30, 1996, for
the fiscal quarter ending December 31, 1996, for the fiscal quarter ending
March 31, 1997 and for the fiscal quarter ending
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June 30, 1997 under its senior bank credit agreements and (y) in the case
of the Specified Holding Company Debt, any event or condition relating to
Marvel, Marvel III Holdings Inc., Marvel (Parent) Holdings Inc. or Marvel
Holdings Inc.) under any agreement or instrument relating to any such Debt
and shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the maturity of such Debt;
or (iii) any such Debt shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment),
redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or (iv) in the case of any Specified Holding
Company Debt, any event or condition relating to Marvel, Marvel III
Holdings Inc., Marvel (Parent) Holdings Inc. or Marvel Holdings Inc. shall
occur and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate the maturity of such Debt; or
(e) Any A Company, any Designated Operating Company (other than
Marvel) or the Bank shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any A Company, any Designated
Operating Company (other than Marvel) or any FN Party seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of 45 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or any A Company, any Designated Operating Company (other than Marvel) or
the Bank shall take any corporate action to authorize any of the actions
set forth above in this Section 6.01(e); or
(f) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any A Company, any Designated
Operating Company or the Bank and 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 or
dismissed or bonded pending appeal; provided, however, that any
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such judgment or order shall not be an Event of Default under this Section
6.01(f) if and for so long as (i) the entire amount of such judgment or
order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer,
which shall be rated at least "A" by A.M. Best Company, has been notified
of, and has not disputed the claim made for payment of the amount of such
judgment or order; or
(g) Any non-monetary judgment or order shall be rendered against any A
Company, any Designated Operating Company or the Bank that is reasonably
likely to have a Material Adverse Effect (in the case of clause (a) of the
definition thereof, the term "Person" shall refer to the Borrower) and
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 pending appeal; or
(h) Xxxxxx X. Xxxxxxxx (or in the event of his incompetence or death,
his estate, heirs, executor, administrator, committee or other personal
representative) shall cease to beneficially own (i) at least 80% of the
Voting Stock of any A Company, any Designated Operating Company (other than
Marvel, Consolidated Cigar Holdings, PCT and Revlon) or the Bank, (ii) on
and after the Marvel Inclusion Date, at least a majority of the voting
power of the Voting Stock of Marvel, (iii) at least a majority of the
voting power of the Voting Stock of Revlon, and (iv) on and after the MCG
Inclusion Date, at least a majority of the voting power of the Voting Stock
of Consolidated Cigar Holdings, in each case other than as a result of an
Asset Sale pursuant to which all of the common stock held by Mafco and its
Subsidiaries in any A Company, any Designated Operating Company or the Bank
(or, in any such case, in such Person's direct or indirect parent) is sold
and the Net Cash Proceeds of such Asset Sale is applied in accordance with
the terms of the Loan Documents and the "Loan Documents" referred to in the
Revolving Credit Agreement; or
(i) Any ERISA Event shall have occurred with respect to Mafco or any
of its ERISA Affiliates and such ERISA Event, together with any and all
other ERISA Events that shall have occurred with respect to Mafco or any of
its ERISA Affiliates, is reasonably likely to have a Material Adverse
Effect (with respect to clause (a) of the definition thereof, the term
"Person" shall refer to Mafco); or
(j) Mafco or any of its ERISA Affiliates shall have been notified by
the sponsor of a Multiemployer Plan of the Borrower or any of its ERISA
Affiliates that it has incurred Withdrawal Liability to such Multiemployer
Plan in an amount that, when aggregated with all other amounts required to
be paid to Multiemployer Plans by Mafco and its ERISA Affiliates as
Withdrawal Liability (determined as of the date of such
84
notification), exceeds $10,000,000 or requires payments exceeding
$10,000,000 per annum; or
(k) Mafco or any of its ERISA Affiliates shall have been notified by
the sponsor of a Multiemployer Plan of the Borrower or any of its ERISA
Affiliates that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and as a result of
such reorganization or termination the aggregate annual contributions of
Mafco and its ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding $10,000,000; or
(l) Any provision of any Loan Document, Related Document or FN
Document after delivery thereof pursuant to the Original Credit Agreement,
the Second Credit Agreement, the Third Credit Agreement, the Fourth Credit
Agreement, the Existing Credit Agreement, Section 3.01 hereof or pursuant
to the definition of "MCG Inclusion Date" shall for any reason cease (other
than pursuant to the terms thereof or, in the case of the Marvel Tax
Agreements, in accordance with the terms of this Agreement and the
Revolving Credit Agreement) to be valid and binding on or enforceable
against any party to it, or any party to any such document shall so state
in writing; or
(m) Any Collateral Document after delivery thereof pursuant to the
Original Credit Agreement, the Second Credit Agreement, the Third Credit
Agreement, the Fourth Credit Agreement, the Existing Credit Agreement,
Section 3.01 hereof or the definition of "MCG Inclusion Date" shall for any
reason (other than pursuant to the terms thereof) cease to create a valid
and perfected first priority Lien on the Collateral purported to be covered
thereby; or
(n) Any provision of the FN Holdings Debt Document, the FN Holdings
New Debt Document, the Second New FN Holdings Debt Document, the FN
Holdings Preferred Stock or the FN Parent Debt Document shall be
terminated, amended, waived or otherwise modified without the consent of
the Mafco Finance Required Lenders or any provision of the First Gibraltar
Charter Document shall be amended or modified without the consent of the
Mafco Finance Required Lenders (other than as permitted by the terms of the
Mafco Guaranty); or
(o) The Bank fails to maintain the minimum capital and leverage ratios
required as of the Effective Date for the Bank to be considered as a "well
capitalized"
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"savings association" pursuant to 12 U.S.C. Section 1831o and 12 C.F.R.
Section 565, as such Sections may be amended, reenacted or redesignated
from time to time; or
(p) (i) The common stock of any Designated Operating Company (other
than Marvel, Consolidated Cigar Holdings and PCT) trading on the date
hereof shall cease to be publicly traded on the New York Stock Exchange;
(ii) at any time prior to the receipt by Mafco and its Subsidiaries after
the Effective Date of Net Cash Proceeds in an amount at least equal to $365
million from the sale, monetization or other disposal of News Corp.
Preferred ADRs, News Corp. Preferred ADRs shall cease to be publicly
traded; (iii) on or after the Marvel Inclusion Date, the common stock of
Marvel shall cease to be publicly traded on the New York Stock Exchange or
the Nasdaq National Market System; or (iv) on and after the MCG Inclusion
Date, the common stock of Consolidated Cigar Holdings shall cease to be
publicly traded on the New York Stock Exchange; or
(q) Xxxxxx X. Xxxx shall beneficially or legally own shares of the
common stock of FN Holdings other than shares of the Class B Common Stock;
or
(r) Any Person party to the Related Documents shall fail to directly
deposit in the Mafco Collateral Account (i) a payment to Mafco under any
Related Document (which payment is required to be made and is permitted
under each indenture and credit agreement to which such Person is a party)
or (ii) a loan to Mafco of the proceeds of any payment received by such
Person under any Related Document (which loan is required to be made and is
permitted under each indenture and credit agreement to which such Person is
a party) and such failure shall remain unremedied for three Business Days
other than any such failure which results from a termination or amendment
of any Related Document in accordance with the terms of this Agreement and
the Revolving Credit Agreement; or
(s) (i) Mafco shall fail to furnish to the Administrative Agent and
the Lenders on or prior to December 1, 1997, a business plan setting forth,
in respect of all of the Debt of Mafco and its Subsidiaries (other than
Debt of the Designated Operating Companies, the Bank, Marvel, Marvel III
Holdings Inc., Marvel (Parent) Holdings Inc., Marvel Holdings Inc.,
Meridian Sports Incorporated and their respective Subsidiaries) that is
scheduled to come due during calendar year 1998 and 1999, the method by
which all such Debt shall be repaid, prepaid, redeemed or refinanced on a
timely basis, including without limitation, through Asset Sales, issuances
of Debt, issuances of equity or contributions to capital, in each case in
reasonable detail as to the identity of the assets to be sold, the issuer
of the Debt or equity and such other details as the Mafco Finance
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Required Lenders shall request or (ii) the Mafco Finance Required Lenders
shall not have approved the form and substance of such business plan on or
prior to December 31, 1997; or
(t) the MCG Inclusion Date shall fail to occur within six months
following the Effective Date;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitment of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided, however, that, in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances shall automatically be terminated and (B) the Notes,
all such interest and all such amounts shall automatically become and be due
and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
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ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes each of the Administrative Agent and the Collateral 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 and the Collateral Agent, as the case may be, by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), each of the
Administrative Agent and the Collateral Agent 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 the Required Lenders, and such instructions
shall be binding upon all Lenders and all holders of Notes; provided, however,
that neither the Administrative Agent nor the Collateral Agent shall be
required to take any action which exposes the Administrative Agent or the
Collateral Agent, as the case may be, to personal liability or which is
contrary to this Agreement or applicable law. Each of the Administrative Agent
and the Collateral Agent agrees to give to each Lender prompt notice of each
notice and other report given to it by the Borrower pursuant to the terms of
this Agreement.
SECTION 7.02. Administrative Agent's and Collateral Agent's Reliance,
Etc. Neither the Administrative Agent nor the Collateral Agent nor any of their
respective directors, officers, agents or employees, shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each of the
Administrative Agent and the Collateral Agent: (i) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), 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;
(iii) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with the Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of the Loan
Documents on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or
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priority of any lien or security interest created or purported to be created
under or in connection with the Loan Documents or any other instrument or
document furnished pursuant hereto; and (vi) shall incur no liability under or
in respect of the Loan Documents by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under the Loan Documents as any other Lender
and may exercise the same as though it were not the Administrative Agent or the
Collateral Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include Citibank hereunder in its individual capacity.
Citibank and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank were not the Administrative
Agent or the Collateral Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon either the Administrative Agent or
the Collateral Agent or any other Lender and based on the financial statements
referred to in Section 4.01(f) and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent, the Collateral 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.
SECTION 7.05. Indemnification. (a) Each Lender severally agrees to
indemnify each of the Administrative Agent and the Collateral Agent (in each
case to the extent not promptly reimbursed by the Borrower) from and against
such Lender's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Administrative Agent or
the Collateral Agent, as the case may be, in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative
Agent or the Collateral Agent, as the case may be, under the 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 the Administrative
Agent's or the Collateral Agent's gross negligence or willful misconduct.
Without limitation
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of the foregoing, each Lender agrees to reimburse the Administrative Agent and
the Collateral Agent promptly upon demand for its ratable share of any costs
and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrower under Section 8.04, to the extent that the
Administrative Agent or the Collateral Agent, as the case may be, is not
promptly reimbursed for such costs and expenses by the Borrower. For purposes
of this Section 7.05(a), the Lenders' respective ratable shares of any amount
shall be determined, at any time, according to the sum of (a) the aggregate
principal amount of the Advances outstanding at such time and owing to the
respective Lenders and (b) their respective unused Term Commitments at such
time. In the event that any Defaulted Advance shall be owing by any Defaulting
Lender at any time, such Lender's Commitment with respect to the Facility under
which such Defaulted Advance was required to have been made shall be considered
to be unused for purposes of this Section 7.05(a) to the extent of the amount
of such Defaulted Advance. The failure of any Lender to reimburse the
Administrative Agent or the Collateral Agent promptly upon demand for its
ratable share of any amount required to be paid by the Lender to the
Administrative Agent or the Collateral Agent, as the case may be, as provided
herein shall not relieve any other Lender of its obligation hereunder to
reimburse the Administrative Agent or the Collateral Agent, as the case may be,
for its ratable share of such amount, but no Lender shall be responsible for
the failure of any other Lender to reimburse the Administrative Agent or the
Collateral Agent, as the case may be, for such other Lender's ratable share of
such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in
this Section 7.05(a) shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Administrative Agent and Collateral Agent.
Each of the Administrative Agent and the Collateral Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may
be removed at any time with or without cause by, in the case of the
Administrative Agent, the Required Lenders and, in the case of the Collateral
Agent, the Mafco Finance Required Lenders. Upon any such resignation or
removal, the Required Lenders or the Mafco Finance Required Lenders shall have
the right to appoint, with the consent of the Borrower, a successor
Administrative Agent or Collateral Agent, respectively, which shall be a
Lender, or if no Lender consents to act as Administrative Agent or Collateral
Agent, as the case may be, hereunder, an institution that would be permitted to
be an Eligible Assignee hereunder. If no successor Administrative Agent or
Collateral Agent, as the case may be, shall have been so appointed by the
Required Lenders or the Mafco Finance Required Lenders, as the case may be, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's or Collateral Agent's giving of notice of resignation or
the Required Lenders' or the Mafco Finance Required Lenders' removal of the
retiring Administrative Agent or Collateral Agent, then the retiring
Administrative Agent, or Collateral Agent, as the case may be, may, on behalf
of the Lenders, appoint a successor Administrative Agent or Collateral Agent,
as the case may be, which shall
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be a commercial bank that is acceptable to the Borrower (which shall not
unreasonably withhold its approval). Upon the acceptance of any appointment as
Administrative Agent or Collateral Agent, as the case may be, thereunder by a
successor Administrative Agent or Collateral Agent, as the case may be, such
successor Administrative Agent or Collateral Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent or Collateral Agent, as the case may be, and the
retiring Administrative Agent or Collateral Agent, as the case may be, shall be
discharged from its duties and obligations under the Loan Documents. After any
retiring Administrative Agent's or Collateral Agent's resignation or removal
hereunder as Administrative Agent or Collateral Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent or Collateral Agent, as the case
may be.
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ARTICLE VIII
MISCELLANEOUS
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SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Mafco Finance Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by each of the Lenders (other than
any Lender which is, at such time, a Defaulting Lender) and the Revolving
Credit Agreement Lenders (other than any Revolving Credit Agreement Lender
which is, at such time, a "Defaulting Lender" under the Revolving Credit
Agreement), do any of the following: (i) waive any of the conditions specified
in Section 3.01 or 3.02, (ii) change the definition of the term "Mafco Finance
Required Lenders", (iii) release any material portion of the Collateral or
permit the creation, incurrence, assumption or existence of any Lien on any
material portion of the Collateral other than (A) releases of any material
portion of the Collateral or the creation, incurrence, assumption or existence
of any such Lien in connection with Asset Sales (which shall include, for
purposes of this Section 8.01, sales, monetizations or other disposals of the
News Corp. Preferred ADRs) the Net Cash Proceeds of which are applied as
contemplated by the Loan Documents and the "Loan Documents" under the Revolving
Credit Agreement, (B) releases of the News Corp. Preferred ADRs pursuant to the
terms of the Loan Documents and the "Loan Documents" under the Revolving Credit
Agreement and (C) the Liens created by the Collateral Documents and the Liens
permitted by Section 5.02(a), Section 8(a) of the Borrower Parent Guaranty,
Section 8(a) of the Xxxxxxx Guaranty, Section 8(a) of the Mafco Guaranty,
Section 8(a) of the C&F Guaranty, Section 8(a) of the Cigar Guaranty, Section
8(a) of the Flavors Guaranty, Section 8(a) of the New World Guaranty, Section
8(a) of the Revlon Guaranty, Section 8(a) of the Revlon Worldwide Holdings
Guaranty and, on and after the MCG Inclusion Date, the comparable provision of
the MCG Guaranty, (iv) amend this Section 8.01, (v) increase the Commitments of
the Lenders or subject the Lenders to any additional obligations, (vi) reduce
the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder or (vii) postpone any date fixed for any mandatory reduction
in the Commitments or for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder or amend Section 2.03 or
2.05(b) (other than Section 2.05(b)(vii)); provided further that,
notwithstanding the foregoing, Section 2.05(b)(ii) may be amended by the
Supermajority Lenders and the "Supermajority Lenders" under the Revolving
Credit Agreement in connection with the issuance of preferred stock by FN
Parent and/or FN Holdings if all of the proceeds of such issuance are used to
prepay or repay in full the Debt outstanding under the First Gibraltar Credit
Agreement; provided further that no change to the definition of the term
"Required Lenders" shall be made unless in writing and signed by each of the
Lenders (other than any Lender which is, at such times a Defaulting Lender)
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders and Revolving
Credit Agreement Lenders required above to take such action, affect the rights
or duties of the Administrative Agent under this Agreement or any Note;
provided further that no amendment, waiver or consent
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shall, unless in writing and signed by the Collateral Agent in addition to the
Lenders and Revolving Credit Agreement Lenders required above to take such
action, affect the rights or duties of the Collateral Agent under this
Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at c/o MacAndrews and
Forbes Holdings Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel, if to any Financial Institution at its Domestic Lending Office
on Schedule I hereto; if to any other Lender, at the address specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Administrative Agent or the Collateral Agent, at its address at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx, or, as to the
Borrower, the Administrative Agent or the Collateral Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower, the
Administrative Agent and the Collateral Agent. All such notices and
communications shall be effective (i) when received, if mailed or delivered or
telecopied (including machine acknowledgment), or (ii) when delivered to the
telegraph company, confirmed by telex answerback or delivered to the cable
company, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II or VII shall not be effective until
received by the Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent or the Collateral Agent to exercise, and no
delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.04. Costs; Expenses. (a) The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent and the Collateral Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of the Loan Documents and
the other documents to be delivered hereunder (including, without limitation,
(A) all due diligence, transportation, computer, duplication, appraisal, audit
and insurance expenses and fees and expenses of consultants engaged with the
prior consent of the Borrower (which consent shall not be unreasonably
withheld) and (B) the reasonable fees and out-of-pocket expenses of counsel for
the Administrative Agent with respect thereto, with respect to advising the
Administrative Agent and the Collateral Agent as to their respective rights and
responsibilities, or the protection or preservation of rights or interests,
under the Loan Documents, with respect to negotiations with the Borrower or
with other creditors of the Borrower arising out of any Default or any events
or circumstances that
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may give rise to a Default and with respect to presenting claims in, monitoring
or otherwise participating in any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally and any proceeding ancillary
thereto). The Borrower further agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Administrative Agent, the Collateral
Agent and the Lenders in connection with the enforcement of the Loan Documents
and the other documents to be delivered hereunder, whether in action, suit,
litigation, any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally or otherwise (including, without limitation, the
reasonable fees (including the allocated costs of internal counsel) and
reasonable expenses of counsel for the Administrative Agent, the Collateral
Agent and each Lender with respect thereto) and expenses in connection with the
enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of any Eurodollar Rate Advance is made
by the Borrower to or for the account of a Lender other than on the last day of
the Interest Period for such Advance, as a result of a payment or Conversion
pursuant to Section 2.09(c) or 2.10, acceleration of the maturity of the Notes
pursuant to Section 6.01 or for any other reason, the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or expenses
which it may reasonably incur as a result of such payment, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(c) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent and each Lender and each of their affiliates and their
officers, directors, trustees, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (or in connection with the preparation for a defense of) any
investigation, litigation or proceeding arising out of, related to or in
connection with this Agreement and the transactions contemplated hereby,
whether or not an Indemnified Party is a party thereto, whether or not the
transactions contemplated hereby are consummated, whether or not any such
claim, investigation, litigation or proceeding is brought by the Borrower or
any other person and whether or not such Indemnified Party is a Lender at such
time) except (i) to the extent such claim, damage, loss, liability or expense
(x) is found in a final, non-appealable judgment by a court of competent
jurisdiction (a "Final Judgment") to have resulted from such Indemnified
Party's gross negligence or willful misconduct or (y) arises from any legal
proceedings commenced against any Lender by any other Lender (in its capacity
as such and not as Administrative Agent, Collateral Agent, Documentation Agent
or Syndication Agent), and (ii) in the case of any litigation brought by the
Borrower
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(A) seeking a judgment against any Indemnified Party for any wrongful
act or omission of such Indemnified Party and (B) in which a Final Judgment is
rendered in the Borrower's favor against such Indemnified Party, the provisions
of this paragraph will not be available to provide indemnification for any
damage, loss, liability or expense incurred by such Indemnified Party in
connection with such litigation described in clause (i) or in connection with
any claim for which Final Judgment is rendered in the Borrower's favor in a
litigation described in clause (ii) of this Section 8.04(c).
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set-off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any and all of the
obligations of the Borrower to such Lender now or hereafter existing under this
Agreement and the Note or Notes held by such Lender, whether or not such Lender
shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application shall be made by
such Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application; provided further that no Lender shall
exercise any such right of set-off or any other right of set-off without the
prior consent of the Administrative Agent. The rights of each Lender under this
Section 8.05 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Financial
Institution that such Financial Institution has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Administrative Agent and the Required Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Borrower pursuant to Section 2.14, will assign to one or
more banks or other entities all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a uniform, and not
a varying, percentage of all rights and obligations under and in respect of the
Term Facility;
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(ii) the amount of the Commitment of the assigning Lender 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 be less than
$10,000,000 and shall be an integral multiple of $1,000,000 in excess thereof,
or shall be an assignment to another Lender or an assignment of all of the
assigning Lender's rights and obligations hereunder and under the Notes, (iii)
each such assignment shall be to another Lender, an Affiliate of the assigning
Lender or to an Eligible Assignee, (iv) each such assignment made as a result
of a demand by the Borrower pursuant to Section 2.14 shall be arranged by the
Borrower after consultation with the Administrative Agent and shall be either
an assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to Section
2.14 unless and until such Lender shall have received one or more payments from
either the Borrower or one or more Eligible Assignees in an aggregate amount at
least equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of payment
of such principal amount and all other amounts payable to such Lender under
this Agreement, (vi) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes subject
to such assignment and a processing and recordation fee of $3,000 from the
assignee and (vii) no such assignments shall be permitted without the consent
of the Administrative Agent and the Borrower (such consent not to be
unreasonably withheld). Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility
97
with respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01(f) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Administrative
Agent, the Collateral Agent, such assigning Lender 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; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each of the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the
Administrative Agent or the Collateral Agent, as the case may be, by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
under each Facility to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent, and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes a new Note or Notes to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it under a Facility pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of the
assigning Lender in an amount equal to such Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal
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amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A.
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Borrower,
the Administrative Agent, the Collateral Agent 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 and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure
by the Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce or postpone any date fixed for payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf
of the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree pursuant to an
agreement substantially in the form of Exhibit I to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Governing Law; Submission to Jurisdiction. (a) This
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York
City, and any appellate court thereof, in
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any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
or, to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Subject to the foregoing and to
paragraph (c) below, nothing in this Agreement shall affect any right that any
party hereto may otherwise have to bring any action or proceeding relating to
this Agreement against any other party hereto in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court and the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) The Borrower agrees that service of process may be made on the
Borrower by personal service of a copy of the summons and complaint or other
legal process in any such suit, action or proceeding, or by registered or
certified mail (postage prepaid) to the address of the Borrower specified in
Section 8.02, or by any other method of service provided for under the
applicable laws in effect in the State of New York.
SECTION 8.09. Execution in Counterparts. This Agreement 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
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE DOCUMENTATION AGENT, THE
SYNDICATION AGENT AND THE LENDERS IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE
DOCUMENTATION AGENT, THE SYNDICATION AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MAFCO FINANCE CORP.
By
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Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent
By
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Name:
Title:
