ESCROW AND DISBURSEMENT AGREEMENT
This ESCROW AND DISBURSEMENT AGREEMENT (this "Agreement"), dated as of
February 7, 1997, among United States Trust Company of New York, as escrow agent
(in such capacity, the "Escrow Agent"), United States Trust Company of New York,
as trustee (in such capacity, the "Trustee") under the Indenture (as defined
herein), Renaissance Cosmetics, Inc., a Delaware corporation (the "Company"),
and Renaissance Guarantor, Inc., a Delaware corporation (the "Guarantor").
RECITALS
A. The Indenture, dated as of February 7, 1997 (the "Indenture"), among the
Company, the Guarantor and the Trustee, provides for the issuance of $200.0
million aggregate principal amount of 11 3/4% Senior Notes due 2004 (the
"Notes").
B. The Indenture provides for a limited guarantee by the Guarantor of the
Company's obligations under the Notes and the Indenture to the extent of the
value of the property owned by the Guarantor (the "Subsidiary Guarantee").
C. As security for its obligations under the Subsidiary Guarantee and the
Indenture and as a source of payment therefor, the Guarantor hereby grants to
the Trustee, for the benefit of the holders of the Notes, a security interest,
subject to and pending disbursements made pursuant to this Agreement, in the
Escrow Account (as defined herein).
D. The parties have entered into this Agreement in order to set forth the
conditions upon which, and the manner in which, funds will be disbursed from the
Escrow Account and released from the security interest and lien described above.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows;
1. Defined Terms. (a) In addition to any other defined terms used herein,
the following terms shall constitute defined terms for purposes of this
Agreement and shall have the meanings set forth below:
"Applied" means that disbursed funds have been applied (i) first, to the
payment of interest on the Notes so long as interest thereon is due or will
become due under the Notes; (ii) only in the event that interest is no longer
due and will not become due (whether because the full principal amount of the
Notes is to be
-2-
repaid or otherwise), to the payment of principal of and premium, if any, on the
Notes, upon a purchase or redemption thereof in accordance with Section 3.1 or
Section 4.15 of the Indenture; or (iii) to any combination of the foregoing
consistent with clauses (i) and (ii).
"Available Funds" means (A) the sum of (i) the Initial Escrow Amount and
(ii) interest earned or dividends paid on the funds in the Escrow Account
(including holdings of Temporary Cash Investments), less (B) the aggregate
disbursements previously made pursuant to this Agreement.
"Collateral" shall have the meaning given in Section 6(a) hereof.
"Current UCC" means the Uniform Commercial Code as in effect in the State
of New York on the date hereof.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500.0 million or its equivalent
in foreign currency, whose debt is rated "A" (or higher) according to Standard &
Poor's ("S&P") or Xxxxx'x Investors Service, Inc. ("Moody's") at the time as of
which any investment or rollover therein is made.
"Escrow Account" shall mean an escrow account established pursuant to
Section 2 hereof.
"Escrow Account Statement" shall have the meaning given in Section 2(f)
hereof.
"Indenture" has the meaning provided in the Recitals.
"Initial Escrow Amount" shall mean $17.5 million of the net proceeds from
the offering of the Notes.
"Notes" has the meaning provided in the Recitals.
"Payment Notice and Disbursement Request" means a notice sent by the
Trustee to the Escrow Agent notifying the Escrow Agent of an upcoming Interest
Payment Date or other payment date in respect of the Notes and requesting a
disbursement, in substantially the form of Exhibit A hereto. Each Payment Notice
and Disbursement Request shall be signed by an officer of the Trustee designated
in a certificate of the Trustee setting forth specimen signatures of authorized
officers delivered to the Escrow Agent.
"Revised UCC" means the Uniform Commercial Code as revised in accordance
with
-3-
Revised Article 8, Investment Securities (With Conforming Miscellaneous
Amendments to Articles 1, 3, 4, 5, 9 and 10) 1994 Official Text.
(b) The following terms shall have the meanings given in the Indenture:
"Affiliate"
"Default"
"Event of Default"
"Interest Payment Date"
"Issue Date"
"Opinion of Counsel"
"Temporary Cash Investments"
"TIA"
2. Escrow Account; Escrow Agent.
(a) Appointment of Escrow Agent. The Guarantor and the Trustee hereby
appoint the Escrow Agent, and the Escrow Agent hereby accepts appointment, as
escrow agent, under the terms and conditions of this Agreement.
(b) Establishment of Escrow Account. Concurrently with the execution and
delivery hereof, the Escrow Agent shall establish the Escrow Account at its
office located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000. Subject
to Section 3, Section 5 and the other terms and conditions of this Agreement,
all funds accepted by the Escrow Agent pursuant to this Agreement shall be held
for the benefit of the holders of the Notes. All such funds shall be held in the
Escrow Account until disbursed in accordance with the terms hereof. The Escrow
Account shall be under the sole and exclusive possession, dominion and control
of the Escrow Agent for the benefit of the holders of the Notes. Concurrently
with the execution and delivery hereof, the Guarantor shall deliver the Initial
Escrow Amount to the Escrow Agent for deposit into the Escrow Account against
the Escrow Agent's written acknowledgment and receipt of the Initial Escrow
Amount.
(c) Escrow Agent Compensation. The Guarantor shall pay to the Escrow Agent
such compensation for services to be performed by it under this Agreement as the
-4-
Guarantor and the Escrow Agent may agree in writing from time to time. The
Escrow Agent shall be entitled to disburse from the Escrow Account all such
amounts due to the Escrow Agent as agreed upon by the Guarantor and the Escrow
Agent (including the reasonable expenses described in the next succeeding
paragraph); provided, however, that the Escrow Agent shall give written notice
to the Guarantor at least five business days prior to any such disbursement.
The Guarantor shall reimburse the Escrow Agent upon request for all
reasonable expenses, disbursements, and advances incurred or made by the Escrow
Agent in implementing any of the provisions of this Agreement, including
compensation and the reasonable expenses and disbursements of its counsel,
except any such expense, disbursement, or advance as may arise from its gross
negligence or willful misconduct.
(d) Investment of Funds in Escrow Account. Funds deposited in the Escrow
Account shall be invested and reinvested upon the following terms and
conditions:
(i) Acceptable Investments. All funds deposited in the Escrow Account
shall be initially invested by the Escrow Agent in interest bearing deposit
accounts in banking institutions having their banking offices in the State
of New York and Temporary Cash Investments in accordance with the
Guarantor's written instructions to the Escrow Agent. Thereafter, the
Escrow Agent shall invest all funds (including proceeds of any such
investments at maturity and interest earned and dividends paid on any such
investments) in the Escrow Account in cash items or Temporary Cash
Investments as instructed by the Guarantor in writing from time to time.
All Temporary Cash Investments shall be assigned to and held in the
possession of, or, in the case of Temporary Cash Investments maintained in
book-entry form with the Federal Reserve Bank, transferred to a book-entry
account in the name of, the Escrow Agent, for the benefit of the holders of
the Notes (subject to Section 3 and Section 5), with such guarantees as are
customary, except that Temporary Cash Investments maintained in book-entry
form with the Federal Reserve Bank shall be transferred to a book-entry
account in the name of the Escrow Agent at the Federal Reserve Bank that
includes only Temporary Cash Investments held by the Escrow Agent for its
customers and segregated by separate recordation in the books and records
of the Escrow Agent, subject to the provisions of Section 5 hereof.
(ii) Security Interest in Investments. No investment of funds in the
Escrow Account shall be made unless the Guarantor has certified to the
Escrow Agent and the Trustee that, upon such investment, the Trustee will
-5-
have a first priority perfected security interest in the applicable
investment. A certificate as to a class of investments need not be issued
with respect to individual investments in securities in that class if the
certificate applicable to the class remains accurate with respect to such
individual investments. On the date hereof, and on each anniversary of
the Issue Date thereafter until the date upon which the balance of the
Available Funds shall have been reduced to zero, each of the Trustee and
the Escrow Agent shall receive an Opinion of Counsel to the Company, dated
the date hereof or thereof, as the case may be, to the effect that the
Escrow Agreement creates a valid, perfected first priority security
interest in the Escrow Account and the collateral in favor of the Trustee
for the benefit of the holders of the Notes. Such opinion shall meet the
requirements of Section 314(b) of the TIA.
(iii)Interest and Dividends. All interest earned and dividends paid on
funds invested in Temporary Cash Investments shall be deposited in the
Escrow Account as additional Collateral for the benefit of the holders of
the Notes (subject to Section 3 and Section 5) and shall be reinvested in
accordance with the terms hereof at the Guarantor's written instruction.
(iv) Limitation on Escrow Agent's Responsibilities. The Escrow Agent's
sole responsibilities under this Section 2 shall be (A) to retain
possession of certificated Temporary Cash Investments (except, however,
that the Escrow Agent may surrender possession to the issuer of any such
Temporary Cash Investments for the purposes of effecting assignment,
crediting interest, or reinvesting such security or reducing such security
to cash) and to be the registered or designated owner of Temporary Cash
Investments which are not certificated, (B) to follow the Guarantor's
written instructions given in accordance with Section 2(d)(i) hereof, (C)
to invest and reinvest funds pursuant to this Section 2(d) and (D) to use
reasonable efforts to reduce to cash such Temporary Cash Investments as may
be required to fund any disbursement in accordance with Section 3 hereof.
In connection with clause (A) above, the Escrow Agent will maintain
continuous exclusive possession, dominion and control in the State of New
York of certificated Temporary Cash Investments (which should be endorsed
in blank) and cash included in the Collateral and will cause uncertificated
Temporary Cash Investments to be registered in the book-entry system of,
and
-6-
transferred to an account of the Escrow Agent or a sub-agent of the
Escrow Agent at, the Federal Reserve Bank of New York.
(e) Substitution of Escrow Agent. The Escrow Agent may resign by giving no
less than 30 days' prior written notice to the Guarantor and the Trustee. Such
resignation shall take effect upon the later to occur of (i) delivery of all
funds and Temporary Cash Investments maintained by the Escrow Agent hereunder
and copies of all books, records, plans and other documents in the Escrow
Agent's possession relating to such funds or Temporary Cash Investments or this
Agreement to a successor escrow agent mutually approved by the Guarantor and the
Trustee (which approvals shall not be unreasonably withheld) and (ii) the
Guarantor, the Trustee and such successor escrow agent entering into this
Agreement or any written successor agreement no less favorable to the interests
of the holders of the Notes and the Trustee than this Agreement; and the Escrow
Agent shall thereupon be discharged of all obligations under this Agreement and
shall have no further duties, obligations or responsibilities in connection
herewith. If a successor escrow agent has not been appointed or has not accepted
such appointment within 30 days after notice of resignation is given to the
Guarantor, the Escrow Agent may apply to a court of competent jurisdiction for
the appointment of a successor escrow agent.
(f) Escrow Account Statement. Each month, the Escrow Agent shall deliver to
the Guarantor and the Trustee a statement signed by the Escrow Agent in a form
satisfactory to the Guarantor and the Trustee setting forth with reasonable
particularity the balance of funds then in the Escrow Account and the manner in
which such funds are invested (the "Escrow Account Statement"). The parties
hereto irrevocably instruct the Escrow Agent that on the first date upon which
the balance in the Escrow Account (including the holdings of all Temporary Cash
Investments) is reduced to zero, the Escrow Agent shall deliver to the Guarantor
and to the Trustee a notice that the balance in the Escrow Account has been
reduced to zero.
3. Disbursements.
(a) Payment Notice and Disbursement Request; Disbursements. So long as
interest on the Notes is due or will become due under the Notes, the Trustee
shall, five business days prior to an Interest Payment Date in respect of the
Notes, submit to the Escrow Agent (with a copy to the Guarantor) a completed
Payment Notice and Disbursement Request substantially in the form of Exhibit A-1
hereto. In the event (and only in the event) that interest on the Notes is no
longer due and will not become due (whether because the full principal amount of
the Notes is
-7-
to be prepaid or otherwise), the Trustee shall, five business days prior to a
date of redemption or purchase pursuant to Section 3.1, Section 4.13 or Section
4.15 of the Indenture in respect of the Notes, submit to the Escrow Agent (with
a copy to the Guarantor) a completed Payment Notice and Disbursement Request
substantially in the form of Exhibit A-2 hereto.
The Escrow Agent's disbursement pursuant to any Payment Notice and
Disbursement Request shall be subject to the satisfaction of the applicable
conditions set forth in Section 3(b) hereof. Provided such Payment Notice and
Disbursement Request is not rejected by it pursuant to Section 3(b), the Escrow
Agent, within two business days following receipt of such Payment Notice and
Disbursement Request, shall disburse the funds requested in such Payment Notice
and Disbursement Request by wire or book-entry transfer of immediately available
funds to the account of the Trustee for the benefit of the holders of the Notes.
The Escrow Agent shall notify the Trustee as soon as reasonably possible (but
not later than two business days from the date of receipt of the Payment Notice
and Disbursement Request) if any Payment Notice and Disbursement Request is
rejected and the reasons therefor. In the event such rejection is based upon
nonsatisfaction of the condition in Section 3(b)(i) below, the Trustee shall
thereupon resubmit the Payment Notice and Disbursement Request with appropriate
changes.
(b) Conditions Precedent to Disbursement. The Escrow Agent's payment of any
disbursement shall be made only if: (i) the Trustee shall have submitted, in
accordance with the provisions of Section 3(a) herein, a completed Payment
Notice and Disbursement Request to the Escrow Agent substantially in the form of
Exhibit A with blanks appropriately filled in and (ii) the Escrow Agent shall
not have received any notice from the Trustee that as a result of an Event of
Default the indebtedness represented by the Notes has been accelerated and has
become due and payable (in which event the Escrow Agent shall apply all
Available Funds as required by Section 6(b)(iii) hereof).
(c) Disbursements to Company. (i) In the event a portion of the Notes has
been retired by the Company such that less than $79.0 million aggregate
principal amount of the Notes are outstanding, funds representing the interest
payment due on the next following Interest Payment Date on the amount by which
$79.0 million exceeds the outstanding aggregate principal amount of the Notes
shall, upon the written request of the Company to the Escrow Agent and the
Trustee, be paid to the Company upon compliance with the release of collateral
provisions of the TIA and upon receipt of a notice relating thereto from the
Trustee.
-8-
(d) Notwithstanding anything in this Agreement to the contrary, so long as
no Default or Event of Default shall have occurred and be continuing, all
remaining Available Funds as of February 16, 1999 shall, upon the written
request of the Guarantor to the Escrow Agent and the Trustee, be paid to the
Guarantor upon compliance with the release of collateral provisions of the TIA
and upon receipt of a notice relating thereto from the Trustee.
4. Limitation of the Escrow Agent's Liability; Responsibilities of the
Escrow Agent.
(a) The Escrow Agent's responsibility and liability under this Agreement
shall be limited as follows: (i) the Escrow Agent does not represent, warrant or
guarantee to the holders of the Notes from time to time the performance of the
Guarantor; (ii) the Escrow Agent shall have no responsibility to the Guarantor
or the holders of the Notes or the Trustee from time to time as a consequence of
performance by the Escrow Agent hereunder, except for any gross negligence or
willful misconduct of the Escrow Agent; (iii) the Guarantor shall remain solely
responsible for all aspects of the Company's business and conduct; and (iv) the
Escrow Agent is not obligated to supervise, inspect, or inform the Guarantor or
any third party of any matter referred to above.
(b) No implied covenants or obligations shall be inferred from this
Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the
provisions of any agreement beyond the specific term hereof. Specifically and
without limiting the foregoing, the Escrow Agent shall in no event have any
liability in connection with its investment, reinvestment or liquidation, in
good faith and in accordance with the terms hereof, of any funds or Temporary
Cash Investments held by it hereunder, including, without limitation, any
liability for any delay not resulting from gross negligence or willful
misconduct in such investment, reinvestment or liquidation, or for any loss of
principal or income incident to any such delay.
(c) The Escrow Agent shall be entitled to rely upon any judicial order or
judgment, upon any written opinion of counsel or upon any certification,
instruction, notice, or other writing delivered to it by the Guarantor or the
Trustee in compliance with the provisions of this Agreement without being
required to determine the authenticity or the correctness of any fact stated
therein or the propriety or validity of service thereof. The Escrow Agent may
act in reliance upon any instrument comporting with the provisions of this
Agreement or signature believed by it to be genuine and may assume that any
-9-
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
(d) At any time the Escrow Agent may request in writing an instruction in
writing from the Guarantor, and may at its own option include in such request
the course of action it proposes to take and the date on which it proposes to
act, regarding any matter arising in connection with its duties and obligations
hereunder; provided, however, that the Escrow Agent shall state in such request
that it believes in good faith that such proposed course of action is consistent
with another identified provision of this Agreement. The Escrow Agent shall not
be liable to the Guarantor for acting without the Guarantor's consent in
accordance with such a proposal on or after the date specified therein if (i)
the specified date is at least five business days after the Guarantor receives
the Escrow Agent's request for instructions and its proposed course of action,
and (ii) prior to so acting, the Escrow Agent has not received the written
instructions requested from the Guarantor.
(e) The Escrow Agent may act pursuant to the written advice of counsel
chosen by it with respect to any matter relating to this Agreement and (subject
to Section 4(a)(ii)) shall not be liable for any action taken or omitted in
accordance with such advice.
(f) The Escrow Agent shall not be called upon to advise any party as to
selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
(g) In the event of any ambiguity in the provisions of this Agreement with
respect to any funds or property deposited hereunder, the Escrow Agent shall be
entitled to refuse to comply with any and all claims, demands or instructions
with respect to such property or funds, and the Escrow Agent shall not be or
become liable for its failure or refusal to comply with conflicting claims,
demands or instructions. The Escrow Agent shall be entitled to refuse to act
until either any conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by agreement
between the conflicting claimants as evidenced in a writing, satisfactory to the
Escrow Agent, or the Escrow Agent shall have received security or an indemnity
satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless
from and against any and all loss, liability or expense which the Escrow Agent
may incur by reason of its acting. The Escrow Agent may in addition elect in its
-10-
sole option to commence an interpleader action or seek other judicial relief or
orders as the Escrow Agent may deem necessary.
(h) No provision of this Agreement shall require the Escrow Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder.
5. Indemnity. The Company shall indemnify, hold harmless and defend the
Escrow Agent and its directors, officers, agents, employees and controlling
persons, from and against any and all claims, actions, obligations, liabilities
and expenses, including defense costs, investigative fees and costs, legal fees,
and claims for damages, arising from the Escrow Agent's performance under this
Agreement, except to the extent that such liability, expense or claim is
directly attributable to the gross negligence or willful misconduct of any of
the foregoing persons. In connection with any claim, action, obligation,
liability or expense for which indemnification is sought by the Escrow Agent
hereunder, the Escrow Agent shall be entitled to recover its costs from funds
available in the Escrow Account as provided in Section 2(c), provided, however,
that the Company agrees to pay such costs if funds in the Escrow Account are
insufficient. The provisions of this Section shall survive any termination,
satisfaction or discharge of this Agreement as well as the resignation or
removal of the Escrow Agent.
6. Grant of Security Interest; Instructions to Escrow Agent.
(a) The Guarantor hereby irrevocably grants a first priority security
interest in, pledges, assigns and sets over to the Trustee all of the
Guarantor's right, title and interest in the Escrow Account, all funds and
financial assets held therein and all Temporary Cash Investments held by (or
otherwise maintained in the name of) the Escrow Agent pursuant to Section 2
hereof, as well as all rights of the Guarantor under this Agreement
(collectively, the "Collateral"), in order to secure all the obligations of the
Guarantor under the Subsidiary Guarantee and the Indenture and any other
obligation, now or hereafter arising, of every kind and nature, owed by the
Guarantor under the Subsidiary Guarantee and the Indenture to the holders of the
Notes or to the Trustee. The Guarantor shall take all actions necessary on its
part to insure the continuance of a first priority security interest in the
Collateral in favor of the Trustee in order to secure all such obligations and
indebtedness. Each of the Trustee and the Escrow Agent shall have received an
opinion from counsel to the Guarantor, on the date hereof, and annually on the
anniversary of the Issue Date to the
-11-
effect that the Escrow Agreement creates a valid, perfected first priority
security interest in favor of the Trustee in the Escrow Account and the
Collateral for the benefit of the holders of the Notes.
(b) The Guarantor and the Trustee hereby irrevocably instruct the Escrow
Agent to, and the Escrow Agent will: (i)(A) maintain sole and exclusive
possession, dominion and control over funds in the Escrow Account for the
benefit of the Trustee to the extent specifically required herein, (B) maintain,
or cause its agent within the State of New York to maintain, exclusive
possession, dominion and control of all certified Temporary Cash Investments
purchased hereunder that are physically possessed by the Escrow Agent in order
for the Trustee to enjoy a continuous perfected first priority security interest
therein under the law of the State of New York (the Guarantor hereby agreeing
that in the event any certificated Temporary Cash Investments are in the
possession of the Guarantor or a third party, the Guarantor shall use its best
efforts to deliver all such certificates to the Escrow Agent), (C) take all
steps set forth in the opinion of counsel described in paragraph (a) above to
cause the Trustee to enjoy a continuous perfected first priority security
interest under the New York Uniform Commercial Code and any applicable law of
the State of New York in all Temporary Cash Investments purchased hereunder that
are not certificated and (D) maintain the Collateral free and clear of all
liens, security interests, safekeeping or other charges, demands and claims
against the Escrow Agent of any nature now or hereafter existing in favor of
anyone other than the Trustee; (ii) promptly notify the Trustee if the Escrow
Agent receives written notice that any person other than the Trustee has a lien
or security interest upon any portion of the Collateral (other than any claim
which Escrow Agent may have against the Escrow Account for unpaid fees and
expenses) and (iii) in addition to disbursing amounts held in escrow pursuant to
any Payment Notice and Disbursement Requests given to it by the Trustee pursuant
to Section 3, upon receipt of written notice from the Trustee of the
acceleration of the maturity of the Notes or the failure by the Guarantor to pay
principal or interest (after giving effect to any disbursements hereunder) on
the Notes, and direction from the Trustee to disburse all Available Funds to the
Trustee, as promptly as practicable, after following the procedures set forth in
Section 4(d), disburse all funds held in the Escrow Account to the Trustee and
transfer title to all Temporary Cash Investments held by the Escrow Agent
hereunder to the Trustee. The lien and security interest provided for by this
Section 6 shall automatically terminate and cease as to, and shall not extend or
apply to, and the Trustee shall have no security interest in, any funds
disbursed by the Escrow Agent to the Guarantor pursuant to this Agreement. The
Escrow Agent shall act solely as the Trustee's agent in connection with the
-12-
duties under this Section 6, notwithstanding any other provision contained in
this Agreement, without any right to receive compensation from the Trustee and
without any authority to obligate the Trustee or to compromise or pledge its
security interest hereunder.
(c) The Guarantor will deliver to the Trustee, in due form for filing in
state and local filing offices in the State of New York and any other
jurisdictions reasonably specified by the Trustee, UCC-1 financing statements
for the purpose of perfecting the security interest of the Trustee in the Escrow
Account and the financial assets credited to or held in such account and
proceeds thereof.
(d) Any funds and Temporary Cash Investments collected by the Trustee
pursuant to Section 6(b)(iii) shall be applied as provided in the Indenture.
(e) Upon written demand, the Guarantor will execute and deliver to the
Trustee such instruments and documents as the Trustee may reasonably deem
necessary or advisable to confirm or perfect the rights of the Trustee under
this Agreement and the Trustee's interest in the Collateral. The Trustee will
take all necessary action to preserve and protect the security interest created
hereby as a lien and encumbrance upon the Collateral.
(f) The Guarantor hereby appoints the Trustee as its attorney-in-fact
effective upon and during the continuance of a Default or an Event of Default
under the Indenture with full power of substitution to do any act which the
Guarantor is obligated hereunder to do, and the Trustee may exercise such rights
as the Company might exercise with respect to the Collateral and to take any
action in the Guarantor's name to protect the Trustee's security interest
hereunder.
(g) The Guarantor's chief executive office is located at 000 Xxxxxxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000. The Guarantor shall give not less than
60 days' prior notice to the Trustee of any change in the location of its chief
executive office and any change in the Guarantor's name.
7. Termination. This Agreement shall terminate automatically ten days
following disbursement of all funds remaining in the Escrow Account (including
Temporary Cash Investments), unless sooner terminated by agreement of the
parties hereto (in accordance with the terms hereof and not in violation of the
Inden ture); provided, however, that the obligations of the Company under
Section 5 (and any existing claims thereunder) shall survive termination of this
Agreement or the resignation of the Escrow Agent; and provided, further, that
until such tenth
-13-
day, the Company will cause this Agreement (or any permitted successor
agreement) to remain in effect and will cause there to be an escrow agent
(including any permitted successor thereto) acting hereunder (or under any such
permitted successor agreement).
8. Miscellaneous.
(a) Waiver. Any party hereto may specifically waive any breach of this
Agreement by any other party, but no such waiver shall be deemed to have been
given unless such waiver is in writing, signed by the waiving party and
specifically designating the breach waived, nor shall any such waiver constitute
a continuing waiver of similar or other breaches.
(b) Invalidity. If for any reason whatsoever any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
(c) Assignment. This Agreement is personal to the parties hereto, and the
rights and duties of any party hereunder shall not be assignable except with the
prior written consent of the other parties. Notwithstanding the foregoing, this
Agreement shall inure to and be binding upon the parties and their successors
and permitted assigns.
(d) Benefit. The parties hereto and their successors and permitted assigns,
but no others, shall be bound hereby and entitled to the benefits hereof;
provided, however, that the holders of the Notes and their permitted assigns
shall be entitled to the benefits hereof and to enforce this Agreement.
(d) Time. Time is of the essence for each provision of this Agreement.
(f) Entire Agreement; Amendments. This Agreement and the Indenture contain
the entire agreement among the parties with respect to the subject matter hereof
and supersede any and all prior agreements, understandings and commitments,
whether oral or written. This Agreement may be amended only by a writing signed
by a duly authorized representative of each party.
(g) Notices. All notices and other communications required or permitted to
be given or made under this Agreement sha1l be in writing and shall be deemed to
-14-
have been duly given and received, regardless of when and whether received,
either: (a) on the day of hand delivery; (b) three business days following the
day sent, when sent by United States certified mail, postage and certification
fee prepaid, return receipt requested, addressed as follows; (c) when
transmitted by telecopy with verbal confirmation of receipt by the telecopy
operator; or (d) one business day following the day timely delivered to a
next-day air courier:
To Escrow Agent:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Department
Telecopy: 000-000-0000
Telephone: 000-000-0000
To Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
To the Guarantor:
Renaissance Guarantor, Inc.
-15-
c/o Renaissance Cosmetics, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X.X. Kaung, Chief
Financial Officer
Telecopy: 000-000-0000
Telephone: 000-000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) Captions. Captions in this Agreement are for convenience only and shall
not be considered or referred to in resolving questions of interpretation of
this Agreement.
(j) Choice of Law. The existence, validity, construction, operation and
effect of any and all terms and provisions of this Agreement shall be determined
in accordance with and governed by the laws of the State of New York. The
parties to this Agreement hereby agree that jurisdiction over such parties and
over the subject matter of any action or proceeding arising under this Agreement
may be exercised by a competent Court of the State of New York, or by a United
States Court, sitting in New York City. The Company and the Guarantor hereby
submit to the personal jurisdiction of such courts, hereby waive personal
service of process upon each of them and consent that any such service of
process may be made by certified or registered mail, return-receipt requested,
directed to the Company and the Guarantor at each of their addresses last
specified for notices hereunder, and service so made shall be deemed completed
five days after the same shall have been so mailed, and hereby waives the right
to a trial by jury in any action or proceeding with the Escrow Agent. All
actions and proceedings brought by the Company and the Guarantor against the
-16-
Escrow Agent relating to or arising from, directly or indirectly, this Agreement
shall be litigated only in courts within the State of New York.
(k) Each of the Company and the Guarantor hereby represents and warrants
that this Agreement has been duly authorized, executed and delivered on its
behalf and constitutes the legal, valid and binding obligation of the Company
and the Guarantor. The execution, delivery and performance of this Agreement by
each of the Company and the Guarantor does not violate any applicable law or
regulation to which each of the Company and the Guarantor is subject and does
not require the consent of any governmental or other regulatory body to which
each of the Company and the Guarantor is subject, except for such consents and
approvals as have been obtained and are in full force and effect.
(l) Each of the Escrow Agent and the Trustee hereby represents and warrants
that this Agreement has been duly authorized, executed and delivered on its
behalf and constitutes its legal, valid and binding obligation.
-17-
IN WITNESS WHEREOF, the parties have executed and delivered this Escrow and
Disbursement Agreement as of the day first above written.
ESCROW AGENT: UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: XXXXXX X. XXXXX
Title: SR VICE PRESIDENT
TRUSTEE: UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: XXXXXX X. XXXXX
Title: SR VICE PRESIDENT
GUARANTOR: RENAISSANCE GUARANTOR, INC.
By: /s/ Xxxxxx X.X. Kaung
--------------------------
Name: Xxxxxx X.X. Kaung
Title: GVP
COMPANY: RENAISSANCE COSMETICS, INC.
By: /s/ Xxxxxx X.X. Kaung
--------------------------
Name: Xxxxxx X.X. Kaung
Title: GVP
EXHIBIT A-1 TO ESCROW AND DISBURSEMENT AGREEMENT
Form of Payment, Notice and Disbursement Request
(Letterhead of the Trustee)
[Date], 199
Re: Disbursement Request No.
-----------
(indicate whether revised)
Ladies and Gentlemen:
We refer to the Escrow and Disbursement Agreement, dated as of February 7,
1997 (the "Escrow Agreement"), among you (the "Escrow Agent"), the undersigned,
as Trustee, RENAISSANCE COSMETICS, INC., a Delaware corporation (the "Company"),
and RENAISSANCE GUARANTOR, INC., a Delaware corporation (the "Guarantor").
Capitalized terms used herein shall have the meanings given in the Escrow
Agreement.
This letter constitutes a Payment Notice and Disbursement Request under the
Escrow Agreement.
[choose one of the following, as applicable]
[The undersigned hereby (a) notifies you that no Default or Event of
Default has occurred and is continuing and a scheduled interest payment is due
and payable on , 199 and (b) requests a disbursement of funds contained
in the Escrow Account in the amount of $ , which represents the
interest due on such date on $79.0 million aggregate principal amount of the
Notes.]
[The undersigned hereby notifies you that no Default or Event of Default
has occurred and is continuing and a scheduled interest payment is due and
payable on , 199 of which $ represents the interest due on
$79.0 million aggregate principal of the Notes, which amount exceeds the amount
of remaining Available Funds in the Escrow Account. Accordingly, you are hereby
requested to disburse all remaining funds contained in the Escrow Account such
that the balance in the Escrow Account is reduced to zero.]
-2-
[The undersigned hereby (a) notifies you that a Default or an Event of
Default has occurred and is continuing and a scheduled interest payment is due
and payable on ________, 1999_ and (b) requests a disbursement of funds
contained in the Escrow Account in the amount of $______, which represents the
interest due on such date on the full outstanding principal amount of the
Notes.]
[The undersigned hereby notifies you that a Default or an Event of Default
has occurred and is continuing and a scheduled interest payment is due and
payable on _______, 199_ in the amount of $______, which amount exceeds the
amount of remaining Available Funds in the Escrow Account. Accordingly, you are
hereby requested to disburse all remaining funds contained in the Escrow Account
such that the balance in the Escrow Account is reduced to zero.]
[The undersigned hereby (a) notifies you that a portion of the Notes has
been retired such that less than $79.0 million aggregate principal amount of the
Notes are outstanding and that, other than as part for such payment, no interest
on the Notes is due or will become due hereafter and (b) authorizes you to
release $ of funds in the Escrow Account to the Company (to an account
designated by the Company in writing), which amount represents the interest
payment due and payable on , 199 on the amount by which $79.0 million
exceeds the outstanding aggregate principal amount of the Notes.]
In connection with the requested disbursement, the undersigned hereby
notifies you that:
1. The Notes have [not], as a result of an Event of Default (as
defined in the Indenture), been accelerated and become due and payable.
2. All prior disbursements from the Escrow Account have been Applied.
3. [add wire instructions]
-3-
The Escrow Agent is entitled to rely on the foregoing in disbursing funds
relating to this Payment Notice and Disbursement Request.
By:
-------------------------
Name:
Title:
-4-
EXHIBIT A-2 TO ESCROW AND DISBURSEMENT AGREEMENT
Form of Payment, Notice and Disbursement Request
(Letterhead of the Trustee)
[Date], 199
Re: Disbursement Request No.
-----------
(indicate whether revised)
Ladies and Gentlemen:
We refer to the Escrow and Disbursement Agreement, dated as of February 7,
1997 (the "Escrow Agreement"), among you (the "Escrow Agent"), the undersigned,
as Trustee, RENAISSANCE COSMETICS, INC., a Delaware corporation (the "Company"),
and RENAISSANCE GUARANTOR, INC., a Delaware corporation (the "Guarantor").
Capitalized terms used herein shall have the meanings given in the Escrow
Agreement.
This letter constitutes a Payment Notice and Disbursement Request under the
Escrow Agreement.
[choose one of the following, as applicable]
[The undersigned hereby (a) notifies you that a payment of $
is due and payable on , 199 in connection with a purchase or
redemption of Notes, plus accrued inter est, if any, pursuant to the provisions
of [Section 3.1] [Section 4.13] [Section 4.15] of the Indenture and that, other
than as part for such payment, no interest on the Notes is due or will become
due hereafter and (b) requests a disbursement of funds contained in the Escrow
Account in such amount.] [The undersigned hereby notifies you that a payment of
$ is due and payable on , 199 in connection with a purchase or
redemption of Notes, plus accrued interest, if any, pursuant to the provisions
of [Section 3.1] [Section 4.13] [Section 4.15] of the Indenture, which amount
exceeds the amount of remaining Available Funds in the Escrow Account and that,
other than as part for such payment, no interest on the Notes is due or will
become due hereafter. Accordingly, you are hereby
-5-
requested to disburse all remaining funds contained in the Escrow Account such
that the balance in the Escrow Account is reduced to zero.]
In connection with the requested disbursement, the undersigned hereby
notifies you that:
1. The Notes have [not], as a result of an Event of Default (as
defined in the Indenture), been accelerated and become due and payable.
2. All prior disbursements from the Escrow Account have been Applied.
3. [add wire instructions]
The Escrow Agent is entitled to rely on the foregoing in disbursing funds
relating to this Payment Notice and Disbursement Request.
By:
-------------------------
Name:
Title:
