Exhibit 10.18
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REVLON CONSUMER PRODUCTS CORPORATION,
AS BORROWER
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SENIOR UNSECURED SUPPLEMENTAL LINE OF CREDIT AGREEMENT
Dated as of February 5, 2003
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MACANDREWS & FORBES HOLDINGS INC.,
AS LENDER
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS......................................................1
1.1 Defined Terms.............................................1
1.2 Other Definition Provisions...............................6
SECTION 2. AMOUNT AND TERMS OF COMMITMENT...................................6
2.1 The Commitment............................................6
2.2 Procedure for Borrowing...................................6
2.3 Voluntary Termination or Reduction of the Commitment......7
2.4 Repayment of Loans; Evidence of Debt......................7
2.5 Use of Proceeds...........................................8
SECTION 3. PROVISIONS RELATING TO THE LOANS.................................8
3.1 Optional Prepayments......................................8
3.2 Mandatory Prepayments.....................................8
3.3 Restriction on Payments of Loans..........................8
3.4 Interest Rate and Payment Dates...........................9
3.5 Method of Payments........................................9
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................9
4.1 Corporate Existence......................................10
4.2 Corporate Power..........................................10
4.3 No Legal Bar to Loans....................................10
SECTION 5. CONDITIONS PRECEDENT............................................10
5.1 Conditions to Initial Loan...............................10
5.2 Conditions to Each Loan..................................11
SECTION 6. AFFIRMATIVE AND NEGATIVE COVENANTS..............................12
6.1 Certain Covenants of the 9% Note Indenture...............12
6.2 Change of Control........................................14
6.3 Successor Company........................................14
6.4 Further Assurances.......................................15
SECTION 7. EVENTS OF DEFAULT...............................................15
7.1 Events of Default........................................15
SECTION 8. MISCELLANEOUS...................................................17
8.1 Amendments and Waivers...................................17
8.2 Notices..................................................17
8.3 No Waiver; Cumulative Remedies...........................18
8.4 Survival of Representations and Warranties...............18
8.5 Payment of Expenses; General Indemnity...................18
8.6 Successors and Assigns...................................19
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8.7 Counterparts.............................................19
8.8 Severability.............................................19
8.9 Integration..............................................19
8.10 GOVERNING LAW............................................19
8.11 Submission To Jurisdiction; Waivers......................19
8.12 WAIVERS OF JURY TRIAL....................................20
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SENIOR UNSECURED SUPPLEMENTAL LINE OF CREDIT AGREEMENT
SENIOR UNSECURED SUPPLEMENTAL LINE OF CREDIT 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, on a revolving basis, at any time and
from time to time prior to the Termination Date in an aggregate principal amount
at any time outstanding not to exceed $40,000,000 during 2003 and not to exceed
$65,000,000 during 2004;
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. 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 Supplemental Line of
Credit Agreement, as the same may be amended, supplemented or otherwise modified
from time to time.
"Available Commitment" means, at any time, an amount equal to the
excess, if any, of (a) the Commitment over (b) the aggregate principal amount of
all Loans then outstanding.
"Available Term Loan Commitment" means, at any time, the difference
equal to (a) the "Commitment" as defined in the Term Loan Agreement minus (b)
the aggregate original principal amount of Term Loans issued under the Term Loan
Agreement.
"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.
"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 principal amount at any one time outstanding
of up to $40,000,000 for the period from the Effective Date through and
including December 31, 2004, increasing to $65,000,000 for the period from and
including January 1, 2004
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through and including December 31, 2004, as such obligation is reduced from time
to time in accordance with Section 2.3 hereof.
"Commitment Period" means the period from and including the Effective
Date to but not including the Termination Date.
"Contractual Obligation" means, with respect to any Person, any
provision of any material debt security or of any material preferred stock or
other equity interest issued by such Person or of any material indenture,
mortgage, agreement, guarantee, instrument or undertaking to which such Person
is a party or by which it or any of its material property is bound.
"Currency Sublimit" has the meaning set forth in the Bank Credit
Agreement.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Debt" has the meaning set forth in the 9% Note Indenture.
"Default" means any of the events specified in Section 7.1 hereof,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition specifically set forth therein, has been satisfied.
"Dollars" and "$" mean dollars in lawful currency of the United States
of America.
"Effective Date" is defined in Section 5.1 hereof.
"Eurodollar Loans" has the meaning set forth in the Bank Credit
Agreement.
"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 Payment Date" means, as to any Loan, March 31, June 30,
September 30 and December 31 of each year.
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"Investment Agreement" means the Investment Agreement, dated as of
February 5, 2003, by and among Revlon, the Borrower and the Lender, as amended,
supplemented and modified from time to time.
"Lender" is defined in the introductory paragraph of this Agreement.
"Liquidity" means, at any time, the sum of the following available
amounts at such time: (a) Unrestricted Cash of the Borrower and its
Subsidiaries, (b) the funds available under the Multi-Currency Commitments (as
defined in the Bank Credit Agreement) to the extent no default or event of
default has occurred and is continuing under the Bank Credit Agreement, (c)
funds available under the Available Commitment under this Agreement, (d) funds
available under other indebtedness permitted pursuant to Section 11.2(n) of the
Bank Credit Agreement to the extent such indebtedness, including the commitment
with respect thereto, is evidenced by documentation reasonably acceptable to the
Administrative Agent under the Bank Credit Agreement, (e) funds available under
the Term Loan Agreement to the extent no default or event of default has
occurred and is continuing thereunder and (f) (prior to the consummation of the
Rights Offering) funds available to the Borrower as a result of sales of Series
C Preferred by Revlon pursuant to Section 2.6 of the Investment Agreement to the
extent that the conditions set forth therein to the obligations of the Lender or
its Affiliate (other than REV Holdings LLC) to purchase Series C Preferred are
being satisfied.
"Liquidity Condition" is defined in Section 3.3 hereof.
"Loans" is defined in Section 2.1(a) hereof.
"Local Borrower" has the meaning set forth in the Bank Credit
Agreement.
"Maximum Rate" is defined in Section 3.4(a) hereof.
"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.
"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,
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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.
"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.
"Rights Offering" has the meaning set forth in the Investment
Agreement.
"Series C Preferred" means the Series C Preferred Stock, par value
$0.01 per share, of Revlon, which will have the rights, preferences and
privileges set forth in a certificate of designations, powers, preferences and
rights which will contain substantially the terms set forth on Exhibit C to the
Investment Agreement.
"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
"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).
"Term Loan" means a "Loan" as defined in the Term Loan Agreement.
"Term Loan Agreement" means the $100,000,000 Senior Unsecured
Multiple-Draw Term Loan Agreement, dated as of February 5, 2003, between the
Borrower and the Lender, as amended, supplemented or otherwise modified from
time to time.
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"Termination Date" means December 31, 2004 or, if earlier, the date
upon which the Commitment shall terminate in accordance with the terms hereof.
"Unrestricted Cash" means cash and Cash Equivalents (as defined the
Bank Credit Agreement) which the Borrower or its Subsidiaries may utilize to
fund working capital requirements and which is not subject to a lien that
restricts the ability of the Borrower or its relevant Subsidiary to withdraw and
use such cash or Cash Equivalents (other than the liens governed by the
Collateral Agency Agreement (as defined in the Bank Credit Agreement)) and which
does not consist of compensating balances for indebtedness permitted under the
Bank Credit Agreement.
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.
(a) Subject to the terms and conditions hereof, the Lender
agrees to make revolving loans ("Loans") in Dollars to the Borrower from time to
time during the Commitment Period with an aggregate amount of principal
outstanding at any one time not to exceed the amount of the Commitment then in
effect; provided, that no Loan shall be made unless, as of the applicable
Borrowing Date, (i) the Adjusted Multi-Currency Commitment has 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, (ii) the Available Term Loan
Commitment is zero, after giving effect to any Term Loans to be made under the
Term Loan Agreement substantially concurrently with such Loan and (iii) (prior
to the consummation of the Rights Offering) the Lender or its Affiliate (other
than REV Holdings LLC) shall have purchased Series C Preferred for an aggregate
purchase price of $50,000,000 pursuant to Section 2.6 of the Investment
Agreement, after giving effect to any purchases of Series C Preferred to be made
by the Lender or its Affiliate (other than REV Holdings LLC) substantially
concurrently with such Loan.
(b) During the Commitment Period, the Borrower may use the
Commitment by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
2.2 Procedure for Borrowing.
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(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 (3) Business Days prior to such Borrowing 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 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. 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) Subject to Section 3.3, the Borrower hereby
unconditionally promises to pay to the Lender the then unpaid principal amount
of each Loan on the Termination Date. The Borrower hereby further agrees to pay
to the Lender interest on the unpaid principal amount of each Loan 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 3.4 hereof.
(b) The Lender shall maintain an account evidencing the
indebtedness of the Borrower to the Lender resulting from the Loans, including
the outstanding principal amount of each Loan, accrued and unpaid interest
outstanding in respect thereof and the amount of any sum received by the Lender
hereunder from the Borrower in respect of the Loans and the manner in which it
was applied. The entries made in such account of the Lender 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.
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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 (i) the Adjusted Multi-Currency Commitment continues to be
substantially drawn after giving effect to such repayment of Bank Revolving
Loans, and to any Bank Revolving Loans to be made, and to any Bank Letters of
Credit to be issued, under the Bank Credit Agreement substantially concurrently
with such repayment, (ii) the Available Term Loan Commitment is zero after
giving effect to any Term Loans to be made under the Term Loan Agreement
substantially concurrently with such repayment and (iii) (prior to the
consummation of the Rights Offering) if the Lender or its Affiliate (other than
REV Holdings LLC) shall have purchased Series C Preferred for an aggregate
purchase price of $50,000,000 pursuant to Section 2.6 of the Investment
Agreement, after giving effect to any purchases of Series C Preferred to be made
by the Lender or its Affiliate (other than REV Holdings LLC) substantially
concurrently with such Loan.
SECTION 3. PROVISIONS RELATING TO THE LOANS
3.1 Optional Prepayments. Subject to Section 3.3 hereof, the Borrower
may prepay the Loans, in whole or in part, at any time without premium or
penalty. Each such optional prepayment shall be applied first to accrued and
unpaid interest on the Loans, and then to the outstanding principal amount of
the Loans on a pro rata basis.
3.2 Mandatory Prepayments. Subject to Section 3.3 hereof:
(a) if, at any time, the aggregate outstanding principal
amount of the Loans exceeds the Commitment then in effect, the Borrower shall
immediately repay the principal amount of the Loans in an amount equal to such
excess.
(b) upon the effective date of any reduction in the Commitment
pursuant to Section 2.3 hereof, the Borrower shall prepay on such date the
principal amount of the Loans then outstanding in excess of the Commitment after
giving effect to such reduction.
(c) the Borrower shall make mandatory prepayments of the Loans
upon a Change of Control in accordance with Section 6.2 hereof.
(d) on the Termination Date, the Commitment shall terminate
and the Borrower shall cause all outstanding Loans, together with any interest
accrued but unpaid thereon, to be paid in full.
3.3 Restriction on Payments of Loans. Notwithstanding anything to the
contrary in this Agreement, no amount of the Loans shall be, or required
hereunder to be, repaid or prepaid prior to January 31, 2004 at any time when,
after giving effect to such repayment or prepayment, the Borrower and its
Subsidiaries would not have, on a consolidated basis, Liquidity of at least
$20,000,000 (the "Liquidity Condition"); provided, that any amount of the Loans
that otherwise would have been required to be
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repaid or prepaid prior to January 31, 2004 but for the operation of this
Section 3.3 shall be due and payable on the earlier to occur of (i) the first
Business Day on which, after giving effect to such repayment or prepayment, the
Liquidity Condition would be satisfied and (ii) January 31, 2004.
3.4 Interest Rate and Payment Dates.
(a) Each Loan shall bear interest on the unpaid principal
amount thereof at a rate per annum from time to time equal to the lesser of (i)
12.0% and (ii) the rate that is twenty-five one-hundredths of one percent
(0.25%) less than the rate payable from time to time on Eurodollar Loans (as
defined in the Bank Credit Agreement) under the Bank Credit Agreement, including
any default rate applicable thereto pursuant to Section 7.6(e) of the Bank
Credit Agreement (the rate described in this clause (ii), the "Maximum Rate").
(b) If all or a portion of any Loan, 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 the lesser of (i) 14.0% and (ii) the Maximum Rate.
(c) Interest on the outstanding principal amount of each Loan
from time to time shall accrue and be payable in arrears in cash on each
Interest Payment Date. 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.
3.5 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.
(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:
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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.
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
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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.
(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 Other Funding. As of the Borrowing Date,
(i) 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, (ii) the Available Term Loan Commitment shall be
zero, after giving effect to any Term Loans to be made under the Term Loan
Agreement substantially concurrently with such Loan and (iii) (prior to the
consummation of the Rights Offering) the Lender or its Affiliate (other than REV
Holdings LLC) shall have purchased Series C Preferred for an aggregate purchase
price of $50,000,000 pursuant to Section 2.6 of the Investment Agreement, after
giving effect to any purchases of Series C Preferred to be made by the Lender or
its Affiliate (other than REV Holdings LLC) 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(a) hereof.
(c) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to this
Agreement 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.
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(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 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.
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(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.
(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
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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. Subject to Section 3.3 hereof, 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 aggregate principal amount 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 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
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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;
(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
16
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.
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.
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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
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
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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, 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
19
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.
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:
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(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
[Supplemental Line of Credit Agreement]