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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.
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| REVLON CONSUMER PRODUCTS CORPORATION | |
| By: | /s/ Robert K. Kretzman | |
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| Name: | Robert K. Kretzman |
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| Title: | Executive Vice President |
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| CITICORP USA, INC., as Term Loan | |
| By: | /s/ David Leland | |
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| Name: | David Leland |
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| Title: | Vice President |
[NAME OF LENDER]
PAGE | |||||
ARTICLE I | DEFINITIONS | 1 | |||
Section 1.1 | Defined Terms | 1 | |||
Section 1.2 | Other Definitional Provisions | 52 | |||
ARTICLE II | AMOUNTS AND TERMS OF TERM LOAN COMMITMENT | 52 | |||
Section 2.1 | Term Loan Commitments | 52 | |||
Section 2.2 | Obligations of the Company | 53 | |||
Section 2.3 | Procedure for Borrowing Term Loans | 53 | |||
Section 2.4 | Amortization of Term Loans | 54 | |||
Section 2.5 | Use of Proceeds of Term Loans | 55 | |||
ARTICLE III | AMOUNT AND TERMS OF REVOLVING CREDIT SUB-FACILITY | 56 | |||
Section 3.1 | Revolving Credit Commitments | 56 | |||
Section 3.2 | Obligations of Company | 57 | |||
Section 3.3 | Procedure for Borrowing Revolving Credit Loans | 57 | |||
Section 3.4 | Use of Proceeds of Revolving Credit Loans | 58 | |||
ARTICLE IV | AMOUNT AND TERMS OF SWING LINE SUB-FACILITY | 58 | |||
Section 4.1 | Swing Line Commitments | 58 | |||
Section 4.2 | Participations | 60 | |||
Section 4.3 | Use of Proceeds of Swing Line Loans | 60 | |||
ARTICLE V | AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY | 60 | |||
Section 5.1 | Letters of Credit Facility | 60 | |||
Section 5.2 | Procedure for Issuance of Letters of Credit | 61 | |||
Section 5.3 | L/C Participations | 62 | |||
Section 5.4 | L/C Reimbursement Obligation of the Company | 63 | |||
Section 5.5 | Obligations Absolute | 63 | |||
Section 5.6 | Letter of Credit Payments | 63 | |||
Section 5.7 | Application | 63 | |||
Section 5.8 | Cash Collateral for Letters of Credit | 64 | |||
Section 5.9 | Existing Letters of Credit | 64 | |||
ARTICLE VI | AMOUNT AND TERMS OF LOCAL LOAN SUB-FACILITY | 64 | |||
Section 6.1 | Local Loan Commitments | 64 | |||
Section 6.2 | Obligations of Local Borrowers | 65 | |||
Section 6.3 | Procedure for Borrowing Local Loans | 65 |
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Section 6.4 | Currency Conversion and Contingent Funding Agreement | 67 | |||
Section 6.5 | Designation of Additional Denomination Currencies | 69 | |||
Section 6.6 | Re-Allocation of Currency Sublimits | 70 | |||
Section 6.7 | Resignation or Removal of a Local Fronting Lender | 71 | |||
Section 6.8 | Reports | 72 | |||
Section 6.9 | Bankers’ Acceptances | 73 | |||
Section 6.10 | Use of Proceeds of Local Loans and Acceptances | 74 | |||
ARTICLE VII | PROVISIONS RELATING TO CERTAIN EXTENSIONS OF CREDIT; FEES AND PAYMENT | 74 | |||
Section 7.1 | Voluntary Termination or Reduction of Aggregate Multi-Currency Commitment | 74 | |||
Section 7.2 | Optional Prepayments | 74 | |||
Section 7.3 | Mandatory Prepayments and Commitment Reductions | 75 | |||
Section 7.4 | Application of Payments and Commitment Reductions | 78 | |||
Section 7.5 | Interest Rate and Payment Dates; Risk Participation Fees; Local Administrative Fee | 79 | |||
Section 7.6 | Letter of Credit Fees, Commissions and Other Charges | 81 | |||
Section 7.7 | Conversion Options, Minimum Tranches and Maximum Interest Periods | 81 | |||
Section 7.8 | Inability to Determine Interest Rate | 83 | |||
Section 7.9 | Illegality | 84 | |||
Section 7.10 | Requirements of Law; Changes of Law | 85 | |||
Section 7.11 | Indemnity | 87 | |||
Section 7.12 | Taxes | 87 | |||
Section 7.13 | Commitment Fee | 90 | |||
Section 7.14 | Computation of Interest and Fees | 90 | |||
Section 7.15 | Pro Rata Treatment and Payments | 91 | |||
Section 7.16 | Interest Act (Canada) | 94 | |||
ARTICLE VIII | REPRESENTATIONS AND WARRANTIES | 94 | |||
Section 8.1 | Corporate Existence | 95 | |||
Section 8.2 | Corporate Power | 95 | |||
Section 8.3 | No Legal Bar to Loans | 95 | |||
Section 8.4 | No Material Litigation | 96 |
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Section 8.5 | No Default | 96 | |||
Section 8.6 | Ownership of Properties; Liens | 96 | |||
Section 8.7 | Taxes | 96 | |||
Section 8.8 | ERISA | 97 | |||
Section 8.9 | Financial Condition | 97 | |||
Section 8.10 | No Change | 98 | |||
Section 8.11 | Federal Regulations | 98 | |||
Section 8.12 | Investment Company Act; PUHCA | 98 | |||
Section 8.13 | Matters Relating to Subsidiaries | 98 | |||
Section 8.14 | Mortgages | 99 | |||
Section 8.15 | Solvency | 99 | |||
Section 8.16 | Environmental Matters | 99 | |||
Section 8.17 | Models | 100 | |||
Section 8.18 | Disclosure | 100 | |||
Section 8.19 | Senior Indebtedness | 101 | |||
Section 8.20 | Regulation H | 101 | |||
Section 8.21 | Affiliate Obligations | 101 | |||
Section 8.22 | Indebtedness Owing to Affiliates | 101 | |||
ARTICLE IX | CONDITIONS PRECEDENT | 101 | |||
Section 9.1 | Conditions to Initial Extensions of Credit | 101 | |||
Section 9.2 | Conditions to Each Extension of Credit | 106 | |||
Section 9.3 | Conditions to Each Facilities Increase | 107 | |||
ARTICLE X | AFFIRMATIVE COVENANTS | 108 | |||
Section 10.1 | Financial Statements | 108 | |||
Section 10.2 | Certificates; Other Information | 109 | |||
Section 10.3 | Payment of Obligations | 110 | |||
Section 10.4 | Conduct of Business and Maintenance of Existence | 110 | |||
Section 10.5 | Maintenance of Property; Insurance | 110 | |||
Section 10.6 | Inspection of Property; Books and Records; Discussions | 110 | |||
Section 10.7 | Notices | 111 | |||
Section 10.8 | Maintenance of Corporate Identity | 112 | |||
Section 10.9 | Environmental Laws | 112 |
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Section 10.10 | Additional Guaranties | 112 | |||
Section 10.11 | Additional Stock Pledges | 113 | |||
Section 10.12 | Additional Collateral | 114 | |||
Section 10.13 | Asset Transfers | 114 | |||
Section 10.14 | Intellectual Property | 114 | |||
Section 10.15 | Additional Mortgages | 117 | |||
Section 10.16 | Post-Closing Matters | 117 | |||
Section 10.17 | Borrowing Base Determination | 117 | |||
Section 10.18 | Tax Reporting | 118 | |||
Section 10.19 | Control Accounts; Approved Deposit Accounts | 118 | |||
Section 10.20 | Landlord Waiver and Bailee’s Letters | 119 | |||
ARTICLE XI | NEGATIVE COVENANTS | 119 | |||
Section 11.1 | Financial Covenants | 119 | |||
Section 11.2 | Indebtedness | 120 | |||
Section 11.3 | Limitation on Liens | 123 | |||
Section 11.4 | Limitation on Contingent Obligations | 126 | |||
Section 11.5 | Limitation on Fundamental Changes | 126 | |||
Section 11.6 | Limitation on Sale of Assets | 127 | |||
Section 11.7 | Limitation on Restricted Payments | 128 | |||
Section 11.8 | Limitation on Investments | 129 | |||
Section 11.9 | Limitation on Payments on Account of Debt; Synthetic Purchase Agreements | 131 | |||
Section 11.10 | Limitation on Transactions with Affiliates | 132 | |||
Section 11.11 | Hazardous Materials | 132 | |||
Section 11.12 | Accounting Changes | 132 | |||
Section 11.13 | Limitation on Negative Pledge Clauses | 133 | |||
Section 11.14 | Amendment of Company Tax Sharing Agreement | 133 | |||
Section 11.15 | Limitations on Restrictions on Subsidiary Distributions | 133 | |||
Section 11.16 | Limitation on Activities of RPH | 133 | |||
Section 11.17 | Prohibition on Speculative Hedging Transactions | 134 | |||
ARTICLE XII | EVENTS OF DEFAULT | 134 | |||
Section 12.1 | Events of Default | 134 |
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Section 12.2 | Right to Cure | 139 | |||
ARTICLE XIII | THE AGENTS | 139 | |||
Section 13.1 | Authorization and Action | 139 | |||
Section 13.2 | Agents’ Reliance, Etc | 141 | |||
Section 13.3 | Posting of Approved Electronic Communications | 141 | |||
Section 13.4 | The Agents Individually | 142 | |||
Section 13.5 | Lender Credit Decision | 142 | |||
Section 13.6 | Indemnification | 143 | |||
Section 13.7 | Successor Agent | 143 | |||
Section 13.8 | Concerning the Collateral and the Security Documents | 144 | |||
ARTICLE XIV | MISCELLANEOUS | 145 | |||
Section 14.1 | Amendments and Waivers | 145 | |||
Section 14.2 | Notices | 148 | |||
Section 14.3 | No Waiver; Cumulative Remedies | 149 | |||
Section 14.4 | Survival of Representations and Warranties | 149 | |||
Section 14.5 | Payment of Expenses | 150 | |||
Section 14.6 | Assignments and Participations; Binding Effect | 150 | |||
Section 14.7 | Adjustments; Set-off | 154 | |||
Section 14.8 | Delegation by each Local Borrowing Subsidiary | 156 | |||
Section 14.9 | Judgment | 156 | |||
Section 14.10 | Intercreditor Agreement | 156 | |||
Section 14.11 | Severability; Conflicts | 157 | |||
Section 14.12 | Counterparts; Confidentiality | 157 | |||
Section 14.13 | Submission To Jurisdiction; Waivers | 157 | |||
Section 14.14 | Acknowledgements | 158 | |||
Section 14.15 | USA PATRIOT Act | 159 | |||
Section 14.16 | Governing Law | 159 | |||
Section 14.17 | Indemnities | 159 | |||
Section 14.18 | Limitation of Liability | 160 |
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PAGE | ||
Schedules | ||
Schedule I | Lenders; Addresses for Notices | |
Schedule II | Commitments | |
Schedule III | Borrowers, Denomination Currencies; Currency Sublimits; Maximum Sublimits; Local Fronting Lenders | |
Schedule IV | Borrowing Base Definitions | |
Schedule 1.1 | Existing Eligible Obligations | |
Schedule 5.9 | Existing Letters of Credit | |
Schedule 6.3 | Existing Local Loans | |
Schedule 8.13 | Subsidiaries of the Company; Subsidiaries Scheduled for Dissolution | |
Schedule 8.16 | Environmental Matters | |
Schedule 9.1(d) | Mortgages | |
Schedule 9.1(h)(iv) | Domestic Local Counsel | |
Schedule 9.1(h)(v) | International Local Counsel | |
Schedule 10.16 | Post-Closing Matters | |
Schedule 11.3 | Liens | |
Schedule 11.4 | Contingent Obligations | |
Schedule 11.6 | Disposition Assets | |
Exhibits | ||
Exhibit A | Form of Term Loan Note | |
Exhibit B | Form of Revolving Credit Note | |
Exhibit C | Form of Borrowing Base Certificate | |
Exhibit D | Form of Intercreditor Agreement | |
Exhibit E | Form of Guaranty | |
Exhibit F | Form of Pledge and Security Agreement | |
Exhibit G | Form of Mortgage | |
Exhibit H-1 | Form of Notice of Borrowing | |
Exhibit H-2 | Form of Application | |
Exhibit H-3 | Form of Swing Line Loan Request | |
Exhibit I | Form of Notice of Conversion or Continuation | |
Exhibit J | Form of Affiliate Subordination Letter | |
Exhibit K-1 | Form of Opinion of Paul, Weiss, Rifkind, | |
Wharton & Garrison LLP | ||
Exhibit K-2 | Form of Opinion of Executive Vice President and | |
General Counsel of the Company | ||
Exhibit K-3 | Form of Opinion of Weil, Gotshal & Manges LLP | |
Exhibit L | Form of Assignment and Acceptance | |
Exhibit M | Form of Compliance Certificate | |
Exhibit N | Form of Capital Contribution Note | |
Exhibit O-1 | Form of Local Borrowing Subsidiary Joinder Agreement | |
Exhibit O-2 | Form of Local Fronting Lender Joinder Agreement | |
Exhibit P-1 | Form of Local Loan Statement | |
Exhibit P-2 | Form of Interest Allocation Statement (Local Loans) | |
Exhibit Q | Form of U.S. Tax Compliance Certificate | |
Exhibit R | Form of Solvency Certificate |
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Prepayment Date | Prepayment Fee |
On or prior to the first anniversary of the Closing Date | 5.00% |
After the first anniversary of the Closing Date and on or prior to the second anniversary of the Closing Date | 3.00% |
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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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Installment | Principal Amount |
October 15, 2005 | $2,000,000 |
January 15, 2006 | $2,000,000 |
April 15, 2006 | $2,000,000 |
July 15, 2006 | $2,000,000 |
October 15, 2006 | $2,000,000 |
January 15, 2007 | $2,000,000 |
April 15, 2007 | $2,000,000 |
July 15, 2007 | $2,000,000 |
October 15, 2007 | $2,000,000 |
January 15, 2008 | $2,000,000 |
April 15, 2008 | $2,000,000 |
July 15, 2008 | $2,000,000 |
October 15, 2008 | $2,000,000 |
January 15, 2009 | $2,000,000 |
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Installment | Principal Amount |
April 15, 2009 | $2,000,000 |
July 15, 2009 | $2,000,000 |
October 15, 2009 | $2,000,000 |
January 15, 2010 | $2,000,000 |
April 15, 2010 | $2,000,000 |
Term Loan Maturity Date | $762,000,000 |
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(b) Except to the extent set forth inSection 10.16, the Company will, and will cause each of the Subsidiary Guarantors to, pledge to the Collateral Agent 66% (rounded downward to eliminate any fraction of a share) of the issued and outstanding shares of each class of Stock and Stock Equivalents entitled to vote (within the meaning of Treasury Regulation Section 1.956-2(c)(2)) (“Voting Stock”) and 100% of the issued and outstanding shares of each class of Stock and Stock Equivalents not entitled to vote (within the meaning of such regulation) (“Non-Voting Stock”) of each first-tier Foreign Subsidiary of the Company or such Subsidiary Guarantor which (in each case) is owned of record by the Company or such Subsidiary Guarantor and which has not previously been pledged hereunder;provided,however, that in no event shall the Company and the Subsidiary Guarantors pledge an aggregate amount of Voting Stock that exceeds 66% of the total outstanding Voting Stock (taken as a whole) of any first-tier Foreign Subsidiary of the Company or such Subsidiary Guarantor. Each such pledge shall be granted pursuant to duly executed joinders and amendments to the Pledge and Security Agreement and if applicable, the other Security Documents, in each case, as (x) the New Term Loan Administrative Agent deems necessary or advisable in order to effectively grant a valid, perfected and enforceable security interest in the Pledged Stock delivered thereto under the laws of the State of New York and, if such issuer of Pledged Stock is organized under the laws of the United
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REVLON CONSUMER PRODUCTS CORPORATION | ||||
By: | /s/ Steven F. Schiffman | |||
Name: | Steven F. Schiffman | |||
Title: | Senior Vice President and Treasurer | |||
REVLON INTERNATIONAL CORPORATION (UK Branch), as a Local Borrowing Subsidiary | ||||
By: | /s/ Michael T. Sheehan | |||
Name: | Michael T. Sheehan | |||
Title: | Vice President and Secretary | |||
REVLON AUSTRALIA Pty LIMITED, as a Local Borrowing Subsidiary | ||||
By: | /s/ Michael T. Sheehan | |||
Name: | Michael T. Sheehan | |||
Title: | Attorney in Fact | |||
EUROPÉENNE DE PRODUITS DE BEAUTÉ, S.A.S., as a Local Borrowing Subsidiary | ||||
By: | /s/ Michael T. Sheehan | |||
Name: | Michael T. Sheehan | |||
Title: | Attorney in Fact | |||
REVLON S.p.A., as a Local Borrowing Subsidiary | ||||
By: | /s/ Michael T. Sheehan | |||
Name: | Michael T. Sheehan | |||
Title: | Director |
CITICORP USA, INC., as Term Loan Administrative Agent | ||||
By: | /s/ John G. McAuley | |||
Name: | John G. McAuley | |||
Title: | Vice President |
CITICORP USA, INC., as Multi-Currency Administrative Agent and Swing Line Lender | ||||
By: | /s/ James J. McCarthy | |||
Name: | James J. McCarthy | |||
Title: | Vice President/Director |
CITICORP USA, INC., as Collateral Agent | ||||
By: | /s/ James J. McCarthy | |||
Name: | James J. McCarthy | |||
Title: | Vice President/Director |
CITICORP USA, INC., as Lender | ||||
By: | /s/ James J. McCarthy | |||
Name: | James J. McCarthy | |||
Title: | Vice President/Director |
CITIBANK, N.A., as Issuing Lender | ||||
By: | /s/ James J. McCarthy | |||
Name: | James J. McCarthy | |||
Title: | Vice President/Director |
SIGNED, SEALED and DELIVERED | ) |
by , | ) |
the lawful attorney of | ) L. S. /s/ Michael Sheehan |
REVLON (HONG KONG) LIMITED, | ) |
a Local Borrowing Subsidiary | ) |
in the presence of : | ) |
Witness’s signature | /s/ Melissa J. Mitidiero |
WELLS FARGO FOOTHILL, LLC, as a Lender | ||||
By: | /s/ Sanat Amladi | |||
Name: | Sanat Amladi | |||
Title: | Vice President |
GMAC COMMERCIAL FINANCE LLC, as a Lender | ||||
By: | /s/ George Grieco | |||
Name: | George Grieco | |||
Title: | Director |
UBS, AG, STAMFORD BRANCH, as a Lender | ||||
By: | /s/ Wilfred V. Balm | |||
Name: | Wilfred V. Balm | |||
Title: | Director Banking Products Services, US | |||
By: | /s/ Joselin Fernandes | |||
Name: | Joselin Fernandes | |||
Title: | Associate Director Banking Products Services, US |
STATE OF CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, as a Lender | ||||
By: | /s/ Curtis D. Ishii | |||
Name: | Curtis D. Ishii | |||
Title: | Senior Investment Officer |