as Borrower
as Administrative Agent
and Collateral Agent
as Syndication Agent
as Sole Lead Arranger and Sole Bookrunner
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153-0119
TABLE OF CONTENTS
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Article I |
| DEFINITIONS | 1 | ||
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| Section 1.1 |
| Defined Terms | 1 |
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| Section 1.2 |
| Other Definitional Provisions | 32 |
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Article II |
| AMOUNTS AND TERMS OF TERM LOAN COMMITMENTS | 33 | ||
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| Section 2.1 |
| Term Loan Commitments | 33 |
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| Section 2.2 |
| Obligations of the Company | 33 |
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| Section 2.3 |
| Procedure for Borrowing Term Loans | 34 |
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| Section 2.4 |
| Amortization of Term Loans | 34 |
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| Section 2.5 |
| Use of Proceeds of Term Loans | 35 |
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| Section 2.6 |
| Term Facility Increase | 35 |
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Article III |
| [Intentionally Omitted.] | 37 | ||
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Article IV |
| [Intentionally Omitted.] | 37 | ||
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Article V |
| [Intentionally Omitted.] | 37 | ||
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Article VI |
| [Intentionally Omitted.] | 37 | ||
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Article VII |
| PROVISIONS RELATING TO CERTAIN EXTENSIONS OF CREDIT; FEES AND PAYMENT | 37 | ||
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| Section 7.1 |
| [Intentionally Omitted.] | 37 |
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| Section 7.2 |
| Optional Prepayments | 37 |
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| Section 7.3 |
| Mandatory Prepayments | 37 |
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| Section 7.4 |
| Application of Payments | 39 |
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| Section 7.5 |
| Interest Rate and Payment Dates; Risk Participation Fees | 39 |
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| Section 7.6 |
| [Intentionally Omitted.] | 39 |
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| Section 7.7 |
| Conversion Options, Minimum Tranches and Maximum Interest Periods | 39 |
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| Section 7.8 |
| Inability to Determine Interest Rate | 40 |
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| Section 7.9 |
| Illegality | 41 |
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| Section 7.10 |
| Requirements of Law; Changes of Law | 41 |
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| Section 7.11 |
| Indemnity | 43 |
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| Section 7.12 |
| Taxes | 43 |
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| Section 7.13 |
| [Intentionally Omitted.] | 46 |
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| Section 7.14 |
| Computation of Interest and Fees | 46 |
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| Section 7.15 |
| Pro Rata Treatment and Payments | 46 |
i
TABLE OF CONTENTS
(continued)
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Article VIII |
| REPRESENTATIONS AND WARRANTIES | 48 | ||
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| Section 8.1 |
| Corporate Existence | 48 |
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| Section 8.2 |
| Corporate Power | 48 |
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| Section 8.3 |
| No Legal Bar to Loans | 49 |
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| Section 8.4 |
| No Material Litigation | 49 |
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| Section 8.5 |
| No Default | 49 |
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| Section 8.6 |
| Ownership of Properties; Liens | 50 |
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| Section 8.7 |
| Taxes | 50 |
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| Section 8.8 |
| ERISA | 50 |
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| Section 8.9 |
| Financial Condition | 51 |
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| Section 8.10 |
| No Change | 51 |
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| Section 8.11 |
| Federal Regulations | 51 |
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| Section 8.12 |
| Investment Company Act; PUHCA | 51 |
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| Section 8.13 |
| Company Information; Matters Relating to Subsidiaries | 52 |
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| Section 8.14 |
| Mortgages | 52 |
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| Section 8.15 |
| Solvency | 52 |
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| Section 8.16 |
| Environmental Matters | 52 |
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| Section 8.17 |
| Models | 53 |
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| Section 8.18 |
| Disclosure | 54 |
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| Section 8.19 |
| Senior Indebtedness | 54 |
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| Section 8.20 |
| Regulation H | 54 |
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| Section 8.21 |
| Affiliate Obligations | 54 |
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| Section 8.22 |
| Indebtedness Owing to Affiliates | 54 |
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Article IX |
| CONDITIONS PRECEDENT | 54 | ||
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| Section 9.1 |
| Conditions to Extensions of Credit | 54 |
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| Section 9.2 |
| Conditions to Each Term Facility Increase | 58 |
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Article X |
| AFFIRMATIVE COVENANTS | 59 | ||
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| Section 10.1 |
| Financial Statements | 59 |
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| Section 10.2 |
| Certificates; Other Information | 60 |
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| Section 10.3 |
| Payment of Obligations | 61 |
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| Section 10.4 |
| Conduct of Business and Maintenance of Existence | 61 |
ii
TABLE OF CONTENTS
(continued)
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| Section 10.5 |
| Maintenance of Property; Insurance | 61 |
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| Section 10.6 |
| Inspection of Property; Books and Records; Discussions | 62 |
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| Section 10.7 |
| Notices | 62 |
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| Section 10.8 |
| Maintenance of Corporate Identity | 63 |
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| Section 10.9 |
| Environmental Laws | 63 |
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| Section 10.10 |
| Additional Guaranties | 63 |
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| Section 10.11 |
| Additional Stock Pledges | 64 |
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| Section 10.12 |
| Additional Collateral | 65 |
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| Section 10.13 |
| Asset Transfers | 65 |
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| Section 10.14 |
| Intellectual Property | 66 |
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| Section 10.15 |
| Additional Mortgages | 68 |
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| Section 10.16 |
| Post-Closing Matters | 68 |
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| Section 10.17 |
| [Intentionally Omitted.] | 68 |
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| Section 10.18 |
| Tax Reporting | 68 |
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| Section 10.19 |
| Control Accounts; Approved Deposit Accounts | 68 |
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Article XI |
| NEGATIVE COVENANTS | 69 | ||
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| Section 11.1 |
| Financial Covenant | 69 |
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| Section 11.2 |
| Indebtedness | 69 |
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| Section 11.3 |
| Limitation on Liens | 73 |
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| Section 11.4 |
| Limitation on Contingent Obligations | 75 |
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| Section 11.5 |
| Limitation on Fundamental Changes | 76 |
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| Section 11.6 |
| Limitation on Sale of Assets | 76 |
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| Section 11.7 |
| Limitation on Restricted Payments | 77 |
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| Section 11.8 |
| Limitation on Investments | 78 |
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| Section 11.9 |
| Limitation on Payments on Account of Debt; Synthetic Purchase Agreements | 81 |
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| Section 11.10 |
| Limitation on Transactions with Affiliates | 82 |
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| Section 11.11 |
| Hazardous Materials | 82 |
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| Section 11.12 |
| Accounting Changes | 82 |
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| Section 11.13 |
| Limitation on Negative Pledge Clauses | 82 |
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| Section 11.14 |
| Amendment of Company Tax Sharing Agreement | 83 |
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| Section 11.15 |
| Limitations on Restrictions on Subsidiary Distributions | 83 |
iii
TABLE OF CONTENTS
(continued)
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| Section 11.16 |
| Limitation on Activities of RPH | 83 |
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| Section 11.17 |
| Prohibition on Speculative Hedging Transactions | 83 |
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Article XII |
| EVENTS OF DEFAULT | 83 | ||
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| Section 12.1 |
| Events of Default | 83 |
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| Section 12.2 |
| Right to Cure | 88 |
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Article XIII |
| THE AGENTS | 88 | ||
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| Section 13.1 |
| Authorization and Action | 88 |
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| Section 13.2 |
| Agents’ Reliance, Etc | 89 |
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| Section 13.3 |
| Posting of Approved Electronic Communications | 90 |
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| Section 13.4 |
| The Agents Individually | 91 |
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| Section 13.5 |
| Lender Credit Decision | 91 |
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| Section 13.6 |
| Indemnification | 91 |
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| Section 13.7 |
| Successor Agent | 92 |
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| Section 13.8 |
| Concerning the Collateral and the Security Documents | 92 |
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Article XIV |
| MISCELLANEOUS | 93 | ||
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| Section 14.1 |
| Amendments and Waivers | 93 |
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| Section 14.2 |
| Notices | 95 |
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| Section 14.3 |
| No Waiver; Cumulative Remedies | 97 |
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| Section 14.4 |
| Survival of Representations and Warranties | 97 |
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| Section 14.5 |
| Payment of Expenses | 97 |
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| Section 14.6 |
| Assignments and Participations; Binding Effect | 98 |
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| Section 14.7 |
| Adjustments; Set-off | 101 |
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| Section 14.8 |
| [Intentionally Omitted.] | 102 |
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| Section 14.9 |
| [Intentionally Omitted.] | 102 |
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| Section 14.10 |
| Intercreditor Agreement | 102 |
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| Section 14.11 |
| Severability; Conflicts | 102 |
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| Section 14.12 |
| Counterparts; Confidentiality | 102 |
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| Section 14.13 |
| Submission To Jurisdiction; Waivers | 103 |
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| Section 14.14 |
| Acknowledgements | 104 |
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| Section 14.15 |
| USA PATRIOT Act | 104 |
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| Section 14.16 |
| Governing Law | 104 |
iv
TABLE OF CONTENTS
(continued)
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| Section 14.17 |
| Indemnities | 104 |
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| Section 14.18 |
| Limitation of Liability | 105 |
v
TABLE OF CONTENTS
(continued)
Schedules |
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Schedule I |
| Lenders; Addresses for Notices |
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Schedule II |
| Term Loan Commitments |
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Schedule 1.1 |
| Existing Eligible Obligations |
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Schedule 8.13(a) |
| Company Information |
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Schedule 8.13(b) |
| Subsidiaries of the Company; Subsidiaries Scheduled for Dissolution |
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Schedule 8.16 |
| Environmental Matters |
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Schedule 9.1(d) |
| Mortgages |
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Schedule 9.1(h)(iv) |
| Domestic Local Counsel |
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Schedule 10.16 |
| Post-Closing Matters |
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Schedule 11.3 |
| Liens |
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Schedule 11.4 |
| Contingent Obligations |
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Schedule 11.6 |
| Disposition Assets |
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Exhibits |
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Exhibit A |
| Form of Term Loan Note |
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Exhibit B |
| [Intentionally Omitted] |
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Exhibit C |
| [Intentionally Omitted] |
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Exhibit D |
| Form of Intercreditor Agreement |
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Exhibit E |
| Form of Guaranty |
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Exhibit F |
| Form of Pledge and Security Agreement |
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Exhibit G |
| Form of Mortgage |
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Exhibit H-1 |
| Form of Notice of Borrowing |
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Exhibit H-2 |
| [Intentionally Omitted] |
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Exhibit H-3 |
| [Intentionally Omitted] |
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Exhibit I |
| Form of Notice of Conversion or Continuation |
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Exhibit J |
| Form of Affiliate Subordination Letter |
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Exhibit K-1 |
| Form of Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP |
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Exhibit K-2 |
| Form of Opinion of Executive Vice President and General Counsel of the Company |
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Exhibit K-3 |
| Form of Opinion of Weil, Gotshal & Manges LLP |
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Exhibit L |
| Form of Assignment and Acceptance |
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Exhibit M |
| Form of Compliance Certificate |
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Exhibit N |
| Form of Capital Contribution Note |
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Exhibit O |
| [Intentionally Omitted] |
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Exhibit P |
| [Intentionally Omitted] |
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Exhibit Q |
| Form of U.S. Tax Compliance Certificate |
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Exhibit R |
| Form of Solvency Certificate |
vi
“Agent Affiliates” shall have the meaning assigned to such term inSection 13.3(c).
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Prepayment Date | Prepayment Fee |
On or prior to the first anniversary of the Closing Date | 3.00% |
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Prepayment Date | Prepayment Fee |
After the first anniversary of the Closing Date and on or prior to the second anniversary of the Closing Date | 2.00% |
After the second anniversary of the Closing Date and on or prior to the third anniversary of the Closing Date | 1.00% |
After the third anniversary of the Closing Date | None |
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(c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement, the Notes, any Security Documents or any other Loan Document shall refer to this Agreement, such Note, such Security Document or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement, such Note, such Security Document or such other Loan Document, as the case may be; and Article, Section, Schedule and Exhibit references contained in this Agreement are references to Articles, Sections, Schedules and Exhibits in or to this Agreement, unless otherwise specified. The term “including” when used in any Loan Document means “including without limitation” except when used in the computation of time periods.
(b) The Company agrees that each Lender is authorized to record (i) the date and amount of the Term Loan made by such Lender pursuant toSection 2.1, (ii) the date of each interest rate conversion pursuant toSection 7.7and the principal amount subject thereto, (iii) the date and amount of each payment or prepayment of principal of and interest with respect to each Term Loan and (iv) in the case of each Eurodollar Loan, the interest rate and Interest Period, in the books and records of such Lender and in such manner as is reasonable and customary for such Lender and a certificate of an officer of such Lender, setting forth in reasonable detail the information so recorded, shall constitute prima facie evidence of the accuracy of the information
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Installment | Principal Amount |
April 15, 2008 | $2,100,000 |
July 15, 2008 | $2,100,000 |
October 15, 2008 | $2,100,000 |
January 15, 2009 | $2,100,000 |
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Installment | Principal Amount |
April 15, 2009 | $2,100,000 |
July 15, 2009 | $2,100,000 |
October 15, 2009 | $2,100,000 |
January 15, 2010 | $2,100,000 |
April 15, 2010 | $2,100,000 |
July 15, 2010 | $2,100,000 |
October 15, 2010 | $2,100,000 |
January 15, 2011 | $2,100,000 |
April 15, 2011 | $2,100,000 |
July 15, 2011 | $2,100,000 |
October 15, 2011 | $2,100,000 |
Term Loan Maturity Date | $808,500,000 |
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Required Lenders without any notice to or consent of or approval by any Loan Party or any other Person that is not a party to this Agreement;provided,however, that any such amendment adversely affecting any Agent shall also require the prior written consent of such Agent.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Administrative Agent and the Collateral Agent to enter into this Agreement and to make the Loans hereunder, the Company hereby represents and warrants to each of them that:
Section 8.1 Corporate Existence. Each Loan Party is duly organized, validly existing and (to the extent applicable under the laws of the jurisdiction of its organization) in good standing under the laws of the jurisdiction of its incorporation, has the corporate (or other requisite legal) power to own its assets and to transact the business in which it is presently engaged, and is (to the extent applicable under the laws of the relevant jurisdiction) duly qualified as a foreign corporation and (to the extent applicable under the laws of the relevant jurisdiction) in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification and where all such failures to so qualify and be in good standing would, in the aggregate, be reasonably likely to have a Material Adverse Effect.
Section 8.2 Corporate Power. (a) Each Loan Party has the corporate power, authority and legal right to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party and, in the case of the Company, to borrow hereunder, and it has taken as of the Closing Date all necessary corporate action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and, in the case of the Company, to authorize its borrowings on the terms and conditions of this Agreement.
(b) No consent of any other Person (including, without limitation, stockholders or creditors of the Company or of any Parent of the Company), and no consent, license, permit, approval or authorization of, exemption by, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement and the other Loan Documents to which any Loan Party is a party by or against such Loan Party, except for (i) filing of the Mortgages referred to inSection 9.1(d), (ii) any filings required under the UCC, (iii) any filings required to be made with the U.S. Patent and Trademark Office and the U.S. Copyright Office, (iv) any filings, notices, consents, licenses, permits, approvals, authorizations, registrations or declarations required under the laws of jurisdictions other than the United States or any political subdivision thereof in connection with the pledge of stock of Foreign Subsidiaries or any assets located in, or created under, the laws of any such jurisdiction or political subdivision and (v) any consents, licenses, permits, approvals or authorizations, exemptions, registrations, filings or declarations that have already been obtained and remain in full force and effect.
(c) This Agreement has been, and the other Loan Documents to which it is a party will be, executed and delivered by a duly authorized officer of each Loan Party. This Agreement constitutes, and the other Loan Documents to which it is a party, when executed and delivered by it and the other parties thereto, will constitute, the legal, valid and binding obligations of each Loan Party, enforceable against it in accordance with their respective terms
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except as enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and except as enforceability may be limited by general principles of equity.
Section 8.3 No Legal Bar to Loans. The execution, delivery and performance by each Loan Party of each Loan Document to which it is a party will not violate any Contractual Obligation or material Requirement of Law to which such Loan Party is a party, or, to the best knowledge of the Company, any Parent of the Company is a party or by which such Loan Party or, to the best knowledge of the Company, any Parent of the Company or any of their respective material properties or assets may be bound, and will not result in the creation or imposition of any Lien (other than under the Security Documents or as contemplated by the Intercreditor Agreement) on any of their respective material properties or assets pursuant to the provisions of any Contractual Obligation.
Section 8.4 No Material Litigation. No litigation, investigation or administrative proceeding of or before any court, arbitrator or Governmental Authority is presently pending or, to the knowledge of any Loan Party, threatened against it, any of the other Loan Parties, or any of its or their properties or assets, (a) with respect to this Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby, (b) with respect to the validity or enforceability of the obligations of the Company or any Loan Party under this Agreement and the other Loan Documents to which it is a party or (c) which would be reasonably likely to have a Material Adverse Effect, except (in the case of thisclause (c) only) for any litigation, investigation or administrative proceeding which has been disclosed in any of the Company’s or Revlon’s public filings with the Securities and Exchange Commission including its Form 10-K for the fiscal year ended December 31, 2005 and its reports on Form 10-Q for the fiscal quarter ended September 30, 2006 or which arises out of the same facts and circumstances, and alleges substantially the same complaints and damages, as any litigation, investigation or proceeding so disclosed and in which there has been no material adverse change since the date of such disclosure.
Section 8.5 No Default. Neither the Company nor any of its Subsidiaries is in default in any material respect in the payment or performance of any material obligations or in the performance of any Contractual Obligation to which it is a party or by which it or any of its material properties or assets may be bound, and no Default hereunder has occurred and is continuing. Neither the Company nor any of its Subsidiaries is in default under any material order, award or decree of any court, arbitrator or Governmental Authority binding upon or affecting it or by which any of its material properties or assets is bound or affected, and no such order, award or decree would be reasonably likely to have a Material Adverse Effect.
Section 8.6 Ownership of Properties; Liens. Except as is or would be permitted pursuant toSection 11.3, the Company and its Subsidiaries has (a) good and marketable title to all its owned, and valid leasehold interests in all its leased, real property and (b) good title to all its owned, and valid leasehold interests in all its leased, personal properties and assets, in each case subject to no Lien.
Section 8.7 Taxes. (a) The Company and each of its Subsidiaries and, to the best knowledge of the Company, any other member (as such term is defined in Treasury Regulations §1.1502-1(b), or any similar provision of state, local or foreign law) of the consolidated, combined or unitary group (if any) of which the Company is or was a member, has timely filed or caused to be timely filed all material tax returns (including, without limitation, information returns) which are required to be filed, and have paid all material taxes (whether or
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not shown to be due and payable on such returns) or on any assessments made against them (other than those being contested in good faith by appropriate proceedings for which adequate reserves (in accordance with GAAP) have been provided on the books of the Company or such Subsidiary, or other member of the consolidated, combined or unitary group, as the case may be), and no tax Liens which violateSection 11.3(a) have been filed. As of the date hereof, the period within which United States federal income taxes may be assessed against the Company and each of its Subsidiaries has expired without further extension or waiver for all taxable years ending on or before December 31, 2002.
(b) The Company does not intend to treat the Loans and the related transactions contemplated hereby as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4).
Section 8.8 ERISA. No Reportable Event has occurred during the immediately preceding six-year period with respect to any Plan that resulted or would be reasonably likely to result in any unpaid liability that would be reasonably likely to have a Material Adverse Effect, and each Plan (other than any Multiemployer Plan or any multiemployer health or welfare plan) has complied and has been administered in compliance with applicable provisions of ERISA and the Code except for such non-compliance that would not be reasonably likely to have a Material Adverse Effect. The amount by which (a) the present value of all accrued benefits under each Single Employer Plan maintained by the Company or any Commonly Controlled Entity (based on then current assumptions used to fund such Plan, except that the liability discount rate shall instead be the reasonable expected long term rate of return on plan assets used in the Company’s annual audited financial statements), as of the last annual valuation date applicable thereto (except with regard to the long term rate of return on plan assets, such rate used in the Company’s annual audited financial statements for the Company’s last fiscal year ending on or before such valuation date), exceeds (b) the value of the assets of each such Plan allocable to such benefits, in the aggregate for all such Plans as to which such present value of accrued benefits exceeds the value of its assets (the “Unfunded Pension Amount”), when aggregated with the Potential Withdrawal Liability (as hereinafter defined), is less than $70,000,000. Neither the Company nor any Commonly Controlled Entity has during the immediately preceding six-year period had a complete or partial withdrawal from any Multiemployer Plan that resulted or would be reasonably likely to result in any unpaid withdrawal liability under Section 4201 of ERISA that would be reasonably likely to have a Material Adverse Effect. The “Potential Withdrawal Liability” shall mean the withdrawal liability under Section 4201 of ERISA to which the Company or any Commonly Controlled Entity would become subject under ERISA if the Company or any Commonly Controlled Entity were to withdraw completely from all Multiemployer Plans as of the most recent valuation date applicable thereto. Neither the Company nor any Commonly Controlled Entity has received notice that any Multiemployer Plan is in Reorganization or Insolvent where such Reorganization or Insolvency has resulted, or would be reasonably likely to result in an unpaid liability that would be reasonably likely to have a Material Adverse Effect nor, to the best knowledge of the Company, is any such Reorganization or Insolvency reasonably likely to occur.
Section 8.9 Financial Condition. The audited consolidated balance sheets of the Company and its Subsidiaries as at December 31, 2003, December 31, 2004 and December 31, 2005 and the related audited consolidated statements of operations and stockholders’ equity and cash flows for the fiscal years ended on such dates and the notes thereto present fairly the consolidated financial condition of the Company and its Subsidiaries as of such dates, and the consolidated results of their operations and cash flows for the fiscal years then ended. The unaudited consolidated condensed balance sheet of the Company and its Subsidiaries as at
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September 30, 2006 and the related unaudited consolidated condensed statements of operations and stockholders’ equity and cash flows for the period ended on such date and the notes thereto present fairly the consolidated financial condition of the Company and its Subsidiaries as of such date, and the consolidated results of their operations and cash flows for the period then ended (subject to normal year-end audit adjustments and the absence of footnotes). All such financial statements, have been prepared in accordance with GAAP (subject, in the case of the interim financial statements, to normal year-end audit adjustments and the absence of footnotes) applied consistently throughout the periods presented except as disclosed in such financial statements and the notes thereto. Neither the Company nor any of its Subsidiaries has any material Contingent Obligation or any material obligation, liability or commitment, direct or contingent (including, without limitation, any liability for taxes or any material forward or long-term commitment), which is not (A) reflected in the foregoing statements and the notes thereto or (B) permitted to be incurred under this Agreement.
Section 8.10 No Change. Since December 31, 2005, there has been no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of either of (a) Revlon or (b) the Company and its Subsidiaries taken as a whole (it being understood that nothing set forth in the Form 10-Q’s of the Company for the fiscal quarters ended March 31, 2006, June 30, 2006 and September 30, 2006 filed with the SEC or the Form 8-K’s of the Company filed with or furnished to the SEC prior to the date hereof during fiscal year 2006 constitutes, either individually or in the aggregate, such a material adverse change).
Section 8.11 Federal Regulations. Neither the Company nor any of its Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors of the Federal Reserve System. No part of the proceeds of the Loans or other extensions of credit hereunder will be used for any purpose which violates the provisions of Regulation U or X of such Board of Governors. In the event that any part of the proceeds of the extensions of credit hereunder are used to “purchase” or “carry” any such “margin stock,” the Company will (and will cause its Subsidiaries to) provide such documents and information (including, without limitation, duly completed and executed originals of Federal Reserve Form G-3 or U-1) to the Administrative Agent and the Lenders as the Administrative Agent reasonably may request in order to evidence that the representations and warranties contained in thisSection 8.11 remain true and correct in all material respects.
Section 8.12 Investment Company Act; PUHCA. None of Revlon, the Company or any Subsidiary of the Company is (a) an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as each such term is defined and used in the Investment Company Act of 1940, as amended, or (b) a “holding company” or an “affiliate”, a “holding company” or a “subsidiary company” of a “holding company”, as each such term is defined and used in the Public Utility Holding Company Act of 2005, 42 U.S.C. §§ 16457et seq., as amended.
Section 8.13 Company Information; Matters Relating to Subsidiaries.
(a) Schedule 8.13(a)sets forth as of the Closing Date the name, address of principal place of business and taxpayer identification number of the Company.
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(b) Set forth inSchedule 8.13(b) is a complete and accurate list showing all Subsidiaries of Revlon and the Company as of the date of this Agreement and, as to each such Subsidiary, the jurisdiction of its organization, the percentage of the outstanding shares of stock owned (directly or indirectly) by the Company and the direct parent thereof.
Section 8.14 Mortgages. Each Mortgage is effective to grant a legal, valid and enforceable mortgage lien on all of the mortgagor’s right, title and interest in the Mortgaged Property thereunder. When each Mortgage is duly recorded in the appropriate county office or offices and the mortgage recording fees and taxes in respect thereof are paid and compliance is otherwise had with the formal requirements of state law applicable to the recording of real estate mortgages generally, such Mortgage shall constitute a fully perfected, second-priority lien on and security interest in such Mortgaged Property, subject only to Customary Permitted Liens, Liens securing the Multi-Currency Payment Obligations and Designated Eligible Obligations as provided in the Intercreditor Agreement and such Liens, defects and encumbrances as may be approved by the Designated Administrative Agent and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
Section 8.15 Solvency. (a) The aggregate value of all of the assets of the Company on a consolidated and an unconsolidated basis, at a fair valuation, exceeds the total liabilities of the Company on a consolidated and an unconsolidated basis (including contingent, subordinated, unmatured and unliquidated liabilities). The Company has the ability to pay its debts as they mature and it does not have unreasonably small capital with which to conduct its business. For purposes of thisSection 8.15, the “fair valuation” of such assets shall be determined on the basis of that amount which may be realized within a reasonable time, in any manner through realization of the value of or dispositions of such assets at the regular market value, conceiving the latter as the amount which could be obtained for the property in question within such period by a capable and diligent business person from an interested buyer who is willing to purchase under ordinary selling conditions.
(b) The Company is in compliance with all material Requirements of Law applicable to it with respect to capitalization and, to the knowledge of the Company, has sufficient capital with which to conduct its business in accordance with past practice.
Section 8.16 Environmental Matters. (a) Except as set forth inSchedule 8.16hereto, and except to the extent provided inclause (b) below:
(i) the Mortgaged Properties do not contain any Hazardous Materials in concentrations which violate any applicable Environmental Laws governing the use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal of Hazardous Materials;
(ii) the Mortgaged Properties are in compliance with all Environmental Laws, including all applicable federal, state and local standards and requirements regarding the generation, treatment, storage, handling, use or disposal of Hazardous Materials at the Mortgaged Properties and there is no Hazardous Materials contamination which could materially interfere with the continued operation of the Mortgaged Properties or materially impair the fair saleable value thereof;
(iii) none of the Company or any Subsidiary of the Company has received, or is aware of, any existing or contemplated notice of violation or potential liability by any
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regulatory agency or Person regarding environmental control matters or permit compliance with regard to the Mortgaged Properties;
(iv) Hazardous Materials have not been transferred from the Mortgaged Properties to any other location in violation of any applicable Environmental Laws and the Company has not received notice of any potential liability associated with such transferred materials; and
(v) there are no administrative actions or judicial proceedings by a Governmental Authority or other Person pending or contemplated under any applicable Environmental Laws to which the Company, any Subsidiary of the Company or any mortgagor is or will be named as a party with respect to the Mortgaged Properties.
(b) Each of the representations and warranties set forth inSection 8.16(a) are true and correct with respect to each parcel of real property owned or operated by the Company or any of its Subsidiaries, except to the extent that individually or in the aggregate with all items set forth onSchedule 8.16 and the facts and circumstances giving rise to any such failure to be so true and correct would not be reasonably likely to have a Material Adverse Effect.
(c) The Company and any Subsidiary of the Company is in compliance with Environmental Laws and is not aware of any facts, circumstances or conditions relating to the Company, any Subsidiary of the Company or any real property currently or formerly owned, operated or leased by the Company or any Subsidiary of the Company that would result in the Company or any Subsidiary incurring liability under Environmental Laws, except for such noncompliance or liability which individually or in the aggregate would not be reasonably likely to have a Material Adverse Effect.
Section 8.17 Models. (a) The financial models andproforma financial statements referenced inSection 9.1(j), together with any notes thereto, were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable in light of conditions existing at the time of delivery of such models andproforma financial statements, and represented, at the time of delivery, the Company’s best estimate of its future financial performance.
(b) After giving effect to the transactions contemplated by this Agreement, the Company and its Subsidiaries will have recorded assets and liabilities substantially similar to the recorded assets and liabilities contemplated for such date by the pro forma balance sheet referenced inSection 9.1(j).
(c) The financial models (if any) relating to the Company and provided to each Lender pursuant toSection 10.1(b), together with any notes thereto, were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable in light of conditions existing at the time of delivery of such models and represented, at the time of delivery, the Company’s best estimate of its future financial performance.
Section 8.18 Disclosure. No information, schedule, exhibit or report or other document furnished by the Company, its Subsidiaries or Affiliates to any Agent or any Lender in connection with the negotiation of this Agreement and the Security Documents or pursuant to the terms of this Agreement and the Security Documents, as such information, schedule, exhibit or report or other document has been amended, supplemented or superseded by any other information, schedule, exhibit or report or other document later delivered to the same parties
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receiving such information, schedule, exhibit or report or other document, contained any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statements contained therein, in light of the circumstances when made, not materially misleading.
Section 8.19 Senior Indebtedness. The Payment Obligations of the Company constitute “Senior Debt” (or any analogous term) for purposes of the Subordinated Notes and any Indebtedness issued pursuant toSection 11.2(b)(vi)(A), the Net Proceeds of which are used to refinance Indebtedness under the Subordinated Notes Indenture.
Section 8.20 Regulation H. No Mortgaged Property is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968.
Section 8.21 Affiliate Obligations. Other than trade payables, other Indebtedness in the ordinary course of business or any interest payable from time to time in respect of and in accordance with the terms of any such Indebtedness, no Indebtedness is owing to the Company or any of its Subsidiaries from the Affiliates of the Company on the Closing Date, other than amounts permitted pursuant toSection 11.8(f).
Section 8.22 Indebtedness Owing to Affiliates. No Affiliate of the Company (other than officers and directors of the Company and its Subsidiaries) holds any Indebtedness of the Company or any of its Subsidiaries (not including (i) any trade credit in the ordinary course of business, (ii) any Capital Contribution Note, (iii) any Indebtedness in respect of the M&F Loans, (iv) any Indebtedness permitted underSection 11.2(o) or (v) any Indebtedness of the Company or any of its Subsidiaries of a class that is publicly held or issued pursuant to a Rule 144A offering, including Indebtedness issued under an Indenture), except to the extent that such Affiliate has duly executed and delivered to the Administrative Agent an Affiliate Subordination Letter which remains in full force and effect.
ARTICLE II
CONDITIONS PRECEDENT
Section 9.1 Conditions to Extensions of Credit. The agreement of the Lenders to make the extensions of credit requested to be made by it hereunder and the effectiveness of this Agreement shall be subject to the satisfaction or waiver by such Lender (except to the extent set forth inSection 10.16) of the following conditions precedent (the date on which such conditions are satisfied or waived being herein called the “Closing Date”):
(a) Execution of Agreement. This Agreement shall have become binding upon the parties hereto in accordance withSection 14.12.
(b) Notes. The Administrative Agent shall have received for the account of each Lender which has so requested, a Term Loan Note conforming to the requirements hereof and executed and delivered by a duly authorized officer of the Company.
(c) Guaranty; Pledge and Security Agreement. The Administrative Agent shall have received the Guaranty, duly executed by each Guarantor and the Pledge and Security Agreement, duly executed by the Company and each Guarantor, together with each of the following:
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(i) evidence satisfactory to the Administrative Agent that, upon the filing and recording of instruments delivered on the Closing Date, the Collateral Agent (for the benefit of the Secured Parties) shall have a valid and perfected security interest in the Collateral, including such documents duly executed by each Loan Party as the Administrative Agent may request with respect to the perfection of the Collateral Agent’s security interests in the Collateral (including financing statements under the UCC, patent, trademark and copyright security agreements suitable for filing with the U.S. Patent and Trademark Office or the U.S. Copyright Office, as the case may be, and other applicable documents under the laws of the United States and the United Kingdom and any political subdivision thereof with respect to the perfection of Liens created by the Pledge and Security Agreement);
(ii) all certificates, instruments and other documents representing all Pledged Stock being pledged pursuant to such Pledge and Security Agreement and stock powers for such certificates, instruments and other documents executed in blank;
(iii) all instruments representing Pledged Debt Instruments being pledged pursuant to such Pledge and Security Agreement duly endorsed in favor of the Collateral Agent or in blank; and
(iv) all Deposit Account Control Agreements, duly executed by the corresponding Deposit Account Bank and Loan Party, that, in the reasonable judgment of the Administrative Agent, shall be required for the Loan Parties to comply withSection 10.19.
(d) Mortgages. The Administrative Agent shall have received (i) Mortgages for the Real Property identified onSchedule 9.1(d) in form and substance reasonably satisfactory to the Administrative Agent, duly executed and delivered by a duly authorized officer of the Company, and (ii) all Mortgage Supporting Documents relating thereto.
(e) Lien Searches. The Administrative Agent shall have received the results of Lien searches as of a recent date, conducted by a search service reasonably satisfactory to the Administrative Agent, and the Administrative Agent shall be satisfied that no Liens are outstanding on the property or assets of any Loan Party, other than any such Liens (i) which are permitted pursuant to the terms of the Loan Documents or (ii) as to which the Administrative Agent have received documentation reasonably satisfactory to it evidencing the termination or concurrent termination of such Liens.
(f) Corporate Proceedings. The Administrative Agent shall have received (a) certified copies of the Charter and by-laws (or analogous organizational documents) of the Company and each Loan Party and (b) the resolutions (or analogous authorizations), in form and substance reasonably satisfactory to the Administrative Agent, of the Board of Directors of the Company and each Loan Party, authorizing in each case the execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which the Company or such Loan Party is a party, in each case certified by the Secretary or an Assistant Secretary of the Company or such Loan Party as of the Closing Date and each such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate.
(g) Incumbency Certificates. The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary (or analogous officer) of the Company and
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each Loan Party dated the Closing Date, as to the incumbency and signature of the officers of the Company and such Loan Party executing each of this Agreement, the Notes and each other Loan Document to which the Company and such Loan Party is a party, and any certificate or other documents to be delivered by it pursuant thereto, together with evidence of the incumbency of such Secretary or Assistant Secretary as the case may be.
(h) Certain Legal Opinions. The Administrative Agent shall have received executed legal opinions of:
(i) Paul, Weiss, Rifkind, Wharton & Garrison LLP, as counsel to the Company, substantially in the form ofExhibit L-1;
(ii) the Executive Vice President, Chief Legal Officer and General Counsel of the Company, substantially in the form ofExhibit L-2;
(iii) Weil, Gotshal & Manages LLP, as counsel to the Administrative Agent, substantially in the form ofExhibit L-3; and
(iv) each of the domestic local counsel listed onSchedule 9.1(h)(iv), in form and substance reasonably acceptable to the Administrative Agent.
Each of the foregoing legal opinions shall be accompanied by copies of the legal opinions, if any, upon which such counsel rely, and in each case shall contain such changes thereto as may be approved by, and as shall otherwise be in form and substance reasonably satisfactory to, the Administrative Agent and shall cover such other matters incident to the transactions contemplated by the Loan Documents as the Administrative Agent may reasonably require. Each of the counsel delivering the foregoing legal opinions is expressly instructed to deliver its opinion for the benefit of each of the Administrative Agent, the Collateral Agent and each Lender.
(i) Fees. The Administrative Agent shall have received or shall concurrently receive, for the accounts of the Lenders, each Agent and the Arranger, all accrued fees and expenses owing hereunder or in connection herewith to such Persons (including, without limitation, accrued fees and disbursements of primary counsel, local counsel and special counsel to the Administrative Agent and the Collateral Agent), to the extent that such fees and expenses have been presented for payment a reasonable time prior to the Closing Date.
(j) Financial Models. The Administrative Agent shall have received consolidated financial models prepared by the Company’s management (including, without limitation, projections on a quarterly basis for the first twelve months after the Closing Date and an annual basis thereafter through the Company’s 2011 fiscal year) andproforma financial statements relating to the Company and its Subsidiaries (which financial models andproforma consolidated financial statements shall be in form and substance reasonably satisfactory to the Administrative Agent), certified by a Responsible Officer of the Company as (i) being the financial models andproforma financial statements referenced inSection 8.17(a) and (ii) having been delivered to each Lender prior to the date of execution by such Lender of this Agreement.
(k) Financial Statements. The Administrative Agent shall have received copies of the financial statements referenced inSection 8.9.
(l) Compliance with Indentures. The making of the extensions of credit hereunder and the granting of the Liens under the Security Documents shall not violate any
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provisions of the Indentures, and the Administrative Agent shall have received a certificate of a Responsible Officer of the Company (which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent) certifying that the transactions contemplated hereby do not necessitate the sharing (on an equal and ratable basis or otherwise) of collateral security granted pursuant to the Security Documents with any trustee or holder of Indebtedness under the Indentures.
(m) Additional Matters. All corporate and other proceedings, and all documents, instruments and other legal, diligence and financial matters in connection with the transactions contemplated by the Loan Documents shall be reasonably satisfactory in form and substance to the Administrative Agent and its counsel.
(n) Intercreditor Agreement. The Administrative Agent shall have received the Intercreditor Agreement, duly executed and delivered by duly authorized officers of each of the parties thereto.
(o) Solvency Certificate. The Administrative Agent shall have received a solvency certificate, in the form attached hereto asExhibit R from the Chief Financial Officer of the Company.
(p) USA Patriot Act. Each of the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information required by the applicable Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”).
(q) Term Loans Outstanding under the Existing Credit Agreement. (i) All obligations (including interest and principal, fees and expenses) in respect of the term loans under the Existing Credit Agreement shall have been repaid in full, and (ii) the Effective Date (as defined in Amendment No. 4 to the Existing Credit Agreement) has occurred.
(r) Debt Rating Condition. The Term Loan Facility shall be rated by S&P and by Moody’s, both of which ratings shall remain in effect on the Closing Date.
(s) Insurance. The Administrative Agent shall have received evidence reasonably satisfactory to them that the insurance policies required bySection 10.5 and any Collateral Document are in full force and effect, together with endorsements naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or loss payee under all insurance policies to be maintained with respect to the properties of the Company and its Subsidiaries.
(t) Representations and Warranties. Each of the representations and warranties made by each party to each Loan Document in or pursuant to this Agreement or any other Loan Document, or contained in any certificate or financial statement (other than estimates and projections which are (x) identified as such and (y) contained in any financial statement) furnished at any time under or in connection with this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date (except to the extent that such representations and warranties relate to a particular date, in which case such representations and warranties shall be true and correct in all material respects on and as of such date), both before and after giving effect to the Loans, and the use of the proceeds thereof.
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all such financial statements to be prepared in reasonable detail and (except as approved by such accountants or Responsible Officer, as the case may be, and disclosed therein) in accordance with
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GAAP applied consistently throughout the periods reflected therein (subject, in the case of interim periods, to normal year-end adjustments and the absence of notes).
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Security Agreement and, if applicable, the other Security Documents, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) In the event that there shall be a change in law that eliminates the adverse tax consequences to the Company or any of its Subsidiaries that would have resulted on the date
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hereof (so that such consequences, if any, are immaterial) from the pledge of 66-2/3% or more of the Voting Stock of any Foreign Subsidiary, the Company will, and will cause each of its Subsidiaries to, (i) pledge such additional amount of shares of such Voting Stock (with respect to each Foreign Subsidiary the Voting Stock of which then is pledged hereunder) and (ii) notwithstanding the provisions ofSection 10.11(b), pledge the maximum amount of shares of such Voting Stock (with respect to each Foreign Subsidiary the Voting Stock of which is pledged thereafter), in each case which can be so pledged without the incurrence of adverse tax consequences and take or cause to be taken such further action as the Administrative Agent may reasonably request (including, without limitation, the delivery of legal opinions) in order to perfect its security interest in such stock.
Section 10.14 Intellectual Property.(a) The Company will, and will cause each of the Subsidiary Guarantors to, take such action as is necessary (or as otherwise is reasonably requested by the Administrative Agent) in order to grant to the Collateral Agent a first priority, perfected security interest in any copyright registration in which the Company or any of the Subsidiary Guarantors may from time to time obtain any interest.The Company will submit, and will cause each Subsidiary Guarantor to submit, to the Administrative Agent, by each January 31st and July 31st of each year following the Closing Date, commencing January 31, 2007 (or, if the Administrative Agent reasonably so requests in writing, more often;provided,however, that, except during such time as a Default or Event of Default has occurred and is continuing, the Administrative Agent shall not so request more frequently than monthly), a Copyright Security
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Agreement (substantially in the form attached to the Pledge and Security Agreement or such other form reasonably acceptable to the Administrative Agent) confirming the security interest of the Collateral Agent in any Copyright acquired or with respect to which the Company or any Subsidiary Guarantor filed an application for copyright registration during the two prior calendar quarters, duly executed and in proper form for recordation in the United States Copyright Office.
The Company will, and will cause each Subsidiary Guarantor to, use its respective commercially reasonable best efforts to comply with all requirements of the Lanham Act and the rules and regulations thereunder, as from time to time in effect, or other applicable law necessary in order to validly register and maintain the registration of any such Significant Trademark with the United States Patent and Trademark Office, except as permitted pursuant toSections 10.4, 11.5 and 11.6 hereof. The Company will submit, and will cause each Subsidiary Guarantor to submit, to the Administrative Agent, by each January 31st and July 31st of each year following the Closing Date, commencing January 31, 2007 (or, if the Administrative Agent reasonably so requests in writing, more often;provided,however, that, except during such time as a Default or Event of Default has occurred and is continuing, the Administrative Agent shall not so request more frequently than monthly), a Trademark Security Agreement (substantially in the form attached to the Pledge and Security Agreement or such other form reasonably acceptable to the Administrative Agent) confirming the security interest of the Collateral Agent in any Trademark acquired or with respect to which the Company or any Subsidiary Guarantor filed an application for trademark registration during the two prior calendar quarters, duly executed and in proper form for recordation in the United States Patent and Trademark Office.
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(d) Notwithstanding anything to the contrary contained in thisSection 10.14, the Company and its Subsidiaries shall have the right to license their respective Patents and Trademarks to third parties on an arms’ length basis;provided,however, that, except with respect to Trademarks and Patents which constitute Disposition Assets or with respect to which the only substantial use by the Company and its Subsidiaries is in connection with a business constituting a Disposition Asset, that any such license of (i) a Trademark shall be for use with respect to products which are not reasonably likely to be competitive with those produced and/or marketed by the Company and its Subsidiaries and (ii) a Patent shall be for applications which would not be reasonably likely to diminish the value of any product line of the Company and its Subsidiaries, except for, in the case of each ofclause (i) and(ii), licenses or cross-licenses granted by the Company or any such Subsidiary in connection with the settlement or other disposition of litigation or other disputes with respect to Patents or Trademarks,provided,however, that such licenses or cross-licenses shall be granted (x) in the reasonable business judgment of the Company or any such Subsidiary, or (y) as may be required by any Governmental Authority having jurisdiction over any such litigation or dispute. The Administrative Agent and each Lender hereby acknowledges and agrees that any security interest held by the Collateral Agent in any Patent or Trademark which is licensed in accordance with the provisions of thisSection
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10.14(d) shall be subordinate to such license agreement and each Lender hereby instructs the Administrative Agent to execute and deliver such instruments, documents and agreements as the Company reasonably may request in order to confirm such subordination.
(b) The Administrative Agent may establish one or more Cash Collateral Accounts with such depositaries and Securities Intermediaries as it in its sole discretion shall determine to the extent expressly contemplated in any Loan Document and shall (or direct the Collateral Agent to) apply the all funds on deposit in such Cash Collateral Account as so contemplated. Funds on deposit in any Cash Collateral Account may be invested (but the Administrative Agent shall be under no obligation to make any such investment) in Cash Equivalents at the direction of the Administrative Agent and, except during the continuance of an Event of Default, the Administrative Agent agrees with the Company to direct the Collateral Agent to issue Entitlement Orders for such investments in Cash Equivalents as requested by the
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Company;provided,however, that neither Administrative Agent nor the Collateral Agent shall have any responsibility for, or bear any risk of loss of, any such investment or income thereon.
Period | Senior Secured Leverage Ratio |
December 31, 2006 through September 30, 2008 | 5.50 to 1.00 |
December 31, 2008 and each fiscal quarter thereafter | 5.00 to 1.00 |
(b) Indebtedness under the Senior Notes Indenture in respect of the Existing Senior Notes and Indebtedness under the Subordinated Notes Indenture, and any Indebtedness resulting from the refinancing of any such Indebtedness, or the refinancing of any of the Term Loans in whole or in part (subject to the payment of any applicable Prepayment Fee);provided,however, that (i) the primary obligor with respect to any such refinancing Indebtedness is the same as the primary obligor on the Indebtedness refinanced thereby and (except in the case of any Permitted Third Lien Financing) any contingent obligor of such refinancing Indebtedness was or would have been required to be a contingent obligor of the Indebtedness refinanced thereby (except to the extent that such primary obligor and/or contingent obligor may be substituted by a new primary obligor or contingent obligor, as the case may be, which has no material assets other than assets which, immediately prior to such substitution, constituted the assets of the original primary obligor and/or contingent obligor), (ii) the principal amount of any such refinancing Indebtedness (as determined as of the date of the incurrence of such refinancing Indebtedness in accordance with GAAP) does not exceed the principal amount of the Indebtedness refinanced thereby together with any premium actually paid thereon and reasonable costs and expenses (including underwriting discounts) incurred in connection with such refinancing Indebtedness, (iii) the interest rate applicable to such refinancing Indebtedness shall not be less favorable to the obligor than it would obtain in an arm’s length transaction with a Person that is not an Affiliate thereof and shall reflect the prevailing market conditions at the time of such refinancing, (iv) such refinancing Indebtedness does not have any scheduled installments of principal thereof due prior
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to the date that is six months after the Term Loan Maturity Date, (v) with respect to each issue of refinancing Indebtedness in excess of $5,000,000 (or, with respect to any other currency, the Equivalent thereof) in the aggregate, either (A) the covenants, defaults and similar provisions applicable to such refinancing Indebtedness or obligations are no more restrictive, taken as a whole, than the provisions contained in and otherwise consistent with market terms of agreements governing comparable Indebtedness of similar companies in the high yield market at the time of such refinancing and do not conflict with the provisions of this Agreement, provided, that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence of such refinancing Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement and the requirement underclause (iii) above unless the Administrative Agent notifies the Company within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees), or (B) such refinancing Indebtedness is otherwise upon terms and subject to definitive documentation which is in form and substance reasonably satisfactory to the Administrative Agent, (vi) if the Indebtedness being refinanced is Indebtedness under the Subordinated Notes Indenture, such refinancing Indebtedness shall be (A) subordinated to the Payment Obligations on terms that are reasonably satisfactory to the Administrative Agent (it being understood that subordination terms substantially similar to those applicable to the Subordinated Notes are deemed to be satisfactory) or (B) pursuant to a Permitted Third Lien Financing and (vii) such refinancing Indebtedness shall be unsecured unless pursuant to a Permitted Third Lien Financing.
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(k) Indebtedness of any Foreign Subsidiary or a foreign branch of a Domestic Subsidiary principally doing business outside of the United States to any Person (other than an Affiliate of the Company), in an aggregate principal amount at any one time outstanding not to exceed $50,000,000 (or with respect to any other currency, the Equivalent in Dollars thereof);provided,however, that, such Indebtedness (i) is not guaranteed by the Company (except to the extent that the Lien permitted bySection 11.3(m), in itself, constitutes a guarantee) and (ii) is either offset or secured by a counterpart deposit, compensating balance or a pledge of cash
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deposit;provided,further, that such counterpart deposit, compensating balance or cash deposit pledge does not constitute Collateral (as defined in any Security Document) or any of the Unpledged International Property;
(q) Indebtedness under the Existing Credit Agreement, any Facilities Increase (as defined in the Existing Credit Agreement) and any Indebtedness resulting from the refinancing of such Indebtedness;provided,however, that (i) the aggregateprincipal amount of any Indebtedness permitted under this clause (q)at any time outstanding shall not exceed $210,000,000, (ii) the primary obligor with respect to any such refinancing Indebtedness is the same as the primary obligor on the Indebtedness refinanced thereby and any contingent obligor of such refinancing Indebtedness was or would have been required to be a contingent obligor of the Indebtedness refinanced thereby, (iii) the interest rate applicable to such refinancing Indebtedness shall not be less favorable to the obligor than it would obtain in an arm’s length transaction with a Person that is not an Affiliate thereof and shall reflect the prevailing market conditions at the time of such refinancing, (iv) such refinancing Indebtedness does not have a final maturity prior to the Term Loan Maturity Date, (v) the covenants, defaults and similar provisions applicable to such refinancing Indebtedness or obligations are no more restrictive, taken as a whole, than the provisions contained in the credit agreement referred to inclause (i)of the definition of “Existing Credit Agreement” and do not conflict with the provisions of this Agreement,provided, that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence of such refinancing Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirement and the requirement inclause (iii) above
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shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Company within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees),and (vi) such refinancing indebtedness is subject to an intercreditor agreement on termsreasonablysatisfactory to the Administrative Agent (it being understood that terms substantially similar to those applicable to the Existing Credit Agreement under the Intercreditor Agreement are deemed to be satisfactory);
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Payment Obligations or any refinancings thereof permitted bySection 11.2(q), or Designated Eligible Obligations as provided for in the Intercreditor Agreement;
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(e) during such time as no Specified Default or Event of Default has occurred and is continuing (or would result therefrom), sales, transfers and other dispositions of
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assets of the Company and its Subsidiaries to Permitted Joint Ventures in accordance with the provisions of Section 11.8;
(iii) Restricted Payments made from time to time to finance Revlon’s purchase, redemption, acquisition or retirement for value of, or payment of amounts owing in respect of, any shares, interests, rights to purchase, warrants, options, participations, stock appreciation rights, performance units or other equivalents or interests in the equity of Revlon held by any current or former director, officer, consultant or employee of Revlon, the Company or any Subsidiary of the Company in such person’s role as a director, officer, consultant or employee (or by their estates or any beneficiaries of their estates);provided,however, that (x) the sum of (1) the aggregate amount of Restricted Payments made pursuant to thisclause (iii) and (2) the aggregate amount of open-market purchases of common stock and restricted stock of Revlon together with any
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other investments made as permitted underSection 11.8(g), does not exceed $8,000,000 in any calendar year (including calendar year 2006) and (y) amounts available pursuant to thisclause (iii)to be utilized for Restricted Payments during any calendar year which are not utilized during such year may be carried forward and utilized in any succeeding calendar year;
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(j) each of the Company and its Subsidiaries may make or commit to make any advance, loan, extension of credit or capital contribution to, or purchase any Stock or Stock Equivalents, bonds, notes, debentures or other securities of, or make any other investment in, any of the Company (except for any Stock, Stock Equivalents or bonds, notes, debentures or other securities or other Indebtedness, other than intercompany Indebtedness incurred in the ordinary course of business, of the Company) or any Subsidiary (each an “Intercompany Investment”);provided,however, that with respect to any Intercompany Investment made after the date hereof by the Company or any Domestic Subsidiary in any Subsidiary that is not a Guarantor, (i) such Intercompany Investment shall only be made in the ordinary course of business or consistent with past practice, (ii) if such Intercompany Investment is made in cash as an advance, loan or other extension of credit, such Intercompany Investment shall be evidenced by an intercompany note which, in the case of any such note held by the Company or any Subsidiary Guarantor, shall be
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promptly pledged to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the relevant Security Documents and (iii) if such Intercompany Investment is made in cash as a capital contribution, such Intercompany Investment shall only be made in a Foreign Subsidiary (w) in an aggregate amount such that after giving effect thereto, such Foreign Subsidiary (A) is in compliance with all material Requirements of Law applicable to it with respect to capitalization, (B) has sufficient capital with which to conduct its business in accordance with past practice and (C) is not undercapitalized to such an extent that, solely as a result of such undercapitalization, any creditor of such Foreign Subsidiary would be deemed under the laws of any relevant jurisdiction to owe a fiduciary duty to any other creditor of such Foreign Subsidiary, (x) to the extent that on the date of such contribution, the cash contributed to the capital of the applicable Foreign Subsidiary, if loaned or advanced through an intercompany loan evidenced by a note, would either (A) not cause the Company or the Domestic Subsidiary of the Company acquiring such note to be deemed to be doing business in any jurisdiction outside of the United States or otherwise subject to taxation or regulation in such jurisdiction or (B) not require the Foreign Subsidiary issuing such note to withhold from any payment made in respect thereof any amount now or hereafter imposed, levied, collected or assessed by any relevant jurisdiction, or any political subdivision or taxing authority thereof or therein, (y) in connection with any sale, transfer or other disposition of capital stock or other equity interests or assets of such Foreign Subsidiary permitted hereunder, to the extent that the aggregate amount of such capital contribution does not exceed the aggregate amount outstanding of any Indebtedness and other obligations of such Foreign Subsidiary owing to the Company or any of its Domestic Subsidiaries that was in each case created or otherwise incurred on or prior to the date of such sale, transfer or other disposition and which Indebtedness and other obligations are outstanding immediately prior to such sale, transfer or other disposition or (z)in connection with the formation or organization of such Foreign Subsidiary, to the extent that the amounts expended after the date hereof pursuant to thisSection 11.8(j)(iii)(z) plus amounts expended after the date hereof pursuant toSection 11.8(e) plus Contingent Obligations incurredafter the date hereof pursuant toSection 11.4(f) by virtue ofSection 11.8(e) do not exceed $50,000,000 at any one time outstanding; and
(a) amend, waive, supplement or otherwise modify in any material respect (including without limitation, amendments of the interest rate or payment terms thereof) (i) any Indenture or any agreement governing the Subordinated Notes or any agreement governing any refinancing Indebtedness of the Indentures or the Term Loans incurred pursuant toSection 11.2(b), if the proposed amendment, waiver or supplement is adverse to the Lenders, (ii) any agreement governing the M&F Loans on terms and conditions (taken as whole) unless such amendment, waiver, supplement or modification is no less favorable to the Company or the
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Lenders than the terms and conditions of the M&F Loans as in effect on the Closing Date (taken as a whole), (iii) any Indebtedness permitted pursuant toSection 11.2(o), if the proposed amendment, waiver or supplement is adverse to the Lenders or (iv) any other Indebtedness not permitted pursuant to the terms of this Agreement as in effect on the date hereof but entered into with the consent of the Required Lenders, if the proposed amendment, waiver or supplement is adverse to the Lenders;
Section 11.10 Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, (a) engage in any transaction with any Affiliate of the Company, except upon terms no less favorable to the Company or such Subsidiary, as the case may be, than it would obtain in a comparable arm’s length transaction with a Person not an Affiliate, or (b) sell, transfer, convey, assign or otherwise dispose of any material asset to any Affiliate of the Company;provided,however, that nothing contained in thisSection 11.10 shall
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prohibit (x) the Company from making Restricted Payments permitted bySection 11.7, (y) the Company or any of its Subsidiaries from engaging in any transaction pursuant to and in accordance with the Occupancy Agreement, dated as of June 1, 2001, between M&FG and the Company, as amended by Amendments thereto dated as of October 14, 2003 and June 14, 2004 and (z) payments required to be made by the Company with respect to its obligations under the Company Tax Sharing Agreement.
Section 11.14 Amendment of Company Tax Sharing Agreement. The Company will not, and will not permit any of its Subsidiaries to, amend, modify, change, waive, cancel or terminate any term or condition of the Company Tax Sharing Agreement in a manner adverse to the interests of the Company or the Lenders without the prior written consent of the Required Lenders.
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(j) Commencement of Bankruptcy or Reorganization Proceeding. (i) Revlon, the Company or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, wind-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets; or, (ii) there shall be
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commenced against Revlon, the Company or any of its Subsidiaries any such case, proceeding or other action referred to inclause (i) of thisparagraph (j) which results in the entry of an order for relief or any such adjudication or appointment remains undismissed, undischarged or unbonded for a period of 60 days;provided,however, that the Company, for itself and as agent for each of its Subsidiaries, hereby expressly authorizes each Agent and each Lender to appear in any court conducting any such case, proceeding or other action during such 60-day period to preserve, protect and defend their rights under the Loan Documents; or (iii) there shall be commenced against Revlon, the Company or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) Revlon, the Company or any of its Subsidiaries shall take any action authorizing, or in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth above in thisparagraph (j); or (v) Revlon, the Company or any of its Subsidiaries shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(l) ERISA. (i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or, for years for which funding requirements are governed by the Pension Protection Act of 2006, any failure to satisfy the applicable minimum funding standard under Section 412(a)(2) of the Code, whether or not waived, shall exist with respect to any Plan, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Company or any Commonly Controlled Entity of the Company shall, or in the reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist, with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all
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other such events or conditions, if any, would be reasonably likely to have a Material Adverse Effect; or
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(a) Notwithstanding anything to the contrary contained inSection 12.1(c)(ii), in the event that the Company fails to comply with the requirements of the covenant set forth inSection 11.1 for any period, at any time on or before the tenth day after the date of delivery of a Notice of Intent to Cure by the Company to the Administrative Agent pursuant toSection 10.2(b), the Company shall have the right (the “Cure Right”) to issue Permitted Cure Securities to Revlon
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for cash or otherwise receive Capital Contributions in cash from Revlon, and upon the receipt by the Company of such cash (the “Cure Amount”), the covenant set forth inSection 11.1 shall be recalculated, giving effect to a pro forma increase to EBITDA in accordance with the definition thereof forthe fiscal quarter for which such Cure Right was exercised in an amount equal to such Cure Amount (and such increase shall be included in each period that includes such fiscal quarter);provided,however, that such pro forma adjustment to EBITDA shall be given solely for the purpose of determining the existence of a Default or an Event of Default under the covenant set forth inSection 11.1 with respect to any period that includes the fiscal quarter for which such Cure Right was exercised and not for any other purpose under any Loan Document.
(c) As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Agents 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 (i) in the case of the Administrative Agent, the Required Lenders (or, where required by the express terms of this Agreement, a greater proportion of the Lenders), and such instructions shall be binding upon each Lender, and (ii) in the case of the Collateral Agent, as set forth in the Intercreditor Agreement, and such instructions shall be binding upon each Lender (in each case,
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subject to any limitations imposed thereon in the Intercreditor Agreement);provided,however, that no Agent shall be required to take any action that (i) such Agent in good faith believes exposes it to personal liability unless such Agent receives an indemnification satisfactory to it from the applicable Lenders with respect to such action or (ii) is contrary to this Agreement or any Requirement of Law. Each Agent agrees to give to each applicable Lender prompt notice of each notice given to it by any Loan Party pursuant to the terms of this Agreement or the other Loan Documents.
(a) Each of the Lenders and the Company agrees, and the Company shall cause each Subsidiary Guarantor to agree, that the Agents may, but shall not be obligated to,
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make the Approved Electronic Communications available to the Lenders by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Agents to be their electronic transmission system (the “Approved Electronic Platform”).
Section 13.4 The Agents Individually. With respect to its Term Loan Commitment and Loans, the Administrative Agent and the Collateral Agent, each in their individual capacity, shall each have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender. The terms “Lenders”, “Required Lenders”, and any similar terms shall, unless the context clearly otherwise indicates, include, without limitation, the Administrative Agent and the Collateral Agent in its individual capacity as a Lender or as one of the Required Lenders. The
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Administrative Agent or Collateral Agent or any of their respective Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with, the Company and any Loan Party as if such Person were not acting as an Agent.
Section 13.7 Successor Agent. Subject to the terms of thisSection 13.7, the Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent selected from among the Lenders. In either case, such appointment shall be subject to the prior written approval of the Company (which approval may not be unreasonably withheld or delayed and shall not be required upon the occurrence and during the continuance of an Event of Default). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Loan
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Documents. After such resignation, the retiring Administrative Agent shall continue to have the benefit of this Article XIII as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents. If no Lender has accepted appointment as a successor Administrative Agent within 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Required Lenders shall assume and perform all of the duties of the retiring Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. The resignation and removal of the Collateral Agent shall be governed by the Intercreditor Agreement.
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ARTICLE I
MISCELLANEOUS
Section 14.1 Amendments and Waivers.
(a) Except as otherwise expressly provided in this Agreement or the Intercreditor Agreement, the Administrative Agent, on the one hand, and the Company, on the other hand, may from time to time with the prior written consent of the Required Lenders enter into written amendments, supplements or modifications for the purpose of adding, deleting or modifying any provision of any Loan Document or changing in any manner the rights, remedies, obligations and duties of the parties thereto, and with the written consent of the Required Lenders, the Administrative Agent, on behalf of the Lenders, may execute and deliver a written instrument waiving, on such terms and conditions as may be specified in such instrument, any of the requirements applicable to the Loan Parties, as the case may be, party to any Loan Document, or any Default or Event of Default and its consequences;provided,however, that:
(i) without the consent of any Lender, the Company and the Administrative Agent may enter into any amendment necessary to implement the terms of any Term Facility Increase in accordance with the terms of this Agreement (as in effect on the Closing Date);
(ii) (A) no amendment, waiver or consent shall, unless in writing and signed by any Agent in addition to the Lenders required above to take such action, affect the rights or duties of such Agent under this Agreement or the other Loan Documents and (B) no amendment, waiver or consent shall, unless in writing and signed by any Special Purpose Vehicle that has been granted an option pursuant toSection 14.6(f), affect the grant or nature of such option or the right or duties of such Special Purpose Vehicle hereunder;
(iii) no amendment, supplement or modification of, or waiver or consent under, any of the Security Documents to which the Collateral Agent is a party shall be effective unless in writing and signed by the Collateral Agent (at the direction of the Multi-Currency Administrative Agent, the Multi-Currency Lenders, the Administrative Agent or the Lenders, as applicable, pursuant to the Intercreditor Agreement) in addition to the Agents and Lenders required above to take such action; and
(iv) the Administrative Agent may, with the consent of the Company, amend, modify or supplement any Loan Document to cure any ambiguity, typographical error, defect or inconsistency;
provided,further, that, except as otherwise expressly provided in this Agreement or the Intercreditor Agreement, no such waiver, amendment, supplement or modification shall be effective to, without the prior written consent, in addition to the Lenders required above to take such action, of each Lender directly affected thereby:
(v) (A) modify the Term Loan Commitment of such Lender or subject such Lender to any additional obligation, (B) extend any scheduled final maturity of any Loan owing to such Lender, (C) waive or reduce, or postpone or cancel any scheduled date fixed for the payment of (it being understood that any mandatory prepayment required underSection 7.3 does not constitute any scheduled date fixed for payments), principal of
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or interest on any such Loan or any fees owing to such Lender, (D) reduce, or release the Company from its obligations to repay, any other Payment Obligation owed to such Lender or (E) consent to the assignment or transfer by the Company of any of its rights and obligations under this Agreement;
(vi) amend, modify or waive any provision ofSection 7.4 (Application of Payments),Section 7.15 (Pro Rata Treatment and Payments) orSection 14.7 (Adjustments; Set-off);
(vii) expressly subordinate any of the Payment Obligations or Liens securing the Payment Obligations, except in accordance with this Agreement and the Intercreditor Agreement;
(viii) (A) amend, modify or waive thisSection 14.1 or any other provision specifying the Agents, Lenders or group of Lenders required for any amendment, modification or waiver thereof or (B) change the respective percentages specified in the definition of “Required Lenders”; or
(ix) release (A) all or substantially all of the Collateral provided for in the Security Documents, (B) the guarantee obligations of Revlon provided for in any Security Document or (C) the guarantee obligations of all or substantially all of the Guarantors (other than Revlon) provided for in the Security Documents.
(b) Any waiver, amendment, supplement or modification pursuant to thisSection 14.1 shall apply equally to each of the Lenders and shall be binding upon the Lenders and all future holders of any of the Loans, the Notes and all other Payment Obligations. In the case of such waiver, the parties to the Loan Documents, the Lenders, the Collateral Agent and the Administrative Agent shall be restored to their former positions and rights hereunder and under the Notes and the Security Documents, and any Default or any Event of Default waived shall, to the extent provided in such waiver, be deemed to be cured and not continuing; but, no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The Administrative Agent shall, as soon as practicable, furnish a copy of each such amendment, supplement, modification or waiver to each Lender.
(c) To the extent (a) the consent of any Lender in its capacity as a Lender is required, but not obtained (any such Lender whose consent is not obtained as described in thisSection 14.1(c) being referred to as a “Non-Consenting Lender”) in connection with any proposed amendment, modification, supplement or waiver (a “Proposed Change”) and (b) the Administrative Agent shall have consented to such Proposed Change, at the request of the Company and with the consent of the Administrative Agent (in its sole discretion exercised reasonably), any Eligible Assignee reasonably acceptable to the Administrative Agent (which Eligible Assignee may be the Lender acting as the Administrative Agent and shall have consented to such Proposed Change) shall have the right (but not the obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender shall, upon the request of the Administrative Agent, sell and assign to such Eligible Assignee all of the Term Loan Commitments and the Term Loans of such Non-Consenting Lender for an amount equal to the principal balance of all applicable Loans held by such Non-Consenting Lender and all accrued and unpaid interest and fees with respect thereto through the date of such sale and purchase (the “Purchase Amount”);provided,however, that such sale and purchase (and the corresponding assignment) shall not be effective until (A) the Administrative Agent shall have received from such Eligible Assignee an agreement in form and substance satisfactory to the Administrative
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Agent and the Company whereby such Eligible Assignee shall agree to be bound by the terms hereof, (B) such Non-Consenting Lender shall have received the Purchase Amount from such Eligible Assignee and (C) the Company shall have paid such Non-Consenting Lender an amount equal to the Prepayment Fee, if any, on the aggregate outstanding principal amount of all Term Loans subject to such sale and purchase (which sale and purchase shall constitute a prepayment of such Term Loans). Each Lender agrees that, if it becomes a Non-Consenting Lender, it shall execute and deliver to the Administrative Agent (x) an Assignment and Acceptance to evidence such sale and assignment and (y) to the extent the Term Loan Commitments and Loans subject to such Assignment and Acceptance are evidenced by a Note or Notes, such Note or Notes;provided,however, that the failure of any Non-Consenting Lender to execute an Assignment and Acceptance or deliver such Note or Notes shall not render such sale and purchase (and the corresponding assignment) invalid.
Section 14.2 Notices. (a)Addresses for Notices. All notices, demands, requests, consents and other communications provided for in this Agreement or any other Loan Document shall be given in writing, or by any telecommunication device capable of creating a written record (including electronic mail), and addressed to the party to be notified as follows:
| (i) | if to the Company: |
Revlon Consumer Products Corporation
237 Park Avenue
New York, New York 10017
Attention: Vice President, Finance and Treasury
Telecopy: (212) 527-5225
E-Mail Address: manuel.rivero@revlon.com
with a copy (other than of items relating to funding and payments) to:
Revlon Consumer Products Corporation
237 Park Avenue
New York, New York 10017
Attention: Executive Vice President, Chief Legal Officer and General Counsel
Telecopy: (212) 527-5693
E-Mail Address: robert.kretzman@revlon.com
(ii) | if to any Lender, at its lending office specified opposite its name onSchedule I or on the signature page of any applicable Assignment and Acceptance; | |
| (iii) | if to the Administrative Agent: |
Citicorp USA, Inc.
388 Greenwich Street
New York, New York 10013
Attention: James J. McCarthy
Telecopy no: (212) 816-2613
E-Mail Address: james.j.mccarthy@citigroup.com
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with a copy (other than of items relating to funding and payments) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153-0119
Attention: Daniel S. Dokos
Telecopy no: (212) 310-8007
E-Mail Address: daniel.dokos@weil.com
or at such other address as shall be notified in writing (x) in the case of the Company and the Administrative Agent, to the other parties and (y) in the case of all other parties, to the Company and the Administrative Agent.
(b) Effectiveness of Notices. All notices, demands, requests, consents and other communications described inclause (a)above shall be effective (i) if delivered by hand, including any overnight courier service, upon delivery, (ii) if delivered by first class, postage prepaid mail, five days after deposited in the mails, (iii) except to any Loan Party, if delivered by posting to an Approved Electronic Platform, an Internet website or a similar telecommunication device requiring that a user have prior access to such Approved Electronic Platform, website or other device, when such notice, demand, request, consent and other communication shall have been made generally available on such Approved Electronic Platform, Internet website or similar device to the class of Person being notified (regardless of whether any such Person must accomplish, and whether or not any such Person shall have accomplished, any action prior to obtaining access to such items, including registration, disclosure of contact information, compliance with a standard user agreement or undertaking a duty of confidentiality) and (iv) if delivered by electronic mail or any other telecommunications device, when transmitted to an electronic mail address (or by another means of electronic delivery) as provided inclause (a)above;provided,however, that notices and communications to the Administrative Agent pursuant toArticle II, Article VIIandArticle XIII shall not be effective until received by the Administrative Agent.
(c) Use of Electronic Platform. Notwithstandingclauses(a)and(b) above (unless the Administrative Agent requests that the provisions ofclauses (a)and(b) above be followed) and any other provision in this Agreement or any other Loan Document providing for the delivery of, any Approved Electronic Communication by any other means, the Loan Parties shall deliver all Approved Electronic Communications to the Administrative Agent by properly transmitting such Approved Electronic Communications electronically (in a format acceptable to the Administrative Agent) to oploanswebadmin@citigroup.com or such other electronic mail address (or similar means of electronic delivery) as the Administrative Agent may notify the Company. Nothing in thisclause(c) shall prejudice the right of the Administrative Agent or any Lender to deliver any Approved Electronic Communication to any Loan Party in any manner authorized in this Agreement.
Section 14.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent, the Collateral Agent or any Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
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Section 14.4 Survival of Representations and Warranties. All representations and warranties made hereunder and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the Notes.
Section 14.5 Payment of Expenses. (a) The Company shall, and shall cause each other Loan Party to, upon demand, pay, or reimburse each Agent and the Arranger, as applicable, for all of such Agent’s and Arranger’s, as applicable, reasonable and invoiced internal audit, appraisal and valuation costs and expenses and all reasonable and invoiced out-of-pocket costs and expenses of every type and nature (including the reasonable fees, expenses and disbursements of the Agents’ and Arranger’s counsel, Weil, Gotshal & Manges LLP (or any other primary counsel selected by such Agent or Arranger), local legal counsel, auditors, accountants, appraisers, printers, insurance and environmental advisors, and other consultants and agents) incurred by such Agent and Arranger, as applicable, in connection with any of the following: (i) the syndication of the Term Loan Facility, (ii) the Administrative Agent’s audit and investigation of the Company and its Subsidiaries in connection with the preparation, negotiation or execution of any Loan Document or the Administrative Agent’s periodic audits of the Company or any of its Subsidiaries, as the case may be, (iii) the preparation, negotiation, execution or interpretation of this Agreement (including, without limitation, the satisfaction or attempted satisfaction of any condition set forth inArticle IX), any Loan Document or any proposal letter or commitment letter issued in connection therewith, or the making of the Loans hereunder, (iv) the creation, perfection or protection of the Liens under any Loan Document (including any reasonable fees, disbursements and expenses for local counsel in various jurisdictions as contemplated by the Agreement), (v) the ongoing administration of this Agreement and the Loans, including consultation with attorneys in connection therewith and with respect to each Agent’s rights and responsibilities hereunder and under the other Loan Documents, (vi) the protection, collection or enforcement of any Payment Obligation or the enforcement of any Loan Document, (vii) the commencement, defense or intervention in any court proceeding relating in any way to the Payment Obligations, any Loan Party, any of the Company’s Subsidiaries, this Agreement or any other Loan Document, (viii) the response to, and preparation for, any subpoena or request for document production with which such Agent is served or deposition or other proceeding in which such Agent is called to testify, in each case, relating in any way to the Payment Obligations, any Loan Party, any of the Company’s Subsidiaries, this Agreement or any other Loan Document or (ix) any amendment, consent, waiver, assignment, restatement, or supplement to any Loan Document or the preparation, negotiation and execution of the same.
(b) The Company further agrees to, and to cause each other Loan Party to, pay or reimburse each of the Agents and each of the Lenders upon demand for all out-of-pocket costs and expenses, including reasonable and invoiced attorneys’ fees (including costs of counsel and costs of settlement), incurred by such Agents or such Lenders in connection with any of the following: (i) in enforcing any Loan Document or Payment Obligation or any security therefor or exercising or enforcing any other right or remedy available by reason of an Event of Default, (ii) in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work-out” or in any insolvency or bankruptcy proceeding, (iii) in commencing, defending or intervening in any litigation or in filing a petition, complaint, answer, motion or other pleadings in any legal proceeding relating to the Payment Obligations, any Loan Party, any of the Company’s Subsidiaries and related to or arising out of the transactions contemplated hereby or by any other Loan Document or (iv) in taking any other action in or with respect to any suit or proceeding (bankruptcy or otherwise) described inclause (i), (ii) or(iii) above.
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(c) Any obligation of the Company or any other Loan Party pursuant to thisSection 14.5 shall survive Full Satisfaction of the Payment Obligations.
Section 14.6 Assignments and Participations; Binding Effect. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder (including all of its rights and obligations with respect to the Term Loans);provided,however, that (i) the aggregate amount 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 (if less than the assignor’s entire interest) be less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except (A) with the consent of the Company and the Administrative Agent or (B) if such assignment is being made to a Lender or an Affiliate or Related Fund of such Lender and (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Related Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent and the Company (which consents shall not be unreasonably withheld or delayed); andprovided,further, that, notwithstanding any other provision of this Section 14.6, the consent of the Company shall not be required (x) for any assignment occurring when any Event of Default shall have occurred and be continuing and (y) for any assignment by the Administrative Agent or any Affiliate or Related Fund of the Administrative Agent of the Term Loan Commitment or Loans held on the Closing Date by the Administrative Agent or any such Affiliate or Related Fund if such assignment is made as part of the primary syndication of the Facility.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon the execution, delivery, acceptance and recording of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 14.1(c), the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations (including without limitation the obligations underSection 7.12(c)) of a Lender hereunder;provided, however, that no Transferee (including an assignee that is already a Lender hereunder at the time of the assignment) shall be entitled to receive any greater amount pursuant to Section 7.12 than that to which the assignor Lender would have been entitled to receive had no such assignment occurred, (ii) the Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notification in the Register and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those surviving the payment in full of the Payment Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto). Solely for purposes of calculating the assignment fee under thisSection 14.6(b), multiple assignments on the same date by a Lender to its Affiliates or Related Funds shall constitute one assignment.
(c) The Administrative Agent shall maintain at its address referred to in Section 14.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the applicable Term Loan Commitments of and principal amount of and interest with respect to the Term Loans owing
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to each applicable Lender from time to time (each, a “Register”). Any assignment pursuant to thisSection 14.6 shall not be effective until such assignment is recorded in such Register. The entries in each Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent and the Lenders may treat each Person whose name is recorded in such Register as a Lender for all purposes of this Agreement. All information contained in each Register as to any Lender shall be available for inspection by the Company, the Administrative Agent or such Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding anything to the contrary contained herein, the Term Loans (including the Notes evidencing such Loans) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loans shall be transferable only upon notation of such transfer in the applicable Register. A Note shall only evidence the Lender’s or an assignee’s right, title and interest in and to the related Loan, and in no event is any such Note to be considered a bearer instrument or obligation. ThisSection 14.6 shall be construed so that the Term Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as the Company’s agent for purposes of maintaining such notations of transfer in each Register.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record or cause to be recorded the information contained therein in the applicable Register and (iii) give prompt notice thereof to the Company. Within five Business Days after its receipt of such notice, the Company, at its own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent, new Notes to the order of such assignee in an amount equal to the Loans and Term Loan Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Loans or Term Loan Commitment hereunder, new Notes to the order of the assigning Lender in an amount equal to the Loans or Term Loan Commitment retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes.
(f) In addition to the other assignment rights provided in thisSection 14.6, each Lender may do each of the following:
(i) grant to a Special Purpose Vehicle the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder and the exercise of such option by any such Special Purpose Vehicle and the making of Loans pursuant thereto shall satisfy (once and to the extent that such Loans are made) the obligation of such Lender to make such Loans thereunder,provided,however, that (x) nothing herein shall constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose Vehicle shall be liable for any indemnity or other Payment Obligation (other than the making of Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement) and (y) such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain responsible to the other parties for the performance of its obligations under the terms of this Agreement and shall remain the holder of the Payment Obligations for all purposes hereunder; and
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(ii) assign, as collateral or otherwise, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (A) without notice to or consent of the Administrative Agent or the Company, any Federal Reserve Bank (pursuant to Regulation A of the Federal Reserve Board) and (B) without consent of the Administrative Agent or the Company, (1) any holder of, or trustee for the benefit of, the holders of such Lender’s securities and (2) any Special Purpose Vehicle to which such Lender has granted an option pursuant toclause (i) above;
provided,however, that no such assignment or grant shall release such Lender from any of its obligations hereunder except as expressly provided inclause (i) above and except, in the case of a subsequent foreclosure pursuant to an assignment as collateral, if such foreclosure is made in compliance with the other provisions of thisSection 14.6 other than thisclause (f) orclause (g) below. Each party hereto acknowledges and agrees that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any such Special Purpose Vehicle, such party shall not institute against, or join any other Person in instituting against, any Special Purpose Vehicle that has been granted an option pursuant to thisclause (f)any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement shall survive the payment in full of the Payment Obligations). The terms of the designation of, or assignment to, such Special Purpose Vehicle shall not restrict such Lender’s ability to, or grant such Special Purpose Vehicle the right to, consent to any amendment or waiver to this Agreement or any other Loan Document or to the departure by the Company from any provision of this Agreement or any other Loan Document without the consent of such Special Purpose Vehicle except, as long as the Administrative Agent and the Lenders, and other Secured Parties shall continue to, and shall be entitled to continue to, deal solely and directly with such Lender in connection with such Lender’s obligations under this Agreement, to the extent any such consent would reduce the principal amount of, or the rate of interest on, any Payment Obligations, amend thisclause (f) or postpone any scheduled date of payment of such principal or interest. Each Special Purpose Vehicle shall be entitled to the benefits ofSection 7.9(d), 7.10 and7.12 as if it were such Lender;provided,however, that anything herein to the contrary notwithstanding, the Company shall not, at any time, be obligated to make underSection 7.9(d),7.10 and7.12 to any such Special Purpose Vehicle and any such Lender any payment in excess of the amount the Company would have been obligated to pay to such Lender in respect of such interest if such Special Purpose Vehicle had not been assigned the rights of such Lender hereunder;provided,further, that any such Special Purpose Vehicle shall have complied with the requirements ofSection 7.12.
(g) Each Lender may sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to Term Loans). The terms of such participation shall not, in any event, require the participant’s consent to any amendments, waivers or other modifications of any provision of any Loan Documents, the consent to any departure by any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce the obligations of the Loan Parties), except if any such amendment, waiver or other modification or consent would (i) reduce the amount, or postpone any date fixed for the payment of principal, interest or fees payable to such participant under the Loan Documents, to which such participant would otherwise be entitled under such participation or (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 9 of the Intercreditor Agreement. In the event of the sale of any participation by any Lender, (w) such Lender’s obligations under the Loan Documents shall remain unchanged, (x) such Lender shall remain solely responsible to the other
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parties for the performance of such obligations, (y) such Lender shall remain the holder of such Payment Obligations for all purposes of this Agreement and (z) the Company, the Agents 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. Each participant shall be entitled to the benefits ofSection 7.9(d), 7.10 and7.12 as if it were a Lender;provided,however, that notwithstanding anything herein to the contrary, the Company shall not, at any time, be obligated to make any payment underSection 7.9(d), 7.10and 7.12 to the participants in the rights and obligations of any Lender (together with such Lender) in excess of the amount the Company would have been obligated to pay to such Lender in respect of such interest had such participation not been sold;provided,further, that any such participant shall have complied with the requirements ofSection 7.12.
(h) This Agreement shall become effective when it shall have been executed by the Company, the Administrative Agent and the Collateral Agent and when the Administrative Agent shall have been notified by each Lender that such Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Company, the Administrative Agent, the Collateral Agent and each Lender and, in each case, their respective successors and assigns;provided,however, that the Company shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.
Section 14.7 Adjustments; Set-off. (a) Unless an Event of Default has occurred and is continuing, if any Lender (a “benefitted Lender”) shall at any time receive any payment of all or part of any of its Loans owing to it, or interest thereon, pursuant to a guarantee or otherwise, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off or otherwise), in a greater proportion than any such payment to and collateral received by any other Lender, if any, in respect of such other Lender’s Loans owing to it or interest thereon, such benefitted Lender shall purchase for cash from the other Lenders such portion of each such other Lender’s similar Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders which hold such Term Loans;provided,however, that if all or any portion of such excess payment or benefits is thereafter recovered from such benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees that each Lender so purchasing a portion of another Lender’s Loans may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such purchasing Lender were the direct holder of such portion. After the delivery of a Notice of Actionable Default and prior to the withdrawal of all Notices of Actionable Default then pending, all payments or Collateral (or proceeds thereof) received by any Agent or Lender in contravention of this Agreement, the Intercreditor Agreement or any other Loan Document, shall be segregated and held in trust and forthwith paid over to the Collateral Agent to be applied pursuant toSection 7.15(e).
(b) Subject to the Intercreditor Agreement, in addition to any rights and remedies of the Lenders provided by law, upon both the occurrence of an Event of Default and acceleration of the Payment Obligations owing in connection with this Agreement, each Lender and each of its Affiliates shall have the right, without prior notice to the Company, any such notice being expressly waived to the extent permitted by applicable law, to set off and apply against any indebtedness, whether matured or unmatured, of the Company to such or any other Lender or such Affiliate any amount owing from such Lender or such Affiliate to the Company at, or at any time after, the happening of both of the above mentioned events, and such right of set-off may be exercised by such Lender or such Affiliate against the Company or against any
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trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, custodian or execution, judgment or attachment creditor of the Company, or against anyone else claiming through or against the Company or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by such Lender or such Affiliate prior to the making, filing or issuance, or service upon such Lender or such Affiliate of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify the Company and the Administrative Agent after any such set-off and application made by such Lender or any of its Affiliates; provided,however, that the failure to give such notice shall not affect the validity of such set-off and application.
Section 14.8 [Intentionally Omitted.]
Section 14.9 [Intentionally Omitted.]
Section 14.10 Intercreditor Agreement. Each Lender hereby acknowledges that it has fully reviewed the Intercreditor Agreement and, by its execution of this Agreement, hereby consents to the execution and delivery of the Intercreditor Agreement by the Administrative Agent and the Collateral Agent (in their respective capacities as Agents hereunder, as agents under the Existing Credit Agreement, and as agent for the holders of the Designated Eligible Obligations) and agrees to comply with the terms thereof (which terms are incorporated herein by reference in their entirety) as if such Lender were a direct signatory thereto.
Section 14.11 Severability; Conflicts. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In the event of any conflict between the terms of this Agreement and any other Loan Document (except for the Intercreditor Agreement), the terms of this Agreement shall govern. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement or any other Loan Document, the Intercreditor Agreement shall govern.
Section 14.12 Counterparts; Confidentiality. (a) This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or by posting on the Approved Electronic Platform shall be as effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with the Company and the Administrative Agent.
(b) Each Lender agrees that it will not disclose Confidential Information (as defined below) to any Person other than (i) as may be consented to by the Company, (ii) as may be required by law or pursuant to legal process and (iii) to prospective participants and Transferees and those of such Lender’s directors, officers, employees, examiners and professional advisors who have a need to know the Confidential Information in accordance with customary banking practices and who receive the Confidential Information having been made aware of the restrictions of thisSection 14.12(b). As used herein, the term “Confidential Information” means all information contained in materials relating to the Company and its Subsidiaries provided to
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the Lenders by the Company or its representatives or agents other than (x) information which is at the time so provided or thereafter becomes generally available to the public other than as a result of a disclosure by one or more Lenders, (y) information which was available to any Lender prior to its disclosure to the Lenders by the Company, its representatives or agents and (z) information which becomes available to one or more Lenders from a source other than the Company, its representatives or agents.
Section 14.13 Submission To Jurisdiction; Waivers. (a) [Intentionally Omitted.]
(b) The Company hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or proceeding relating to this Agreement or any other Loan Document to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United States for the Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in such courts and waives trial by jury and any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to it at its address set forth inSection 14.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.
(c) The Company, each Agent and each Lender hereby irrevocably and unconditionally waives trial by jury in any legal action or proceeding referred to inclause (a) above.
Section 14.14 Acknowledgements. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents;
(b) none of any Agent, the Arranger or any Lender has any fiduciary relationship with or duty to the Company arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between each such Agent, Arranger and Lenders, on one hand, and the Company, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
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(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Company and the Lenders.
Section 14.15 USA PATRIOT Act. Each Lender hereby notifies the Company that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies the Company, which information includes the name and address of the Company and other information that will allow such Lender to identify the Company in accordance with the Act.
Section 14.16 Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
Section 14.17 Indemnities. (a) The Company agrees to, and shall cause each other Loan Party to, indemnify and hold harmless each Agent, the Arranger, each Lender and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth inArticle IX) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Payment Obligation, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”);provided,however, that the Company shall not have any liability under thisSection 14.17 to an Indemnitee with respect to any Indemnified Matter to the extent such liability has resulted from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order;provided,further, that the Company shall not be required to reimburse the Indemnitees for the fees and expenses of more than one joint counsel for the Administrative Agent and the Collateral Agent and one joint counsel for the other Indemnitees unless such representation shall result in a conflict of interest among the Indemnitees. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any of its Subsidiaries involving any property subject to a Security Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Company or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any
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leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any of its Subsidiaries, or the owner, lessee or operator of any property of the Company or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to inclauses (i),(ii),(iii) and(iv) above, to the extent (x) incurred following foreclosure by the Collateral Agent, at the direction of the Administrative Agent, any Lender, or any Agent or any Lender having become the successor in interest to the Company or any of its Subsidiaries and (y) to the extent attributable to acts of the Agents, such Lender or any agent on behalf of such Agent or such Lender.
(b) The Company shall, and shall cause each other Loan Party to, indemnify the Agents and the Lenders for, and hold the Agents and the Lenders harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents and the Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) The Company, at the request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated inclause (a)above, and the Company, in any event, may participate in the defense thereof with legal counsel of the Company’s choice. In the event that such Indemnitee requests the Company to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and lead such defense, and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense;provided,however, that the fees and expenses of such counsel shall be reasonable for a secondary counsel;provided,further, that the Company shall not be required to reimburse the Indemnitees for the fees and expenses of more than one joint counsel for the Administrative Agent and the Collateral Agent and one joint counsel for the other Indemnitees unless such representation shall result in a conflict of interest among the Indemnitees. No action taken by legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Company’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Company agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to thisSection 14.17) or any other Loan Document shall (i) survive Full Satisfaction of the Payment Obligations and (ii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Loan Document.
Section 14.18 Limitation of Liability. (a) The Company agrees that no Indemnitee shall have any liability (whether in contract, tort or otherwise) to any Loan Party or any of their respective Subsidiaries or any of their respective equity holders or creditors for or in connection with the transactions contemplated hereby and in the other Loan Documents, except to the extent such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnitee’s gross negligence or willful misconduct. In no event, however, shall any Indemnitee be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings). The Company hereby waives, releases and agrees (each for itself and on behalf of Revlon and the Company’s Subsidiaries) not to sue upon any such claim for any special, indirect, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.
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(b) IN NO EVENT SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY TO ANY LOAN PARTY, LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT OR CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY OR ANY AGENT AFFILIATE’S TRANSMISSION OF APPROVED ELECTRONIC COMMUNICATIONS THROUGH THE INTERNET OR ANY USE OF THE APPROVED ELECTRONIC PLATFORM, EXCEPT TO THE EXTENT SUCH LIABILITY OF ANY AGENT AFFILIATE IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FORM SUCH AGENT AFFILIATE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
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INWITNESS 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.
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| REVLON CONSUMER PRODUCTS CORPORATION | |
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| By: | /s/ Robert K. Kretzman | |
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| Name: Robert K. Kretzman |
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| Title: Executive Vice President, Chief Legal Officer and General Counsel |
[SIGNATURE PAGE TO TERM LOAN AGREEMENT]
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| CITICORP USA, INC., as Administrative | |
| By: | /s/ David Leland | |
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| Name: David Leland |
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| Title: Vice President |
[SIGNATURE PAGE TO TERM LOAN AGREEMENT]