Exhibit 10.17
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REVLON CONSUMER PRODUCTS CORPORATION,
AS BORROWER
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$100,000,000
SENIOR UNSECURED MULTIPLE-DRAW TERM LOAN AGREEMENT
Dated as of February 5, 2003
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MACANDREWS & FORBES HOLDINGS INC.,
AS LENDER
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS......................................................1
1.1 Defined Terms.............................................1
1.2 Other Definition Provisions...............................5
SECTION 2. AMOUNT AND TERMS OF COMMITMENT...................................5
2.1 The Commitment............................................5
2.2 Procedure for Borrowing...................................5
2.3 Voluntary Termination or Reduction of the Commitment......6
2.4 Repayment of Loans; Evidence of Debt......................6
2.5 Use of Proceeds...........................................6
SECTION 3. PROVISIONS RELATING TO THE LOANS.................................7
3.1 Optional Prepayments......................................7
3.2 Mandatory Prepayment......................................7
3.3 Interest Rate, Payment Dates and Capitalization of
Accrued Interest..........................................7
3.4 Method of Payments........................................7
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................8
4.1 Corporate Existence.......................................8
4.2 Corporate Power...........................................8
4.3 No Legal Bar to Loans.....................................8
SECTION 5. CONDITIONS PRECEDENT.............................................9
5.1 Conditions to Initial Loan................................9
5.2 Conditions to Each Loan...................................9
SECTION 6. AFFIRMATIVE AND NEGATIVE COVENANTS..............................10
6.1 Certain Covenants of the 9% Note Indenture...............10
6.2 Change of Control........................................12
6.3 Successor Company........................................12
6.4 Further Assurances.......................................13
SECTION 7. EVENTS OF DEFAULT...............................................13
7.1 Events of Default........................................13
SECTION 8. MISCELLANEOUS...................................................15
8.1 Amendments and Waivers...................................15
8.2 Notices..................................................15
8.3 No Waiver; Cumulative Remedies...........................16
8.4 Survival of Representations and Warranties...............16
8.5 Payment of Expenses; General Indemnity...................16
8.6 Successors and Assigns...................................17
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Page
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8.7 Counterparts.............................................17
8.8 Severability.............................................17
8.9 Integration..............................................17
8.10 GOVERNING LAW............................................18
8.11 Submission To Jurisdiction; Waivers......................18
8.12 WAIVERS OF JURY TRIAL....................................18
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SENIOR UNSECURED MULTIPLE-DRAW TERM LOAN AGREEMENT
SENIOR UNSECURED MULTIPLE-DRAW TERM LOAN AGREEMENT, dated as of
February 5, 2003, between REVLON CONSUMER PRODUCTS CORPORATION, a Delaware
corporation (the "Borrower"), and MACANDREWS & FORBES HOLDINGS INC., a Delaware
corporation (the "Lender").
W I T N E S S E T H:
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WHEREAS, the Borrower has requested the Lender to extend credit on a
senior unsecured basis in order to enable the Borrower, subject to the terms and
conditions of this Agreement, to borrow one or more term loans from time to time
prior to the Termination Date in an aggregate principal amount (excluding
capitalized interest) not to exceed $100,000,000;
WHEREAS, the Lender is willing to make such loans to the Borrower only
on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms(a) . As used in this Agreement, the following terms
shall have the following respective meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Adjusted Multi-Currency Commitment" means the Aggregate Multi-Currency
Commitment (excluding any undrawn portions of the Currency Sublimits in an
aggregate amount not to exceed the amount reasonably determined by the Borrower
to be advisable to be maintained in order to provide the flexibility the Local
Borrowers require from time to time to borrow in non-Dollar currencies).
"Affiliate" of any Person means any Person that directly or indirectly
controls, or is under common control with, or is controlled by, such Person. As
used in this definition, "control" (including with its correlative meanings,
"controlled by" and "under common control with") shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Aggregate Multi-Currency Commitment" has the meaning set forth in the
Bank Credit Agreement.
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"Agreement" shall mean this Senior Unsecured Multiple-Draw Term Loan
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"Bank Credit Agreement" means the Second Amended and Restated Credit
Agreement, dated as of November 30, 2001, by and among the Borrower, certain
Local Borrowing Subsidiaries from time to time parties thereto, certain
financial institutions from time to time parties thereto, the Co-Agents named
therein, the Arranger named therein, the Documentation Agent and Syndication
Agent named therein, and JPMorgan Chase Bank, as Administrative Agent, as
amended, supplemented and otherwise modified from time to time.
"Bank Letter of Credit" means a letter of credit issued under the Bank
Credit Agreement.
"Bank Revolving Loan" means a Revolving Credit Loan, a Swing Line Loan,
a Local Loan or an Acceptance made under (and as such terms are defined in) the
Bank Credit Agreement.
"Bankruptcy Law" means Title 11 of the United States Code or any
similar Federal or state law for the relief of debtors.
"Base Principal" means, with respect to any Loan, the Original
Principal less any prepayments thereof.
"Borrower" is defined in the introductory paragraph of this Agreement.
"Borrower's Bank Account" is defined in Section 2.2(a) hereof.
"Borrowing Amount", "Borrowing Date" and "Borrowing Notice" are each
defined in Section 2.2(a) hereof.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in New York, New York are authorized or required by
law to close.
"Change of Control" has the meaning set forth in the 9% Note Indenture.
"Commitment" means the obligation of the Lender to make Loans to the
Borrower hereunder in an aggregate amount of Original Principal of up to
$100,000,000, as such obligation is reduced from time to time in accordance with
Section 2.3 hereof.
"Commitment Period" means the period from and including the Effective
Date to but not including the Termination Date.
"Contractual Obligation" means, with respect to any Person, any
provision of any material debt security or of any material preferred stock or
other equity interest issued by such Person or of any material indenture,
mortgage, agreement, guarantee,
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instrument or undertaking to which such Person is a party or by which it or any
of its material property is bound.
"Currency Sublimit" has the meaning set forth in the Bank Credit
Agreement.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Debt" has the meaning set forth in the 9% Note Indenture.
"Default" means any of the events specified in Section 7.1 hereof,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition specifically set forth therein, has been satisfied.
"Dollars" and "$" mean dollars in lawful currency of the United States
of America.
"Effective Date" is defined in Section 5.1 hereof.
"Event of Default" means any of the events specified in Section 7.1
hereof, provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition specifically set forth therein, has been
satisfied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government (including, without limitation, any governmental department,
commission, board, bureau, agency or instrumentality, or other court or
arbitrator, in each case whether of the United States of America or foreign).
"Interest Capitalization Date" means, as to any Loan, March 31, June
30, September 30 and December 31 of each year.
"Lender" is defined in the introductory paragraph of this Agreement.
"Loans" is defined in Section 2.1(a) hereof.
"Local Borrower" has the meaning set forth in the Bank Credit
Agreement.
"9% Note Indenture" means the Indenture, dated as of November 6, 1998,
between the Borrower and U.S. Bank Trust National Association, as trustee,
relating to the 9% Notes as in effect on the date hereof.
"9% Notes" means the 9% Senior Notes due 2006 of the Borrower and the
9% Senior Exchange Notes due 2006 of the Borrower.
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"Obligations" means the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and interest accruing after
the filing of any petition under any Bankruptcy Law, or the commencement of any
insolvency, reorganization or like proceeding under any Bankruptcy Law, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other obligations and
liabilities of the Borrower to the Lender, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, or any
other document made, delivered or given in connection herewith, whether on
account of principal, interest, fees, indemnities, costs, expenses (including
all fees, charges and disbursements of counsel to the Lender that are required
to be paid by the Borrower pursuant hereto) or otherwise.
"Offer Amount" is defined in Section 6.1(c)(ii)(A) hereof.
"Original Principal" means, with respect to any Loan, the original
principal of the Loan without giving effect to any increase in the principal
amount of such Loan attributable to the capitalization of interest with respect
thereto in accordance with Section 3.3(c) hereof.
"Person" means an individual, a partnership, a corporation, a business
trust, a joint stock company, a limited liability company, a trust, an
unincorporated association, a joint venture, a Governmental Authority or any
other entity of any nature whatsoever.
"Purchase Date" is defined in Section 6.1(c)(ii)(A) hereof.
"Requirement of Law" means, for any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property or to which such
Person or any of its material property is subject.
"Revlon" means Revlon, Inc., a Delaware corporation.
"Special Committee" means the special committee of independent
directors of Revlon established December 17, 2002.
"Subsidiary" of any Person means a corporation or other entity of which
shares of capital stock or other ownership interests having ordinary voting
power (other than stock or other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the directors
of such corporation, or other Persons performing similar functions for such
entity, are owned, directly or indirectly, by such Person; provided that, (a)
unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower and (b) unless otherwise qualified, all references to a
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"wholly-owned Subsidiary" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower of which the Borrower directly or indirectly owns
all of the capital stock or other ownership interests (other than directors'
qualifying shares).
"Termination Date" means December 1, 2005.
1.2 Other Definition Provisions.
(a) All terms defined in this Agreement shall have such
defined meanings when used in any certificate or other document made or
delivered pursuant hereto or thereto unless otherwise defined therein.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection, Schedule and Exhibit references contained in this Agreement are
references to Sections, subsections, Schedules and Exhibits in or to this
Agreement, unless otherwise specified.
SECTION 2. AMOUNT AND TERMS OF COMMITMENT
2.1 The Commitment. Subject to the terms and conditions hereof, the
Lender agrees to make one or more term loans ("Loans") in Dollars to the
Borrower from time to time during the Commitment Period in an aggregate amount
of Original Principal not to exceed the amount of the Commitment; provided, that
no Loan shall be made if, as of the applicable Borrowing Date, the Adjusted
Multi-Currency Commitment has not been substantially drawn after giving effect
to any Bank Revolving Loans to be made, and any Bank Letters of Credit to be
issued, under the Bank Credit Agreement substantially concurrently with such
Loan. Any amount of any Loan that is repaid or prepaid may not be reborrowed.
2.2 Procedure for Borrowing.
(a) The Borrower may borrow under the Commitment during the
Commitment Period on any Business Day; provided, that the Borrower shall deliver
to the Lender a written notice (a "Borrowing Notice") which must (i) specify the
date on which such borrowing is to be made (the "Borrowing Date"), the amount to
be borrowed from the Lender on such Borrowing Date (the "Borrowing Amount"), and
the bank account and other pertinent wire transfer instructions of the Borrower
to which such borrowing is to be deposited by the Lender (the "Borrower's Bank
Account"), (ii) certify that all applicable conditions to such borrowing
hereunder have been satisfied and (iii) be received by the Lender prior to 1:00
P.M., New York City time, three Business Days prior to such Borrowing Date (or,
with respect to the initial Loans requested to be made on the Effective Date,
one Business Day prior to the Effective Date).
(b) On each Borrowing Date set forth in a Borrowing Notice,
the Lender will make a Loan to the Borrower in an amount equal to the lesser of
(i) the Borrowing Amount set forth in such Borrowing Notice, and (ii) the
undrawn portion of
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the Commitment as then in effect by making the proceeds thereof available to the
Borrower in immediately available funds in Dollars not later than 4:00 p.m., New
York City time, on such Borrowing Date to the Borrower's Bank Account.
2.3 Voluntary Termination or Reduction of the Commitment. The Borrower
shall have the right, in its sole discretion, to terminate the Commitment or,
from time to time, to permanently reduce the Commitment during the Commitment
Period by delivering to the Lender a written notice specifying such termination
or the amount of such reduction; provided, that the Commitment may not be
reduced to an amount that is less than the aggregate Original Principal of all
Loans previously made hereunder. Any termination of or permanent reduction in
the Commitment pursuant to this Section 2.3 shall take effect on the date
specified in such written notice.
2.4 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the
Lender the then unpaid principal amount of each Loan (which includes the Base
Principal and any capitalized interest with respect thereto) on the Termination
Date. The Borrower hereby further agrees to pay to the Lender interest on the
unpaid principal amount of each Loan (which includes the Base Principal and any
capitalized interest with respect thereto) from time to time outstanding from
the date hereof until payment in full thereof at the rates per annum and in the
manner set forth in Section 3.3 hereof.
(b) The Lender shall maintain an account or accounts
evidencing indebtedness of the Borrower to the Lender resulting from each Loan
made from time to time hereunder, including for each Loan made (i) the Original
Principal of such Loan made hereunder, (ii) the amount of any interest
capitalized in accordance with Section 3.3(c) hereof, the Base Principal and any
accrued and unpaid interest outstanding in respect of such Loan and (iii) the
amount of any sum received by the Lender hereunder from the Borrower in respect
of such Loan and the manner in which it was applied.
(c) The entries made in the accounts of the Lender maintained
pursuant to Section 2.4(b) hereof shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the obligations of
the Borrower therein recorded; provided, however, that the failure of the Lender
to maintain any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Loans in accordance with the terms of this Agreement.
2.5 Use of Proceeds. The Borrower shall use the proceeds of the Loans
hereunder to provide working capital for the Borrower and its Subsidiaries and
for other general corporate purposes. Such use may include repaying Bank
Revolving Loans if the Adjusted Multi-Currency Commitment continues to be
substantially drawn after giving effect (i) to such repayment of Bank Revolving
Loans and (ii) to any Bank Revolving Loans to be made, and any Bank Letters of
Credit to be issued, under the Bank Credit Agreement substantially concurrently
with such repayment.
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SECTION 3. PROVISIONS RELATING TO THE LOANS
3.1 Optional Prepayments. The Borrower may prepay the Loans, in whole
or in part, at any time without premium or penalty, except to the extent that
such prepayment is prohibited under the terms of the Bank Credit Agreement. Each
such optional prepayment shall be applied first to the Base Principal
outstanding under the Loans and then to the remaining principal outstanding
under the Loans.
3.2 Mandatory Prepayment. The Borrower shall make mandatory prepayments
of the Loans upon a Change of Control in accordance with Section 6.2 hereof.
3.3 Interest Rate, Payment Dates and Capitalization of Accrued
Interest.
(a) Each Loan shall bear interest on the unpaid principal
amount thereof (which principal amount includes the Base Principal and any
capitalized interest with respect thereto) at a rate per annum equal to 12.0%.
(b) If all or a portion of any principal of any Loan (which
principal amount includes the Base Principal and any capitalized interest with
respect thereto), any interest payable thereon or any other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration, as a result of an event requiring a mandatory prepayment or
otherwise), then, for so long as such amount remains unpaid, such overdue amount
shall bear interest at a rate per annum equal to 14.0%.
(c) Interest accrued from time to time shall be payable in
arrears on each Interest Capitalization Date by adding the amount of accrued
interest on such date to the principal amount of such Loan (and any such
interest so added to the principal of a Loan shall bear interest from and after
such Interest Capitalization Date as provided hereunder as if it had been part
of the Base Principal of such Loan). Any accrued and unpaid interest on the
Loans shall be payable in full in cash on the Termination Date.
(d) Interest shall be calculated on the basis of a 365 (or
366, as the case may be) day year for the actual days elapsed.
3.4 Method of Payments.
(a) All payments (including prepayments) to be made by the
Borrower on account of principal, interest, costs and expenses shall be made
without set-off, counterclaim, deduction or withholding and shall be made to the
Lender at such location or to such account as the Lender may specify to the
Borrower, on or prior to 1:00 P.M., New York City time, on the due date thereof,
in Dollars and in immediately available funds.
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(b) If any payment hereunder becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next succeeding
Business Day and interest thereon shall be payable at the then applicable rate
during such extension.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement and to make
the Loans hereunder, the Borrower hereby represents and warrants to the Lender
that:
4.1 Corporate Existence. The Borrower is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
4.2 Corporate Power.
(a) The Borrower has the corporate power, authority and legal
right to execute, deliver and perform this Agreement and to borrow hereunder,
and it has taken as of the Effective Date all necessary corporate action to
authorize its borrowings on the terms and conditions of this Agreement and to
authorize the execution, delivery and performance of this Agreement.
(b) No consent of any other Person (including, without
limitation, stockholders or creditors of the Borrower or of any parent entity of
the Borrower), 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 by or against the Borrower, except
for 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 executed and delivered by a duly
authorized officer of the Borrower and constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with its terms
except as enforceability may be limited by Bankruptcy Laws or other similar laws
affecting creditors' rights generally and except as enforceability may be
limited by general principles of equity.
4.3 No Legal Bar to Loans. The execution, delivery and performance of
this Agreement, and the consummation of the transactions contemplated hereby,
will not violate any Contractual Obligation or material Requirement of Law to
which the Borrower or any of its Subsidiaries is a party, or by which the
Borrower or any of its Subsidiaries or any of their respective material
properties or assets may be bound, and will not result in the creation or
imposition of any lien on any of their respective material properties or assets
pursuant to the provisions of any such Contractual Obligation.
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SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loan. The obligation of the Lender to make
the initial Loan requested to be made by it shall be subject to the satisfaction
or waiver by the Lender of the following conditions precedent (the date on which
said conditions are satisfied or waived being herein called the "Effective
Date"):
(a) Agreement. The Lender shall have received this Agreement,
executed and delivered by a duly authorized officer of the Borrower.
(b) Amendment to Bank Credit Agreement. An amendment to the
Bank Credit Agreement to permit the transactions contemplated by this Agreement
shall have become effective and binding upon the parties thereto and shall be in
form and substance reasonably satisfactory to the Lender.
(c) Certificates. The Lender shall have received (i) a
certificate of the Secretary or Assistant Secretary of the Borrower, dated the
Effective Date, certifying the resolutions of the Borrower's board of directors
(or executive committee thereof) approving and authorizing the execution,
delivery and performance of this Agreement and the borrowings hereunder and (ii)
a certificate of the Secretary or Assistant Secretary of Revlon dated the
Effective Date, certifying the resolutions of Revlon's board of directors (or
executive committee thereof) approving and authorizing the Borrower to execute,
deliver and perform this Agreement and to borrow hereunder upon the
recommendation of the Special Committee of the board of directors of Revlon.
(d) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement shall be reasonably satisfactory in
form and substance to the Lender, and the conditions set forth in Section 5.2
hereof shall have been satisfied or waived by the Lender.
5.2 Conditions to Each Loan. The obligation of the Lender to make any
Loan requested to be made on any Borrowing Date (including, without limitation,
the initial Loan) shall be subject to the satisfaction or waiver by the Lender
of the following conditions precedent:
(a) Utilization of the Bank Credit Agreement. As of the
Borrowing Date, the Adjusted Multi-Currency Commitment shall have been
substantially drawn after giving effect to any Bank Revolving Loans to be made,
and any Bank Letters of Credit to be issued, under the Bank Credit Agreement
substantially concurrently with such Loan.
(b) Credit Availability. The amount of the Loan requested to
be made on such Borrowing Date shall not exceed the amount that the Lender is
obligated to make in accordance with Section 2.1 hereof.
(c) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to this
Agreement
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shall be true and correct in all material respects on and as of such Borrowing
Date as if made on and as of such date, both before and after giving effect to
such Loan and the use of the proceeds thereof.
(d) No Event of Default. No Event of Default shall have
occurred and be continuing on such Borrowing Date, both before and after giving
effect to the Loan requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the Borrowing Date thereof that the conditions
contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitment remains in
effect or any amount is owing to the Lender hereunder:
6.1 Certain Covenants of the 9% Note Indenture. (a) The Borrower will
observe and perform all of the covenants applicable to it and its Subsidiaries
under the following Sections of the 9% Note Indenture, which covenants (together
with the definitions of such terms as may be used therein and as such covenants
and such definitions are in effect as of the date hereof) are hereby
incorporated herein by reference, mutatis mutandis:
(i) Section 4.03 (Limitation on Debt);
(ii) Section 4.04 (Limitation on Liens);
(iii) Section 4.05 (Limitation on Restricted
Payments);
(iv) Section 4.06 (Limitation on Restrictions on
Distributions from Subsidiaries);
(v) Section 4.07 (Limitation on Sales of Assets and
Subsidiary Stock) (excluding paragraph (c) thereof and subject to subsection (c)
of this Section 6.1); and
(vi) Section 4.08 (Limitations on Transactions with
Affiliates).
(b) Any amendments, supplements or other modifications to
Section 4.03, 4.04, 4.05, 4.06, 4.07 or 4.08 of the 9% Note Indenture after the
date hereof shall not be incorporated herein by reference without the prior
written consent of the Lender. In the event that the 9% Note Indenture shall
expire, terminate or be canceled, the provisions of Sections 4.03, 4.04, 4.05,
4.06, 4.07 (excluding paragraph (c) thereof and subject to subsection (c) of
this Section 6.1) and 4.08 thereof shall be deemed to be thereafter incorporated
herein by reference, mutatis mutandis, as such provisions were in effect
immediately prior to such expiration, termination or cancellation (without
giving
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effect to any amendments, supplements or modifications after the date hereof,
and prior to such expiration, termination or cancellation, which the Lender has
not agreed to incorporate) and as such provisions may be amended, supplemented
or otherwise modified from time to time in accordance with the terms of this
Agreement.
(c) With respect to Section 4.07 of the 9% Note Indenture as
incorporated by reference into this Agreement, the following additional terms
shall apply:
(i) If the applicable Asset Disposition (as defined
in the 9% Note Indenture) requires that an Offer (as defined in the 9% Note
Indenture) be made pursuant to Section 4.07(a)(iii)(C) of the 9% Note Indenture,
the Borrower shall designate under Section 4.07(b) of the 9% Note Indenture the
Loans as Pari Passu Debt (as defined in the 9% Note Indenture) to be purchased
at a price equal to 100% of the aggregate outstanding principal amount of the
Loans, without premium, plus accrued interest as of the Purchase Date (as
defined in the 9% Note Indenture) to be subject to an Offer unless otherwise
prohibited from doing so under the terms of any agreement governing Debt
permitted under clause (i) of Section 6.1(a) hereof.
(ii) If an Offer to purchase the Loans is required to
be made, such Offer shall be made in accordance with the following procedure:
(A) Promptly, and in any event within five days
after the last date by which the Borrower must have applied
Net Available Cash (as defined in the 9% Note Indenture)
pursuant to Section 4.07(a)(iii)(B) of the 9% Note Indenture
as incorporated herein pursuant to clause (v) of Section
6.1(a) hereof, the Borrower shall be obligated to deliver to
the Lender a written notice stating that the Lender may elect
to have the Loans purchased by the Company either in whole or
in part (subject to prorationing as hereinafter described in
the event the Offer is oversubscribed) at the purchase price
specified in Section 6.1(c)(i) hereof. The notice shall
specify a purchase date not less than 30 days nor more than 60
days after the date of such notice and corresponding to the
purchase date established under the 9% Note Indenture (the
"Purchase Date") and shall contain information describing the
Asset Dispositions, refer to procedures described in this
Section 6.1(c)(ii), the amount of the Offer (the "Offer
Amount"), the allocation of the Net Available Cash from the
Asset Dispositions pursuant to which such Offer is being made
and the compliance of such allocation with the provisions of
Section 4.07(a) of the 9% Note Indenture as incorporated
herein pursuant to clause (v) of Section 6.1(a) hereof. If the
Lender elects to have all or any part of the Loans purchased
in accordance with paragraph (B) below (subject to
prorationing as hereinafter described in the event the Offer
is oversubscribed), the Borrower shall cause the trustee under
the 9% Note Indenture to deliver payment to the Lender in the
amount of the applicable purchase price on the Purchase Date.
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(B) The Lender, if electing to have all or any
part of the Loans purchased, will be required to send written
notice thereof to the Borrower at the address specified in the
notice of the Offer at least ten Business Days prior to the
Purchase Date, specifying the principal amount of the Loans to
be purchased. The Lender will be entitled to withdraw its
election if the Borrower receives not later than three
Business Days prior to the Purchase Date, a facsimile
transmission or letter setting forth a statement that the
Lender is withdrawing his election to have the Loans
purchased. If the amount of Loans the Lender elects to have
purchased, together with the amount of the 9% Notes and other
Pari Passu Debt surrendered for tender, exceeds the Offer
Amount, the Borrower will cause the Loans elected by the
Lender to be purchased to be so purchased on a pro rata basis
with the 9% Notes and other Pari Passu Debt selected by the
Borrower to be purchased in accordance with Section 4.07(c)(3)
of the 9% Note Indenture.
6.2 Change of Control. Upon the occurrence of a Change of Control, the
Borrower shall provide prompt written notice thereof to the Lender, the
Commitment shall immediately and automatically be reduced to an amount equal to
the Base Principal of the Loans then outstanding, and the Borrower shall prepay
the Loans in full, together with all accrued interest thereon, on the purchase
date for the 9% Notes determined in accordance with Section 4.09 of the 9% Note
Indenture.
6.3 Successor Company.
(a) The Borrower shall not consolidate or merge with or into,
or convey, transfer or lease all or substantially all its assets to, any Person,
unless:
(i) the resulting, surviving or transferee Person (if not the
Borrower) shall be a Person organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia and such Person shall expressly assume, by a written
assumption agreement executed and delivered to the Lender, in form
satisfactory to the Lender, all the obligations of the Borrower under
this Agreement;
(ii) immediately after giving effect to such transaction (and
treating any Debt which becomes an obligation of the resulting,
surviving or transferee Person or any of its Subsidiaries as a result
of such transaction as having been Issued by such Person or such
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
resulting, surviving or transferee Person would be able to incur at
least $1.00 of Debt pursuant to clause (i) of Section 6.1(a) hereof;
(iv) immediately after giving effect to such transaction, the
resulting, surviving or transferee Person shall have a Consolidated Net
Worth (as defined in
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the 9% Note Indenture) in an amount which is not less than the
Consolidated Net Worth of the Borrower immediately prior to such
transaction; and
(v) the Borrower shall have delivered to the Lender an
officers' certificate and an opinion of counsel to the Borrower, each
in form and substance satisfactory to the Lender, stating that such
consolidation, merger or transfer and such assumption agreement (if
any) comply with this Agreement;
provided, that this Section 6.3(a) shall not prohibit a Wholly Owned Recourse
Subsidiary (as defined in the 9% Note Indenture) from consolidating with or
merging with or into, or conveying, transferring or leasing all or substantially
all its assets to, the Borrower.
(b) The resulting, surviving or transferee Person shall be the
successor Borrower and shall succeed to, and be substituted for, and may
exercise every right and power of, the predecessor Borrower under this Agreement
and thereafter, except in the case of a lease, the predecessor Borrower shall be
discharged from all obligations and covenants under this Agreement.
6.4 Further Assurances. Upon the request of the Lender, the Borrower
will execute and deliver such further instruments, provide such further
information and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Agreement.
SECTION 7. EVENTS OF DEFAULT
7.1 Events of Default. An "Event of Default" occurs if:
(a) the Borrower defaults in any payment of interest on any
Loan when the same becomes due and payable and such default continues for a
period of 30 days;
(b) the Borrower defaults in the payment of the principal of
any Loan when the same becomes due and payable;
(c) the Borrower fails to comply with Section 6.3 hereof;
(d) the Borrower fails to comply with the covenants
incorporated by reference in clauses (i), (ii), (iii), (iv), (v) and (vi) of
Section 6.1(a) hereof and such failure continues for 30 days after receipt of
written notice thereof from the Lender;
(e) the Borrower fails to comply with any of the other
material covenants or agreements applicable to it in this Agreement (other than
those referred to in (a), (b), (c) or (d) above) and such failure continues for
60 days after receipt of written notice thereof from the Lender;
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(f) Any representation or warranty made or deemed made by the
Borrower in this Agreement shall prove to have been incorrect, false or
misleading in any material respect on or as of the date when made or deemed to
have been made;
(g) Debt (as defined in the 9% Note Indenture) of the Borrower
or any Significant Subsidiary (as defined in the 9% Note Indenture) is not paid
within any applicable grace period after final maturity or is accelerated by the
holders thereof because of a default, the total principal amount of the portion
of such Debt that is unpaid or accelerated exceeds $25 million or its foreign
currency equivalent and such default continues for 10 days after receipt of
written notice thereof from the Lender;
(h) the Borrower or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief
against it in an involuntary case;
(iii) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of
its creditors; or takes any comparable action under any foreign Bankruptcy Laws;
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Borrower or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Borrower or any
Significant Subsidiary for any substantial part of the Borrower's property; or
(iii) orders the winding up or liquidation of the
Borrower or any Significant Subsidiary;
or any similar relief is granted under any foreign Bankruptcy Laws and the order
or decree remains unstayed and in effect for 60 days; or
(j) any judgment or decree for the payment of money in excess
of $25 million or its foreign currency equivalent is entered against the
Borrower or any Significant Subsidiary and is not discharged and either (A) an
enforcement proceeding has been commenced by any creditor upon such judgment or
decree or (B) there is a period of 60 days following the entry of such judgment
or decree during which such judgment or decree is not discharged, waived or the
execution thereof stayed and, in the case of (B), such default continues for 10
days after receipt of written notice thereof from the Lender.
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The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
If an Event of Default shall have occurred, (A) if such event is an
Event of Default specified in paragraph (h) or (i) of this Section 7.1 with
respect to the Borrower, automatically the Commitment shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) the Lender may by notice to the Borrower declare the
Commitment to be terminated forthwith, whereupon such Commitment shall
immediately terminate; and (ii) the Lender may by notice to the Borrower declare
the Loans hereunder (with accrued interest thereon) and all other amounts owing
by the Borrower under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section 7.1, presentment, demand, protest and all other notices of
any kind are hereby expressly waived.
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers. This Agreement shall not be amended,
supplemented or otherwise modified, except by written instrument which has been
duly executed and delivered by each party hereto. In the case of any waiver of
the terms hereof, the parties to this Agreement shall be restored to their
former positions and rights hereunder, 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.
8.2 Notices. All notices, consents, requests and demands to or upon the
respective parties hereto to be effective shall be in writing and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered by hand, or three Business Days after being deposited in the
mail, certified mail, return receipt requested, postage prepaid, or, in the case
of telecopy or electronic mail notice, when sent and receipt has been confirmed,
addressed as follows (or to such other address as may be hereafter notified by
any of the respective parties hereto):
Borrower: Revlon Consumer Products Corporation
625 Madison Avenue
New York, New York 10022
Attention: Larry Winoker
Telecopy: (212) 527-5250
E-mail: laurence.winoker@revlon.com
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With a copy to: Revlon Consumer Products Corporation
625 Madison Avenue
New York, New York 10022
Attention: Robert Kretzman
Telecopy: (212) 527-5693
E-mail: robert.kretzman@revlon.com
Lender: MacAndrews & Forbes Holdings Inc.
35 East 62nd Street
New York, New York 10021
Attention: General Counsel
Telecopy: (212) 572-5056
Email: barry.schwartz@mafgrp.com
provided, that any notice, request or demand to or upon the Lender pursuant to
Sections 2 and 3 shall not be effective until received.
8.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the 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.
8.4 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 making of the Loans hereunder.
8.5 Payment of Expenses; General Indemnity. The Borrower agrees (a) to
pay or reimburse the Lender for all of its reasonable out-of-pocket attorneys'
fees and expenses incurred in connection with the preparation, execution and
delivery of, and any amendment, supplement or modification to, this Agreement
and any other documents prepared in connection herewith, and the consummation of
the transactions contemplated hereby and thereby, (b) to pay or reimburse the
Lender for all its reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred in
connection with the enforcement or preservation of any rights under this
Agreement and any such other documents, (c) to pay, indemnify, and to hold the
Lender harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay caused by the Borrower
in paying, stamp, excise and other similar taxes, if any, if legal, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, this Agreement and any such other documents, and (d) to pay,
indemnify, and hold harmless the Lender from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs,
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expenses or disbursements of any kind or nature whatsoever (including, without
limitation, reasonable attorneys' fees and expenses) with respect to the
execution, delivery, consummation, enforcement, performance and administration
of this Agreement and any such other documents (all of the foregoing,
collectively, the "indemnified liabilities"); provided that the Borrower shall
have no obligation hereunder with respect to indemnified liabilities arising
from (i) the gross negligence or willful misconduct of the Lender, (ii) legal
proceedings commenced against the Lender by any security holder or creditor
thereof arising out of and based upon rights afforded any such security holder
or creditor solely in its capacity as such or (iii) amounts of the types
referred to in clauses (a) through (c) above except as provided therein. The
agreements in this Section 8.5 shall survive the termination of the Commitment
and the repayment of the Loans and all other amounts payable hereunder.
8.6 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lender and their respective successors
and permitted assigns and, except as set forth below, neither the Borrower nor
the Lender may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the other party. This Agreement,
or the Lender's obligations hereunder, may be assigned, delegated or
transferred, in whole or in part, by the Lender to any Affiliate of the Lender
(other than REV Holdings LLC) over which the Lender or any of its Affiliates
exercises investment authority, including, without limitation, with respect to
voting and dispositive rights provided any such assignee assumes the obligations
of the Lender hereunder and agrees in writing to be bound by the terms of this
Agreement in the same manner as the Lender. Notwithstanding the foregoing, no
such assignment shall relieve the Lender of its obligations hereunder if such
assignee fails to perform such obligations. Without complying with the
provisions of this Section 8.6, the Lender may satisfy its obligations under
Sections 2.1 or 2.2 hereof by causing an Affiliate of the Lender (other than REV
Holdings LLC) to satisfy its obligations under such Sections.
8.7 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
8.8 Severability. 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.
8.9 Integration. This Agreement represents the agreement of the
Borrower and the Lender with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by the Lender for the
benefit of the Borrower relative to the subject matter hereof not expressly set
forth or referred to herein.
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8.10 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.11 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, 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 of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives 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;
(c) 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 the
Borrower at its address set forth in Section 8.2 or at such other address of
which the Lender shall have been notified pursuant thereto;
(d) 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; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential damages.
8.12 WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Robert K. Kretzman
-------------------------------------
Name: Robert K. Kretzman
Title: Senior Vice President, General
Counsel and Secretary
MACANDREWS & FORBES HOLDINGS INC.
By: /s/ Todd Slotkin
-------------------------------------
Name: Todd Slotkin
Title: Chief Financial Officer
and Executive Vice President
[Term Loan Agreement]