Exhibit 4.34
$960,000,000
CREDIT AGREEMENT
Dated as of July 9, 2004
among
REVLON CONSUMER PRODUCTS CORPORATION
and
CERTAIN LOCAL BORROWING SUBSIDIARIES
as Borrowers
and
THE LENDERS AND ISSUING LENDERS PARTY HERETO
and
CITICORP USA, INC.
as Term Loan Administrative Agent
and
CITICORP USA, INC.
as Multi-Currency Administrative Agent
and
CITICORP USA, INC.
as Collateral Agent
* * *
UBS SECURITIES LLC
as Syndication Agent
and
CITIGROUP GLOBAL MARKETS INC.
as Sole Lead Arranger and Sole Bookrunner
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153-0119
CREDIT AGREEMENT, dated as of July 9, 2004, among REVLON
CONSUMER PRODUCTS CORPORATION, a Delaware corporation (the "Company"), the
Local Borrowing Subsidiaries (as defined below) from time to time parties
hereto, the Lenders (as defined below), the Issuing Lenders (as defined below),
CITICORP USA, INC. ("Citicorp"), as collateral agent for the Secured Parties
(as defined below) (in such capacity, the "Collateral Agent"), CITICORP, as
administrative agent for the Term Loan Lenders (as defined below) (in such
capacity, the "Term Loan Administrative Agent"), and CITICORP, as
administrative agent for the Multi-Currency Lenders (as defined below) and the
Issuing Lenders (in such capacity, the "Multi-Currency Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested that the Lenders and
Issuing Lenders make available for the purposes specified in this Agreement a
senior secured revolving credit and letter of credit facility and a senior
secured term loan facility; and
WHEREAS, the Lenders and Issuing Lenders are willing to make
available to the Company such revolving credit and letter of credit facility
and term loan facility upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
Article I
DEFINITIONS
Section 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):
"Acceptances" shall have the meaning assigned to such term in
Section 6.9(a).
"Account" shall have the meaning assigned to such term in the
UCC.
"Account Debtor" shall have the meaning assigned to such term
in the UCC.
"Act" shall have the meaning assigned to such term in Section
9.1(q).
"Administrative Agents" shall mean the collective reference
to the Term Loan Administrative Agent and the Multi-Currency Administrative
Agent; individually, an "Administrative Agent".
"Affected Loan" shall have the meaning assigned to such term
in Section 7.8(a).
"Affiliate" of any Person shall mean any other Person (other
than a Subsidiary or a Permitted Joint Venture) which, directly or indirectly,
is in control of, is controlled by, or is under common control with, the first
Person. For purposes of this definition, a Person shall be deemed to be
"controlled by" another Person if such other Person possesses, directly or
indirectly, power either to (a) vote 12.5% or more of the securities having
ordinary voting power for the election of directors of such first Person or (b)
direct or cause the direction of the management and policies of such first
Person whether by contract or otherwise.
"Affiliate Subordination Letter" shall mean the collective
reference to each Letter Agreement, to be executed and delivered pursuant
hereto, in each case by each Affiliate of the Company (other than officers and
directors of the Company) which from time to time holds any Indebtedness of the
Company or any of its Subsidiaries (other than (i) trade credit in the ordinary
course of business, (ii) any Capital Contribution Note, (iii) any M&FH Loan,
(iv) any Indebtedness permitted under Section 11.2(o) or (v) any Indebtedness
of the Company or any of its Subsidiaries of a class that is publicly held or
issued pursuant to a Rule 144A offering, including Indebtedness issued pursuant
to an Indenture), substantially in the form of Exhibit J, as the same may be
amended, supplemented or otherwise modified from time to time.
"Agent Affiliates" shall have the meaning assigned to such
term in Section 13.3(c).
"Agents" shall mean the collective reference to the
Administrative Agents and the Collateral Agent; individually, an "Agent".
"Aggregate Actual Outstanding Multi-Currency Extensions of
Credit" shall mean, at any time, the amount equal to the sum of (a) the
aggregate principal amount then outstanding of the Revolving Credit Loans, (b)
the aggregate principal amount then outstanding of Swing Line Loans, (c) the
Equivalent in Dollars of the aggregate amount then outstanding of L/C
Obligations, (d) the aggregate principal amount then outstanding of Local Loans
which are denominated in Dollars, (e) the Equivalent in Dollars of the
aggregate principal amount then outstanding of Local Loans which are
denominated in Denomination Currencies and (f) the Equivalent in Dollars of the
aggregate undiscounted face amount then outstanding of Acceptances.
"Aggregate Commitment" shall mean, at any date, the sum of
(a) the sum of (i) the Aggregate Term Loan Commitment then in effect (if any)
and (ii) the aggregate principal amount of Term Loans then outstanding and (b)
the Aggregate Multi-Currency Commitment then in effect (or, if no Aggregate
Multi-Currency Commitment is then in effect, the Aggregate Outstanding
Multi-Currency Extensions of Credit then outstanding).
"Aggregate Currency Sublimit" shall mean $30,000,000.
"Aggregate Multi-Currency Commitment" shall mean, at any
time, the aggregate amount of the Multi-Currency Commitments of all
Multi-Currency Lenders then in effect. The original amount of the Aggregate
Multi-Currency Commitments is $160,000,000, as such amount may be reduced from
time to time pursuant to the terms of this Agreement and as such amount may be
increased from time to time as part of any Facilities Increase.
"Aggregate Outstanding Multi-Currency Extensions of Credit"
shall mean, at any time, the amount equal to the sum of (a) the aggregate
principal amount then outstanding of Revolving Credit Loans, (b) the aggregate
principal amount then outstanding of Swing Line Loans, (c) the Equivalent in
Dollars of the aggregate amount then outstanding of L/C Obligations, (d) the
aggregate principal amount then outstanding of Local Loans which are
denominated in Dollars, (e) the Equivalent in Dollars of 105% of the aggregate
principal amount then outstanding of the Local Loans which are denominated in
Denomination Currencies and (f) (i) the aggregate undiscounted face amount then
outstanding of the Acceptances which are denominated in Dollars and (ii) the
Equivalent in Dollars of 105% of the aggregate undiscounted face amount then
outstanding of the Acceptances which are denominated in Denomination
Currencies.
"Aggregate Term Loan Commitment" shall mean, at any time, the
aggregate amount of the Term Loan Commitments of all Term Loan Lenders then in
effect. The original amount of the Aggregate Term Loan Commitment is
$800,000,000.
"Agreement" shall mean this Credit Agreement, as the same may
be amended, amended and restated, supplemented or otherwise modified from time
to time.
"Alternate Base Rate" for any day shall mean a rate per annum
(rounded upwards, if necessary, to the next 1/16th of 1%) equal to the greater
of (a) the rate of interest announced publicly by Citbank, N.A. in New York,
New York, from time to time, as its base rate and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%; provided, however, that,
with respect to any Local Loan which is denominated in Dollars and with respect
to which the Multi-Currency Lenders have not been requested to purchase a
participating interest pursuant to Section 6.4(a), "Alternate Base Rate" shall
mean the rate of interest from time to time publicly announced by the relevant
Local Fronting Lender as its base rate (or its equivalent thereof) for loans
denominated in Dollars at the principal lending office of such Local Fronting
Lender in the local jurisdiction for the Denomination Currency applicable to it
(or such other rate as may be mutually agreed between the relevant Borrower and
the relevant Local Fronting Lender as reflecting the Cost of Funds to such
Local Fronting Lender for the Local Loans to which such rate is applicable).
"Alternate Base Rate Loans" shall mean the Dollar Loans
hereunder at such time as such Dollar Loans are made and/or being maintained at
a rate of interest based upon the Alternate Base Rate.
"Annual Net Proceeds" shall have the meaning assigned to such
term in Section 7.3(e).
"Applicable Margin" shall mean (a) with respect to Revolving
Credit Loans, Swing Line Loans, Local Loans and Acceptances maintained as (i)
Alternate Base Rate Loans, a rate equal to 1.50% per annum and (ii) Eurodollar
Loans, Eurocurrency Loans or Local Rate Loans, a rate equal to 2.50% per annum
and (b) with respect to Term Loans maintained as (i) Alternate Base Rate Loans,
a rate equal to 5.00% per annum and (ii) Eurodollar Loans, a rate equal to
6.00% per annum.
"Application" shall mean an application, in substantially the
form of Exhibit H-2 or in such other form as the Issuing Lender for the Letter
of Credit requested thereby may specify from time to time, requesting such
Issuing Lender to open such Letter of Credit.
"Appraisal" shall mean each Initial Appraisal and each
Updated Appraisal.
"Approved Deposit Account" shall mean a Deposit Account that
is the subject of an effective Deposit Account Control Agreement and that is
maintained by any Loan Party with a Deposit Account Bank. "Approved Deposit
Account" includes all monies on deposit in a Deposit Account and all
certificates and instruments, if any, representing or evidencing such Deposit
Account.
"Approved Electronic Communications" shall mean each notice,
demand, communication, information, document and other material that any Loan
Party is obligated to, or otherwise chooses to, provide to the Administrative
Agents pursuant to any Loan Document or the transactions contemplated therein,
including (a) any supplement to the Guaranty, any joinder to the Pledge and
Security Agreement and any other written Contractual Obligation delivered or
required to be delivered in respect of any Loan Document or the transactions
contemplated therein and (b) any financial and other report, notice, request,
certificate and other information material; provided, however, that, "Approved
Electronic Communication" shall exclude (x) any Notice of Borrowing,
Application, Swing Line Loan Request, Facilities Increase Notice, Notice of
Conversion or Continuation, and any other notice, demand, communication,
information, document and other material relating to a request for a new, or a
conversion of an existing, Loan, (ii) any notice pursuant to Section 7.2 or 7.3
and any other notice relating to the payment of any principal or other amount
due under any Loan Document prior to the scheduled date therefor, (iii) any
notice of any Default or Event of Default (including any Notice of Actionable
Default) and (iv) any notice, demand, communication, information, document and
other material required to be delivered to satisfy any of the conditions set
forth in Article IX or Section 5.2 or any other condition to any borrowing or
other extension of credit hereunder or any condition precedent to the
effectiveness of this Agreement.
"Approved Electronic Platform" shall have the meaning
specified in Section 13.3(a).
"Approved Securities Intermediary" shall mean a Securities
Intermediary or Commodity Intermediary selected by a Loan Party and reasonably
satisfactory to the Multi-Currency Administrative Agent.
"Arranger" shall mean Citigroup Global Markets Inc., as sole
lead arranger and sole bookrunner.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance, substantially in the form of Exhibit L.
"Availability Reserve" shall mean, as of five Business Days
after the date of written notice of any determination thereof to the Company by
the Multi-Currency Administrative Agent (which notice shall include a
reasonable description of the basis for such determination), such amounts as
the Multi-Currency Administrative Agent may from time to time establish against
the Multi-Currency Facility, in the Multi-Currency Administrative Agent's sole
discretion exercised reasonably and in accordance with customary business
practices for comparable asset-based transactions, in order to (a) preserve the
value of the Multi-Currency Facility Collateral or the Collateral Agent's Lien
thereon or (b) provide for the payment of unanticipated liabilities of any Loan
Party affecting the Collateral arising after the Closing Date; provided,
however, that no such Availability Reserve will be established with respect to
such matters that have already been taken into account in the calculation of
the Borrowing Base or the determination of any Eligibility Reserve or
Designated Eligible Obligations Reserve.
"Available Multi-Currency Commitment" shall mean, at any
time, (a) the lesser of (i) the Aggregate Multi-Currency Commitment in effect
at such time and (ii) the Borrowing Base in effect at such time (based on the
Borrowing Base Certificate most recently delivered to the Multi-Currency
Administrative Agent pursuant to Section 10.17, after giving effect to any
Eligibility Reserve or Designated Eligible Obligations Reserve in effect at
such time, whether or not reflected on such Borrowing Base Certificate) minus
(b) the Aggregate Outstanding Multi-Currency Extensions of Credit then
outstanding minus (c) any Availability Reserve in effect at such time.
"Bailee's Letter" shall mean a letter in form and substance
reasonably acceptable to the Multi-Currency Administrative Agent and executed
by any Person (other than the Company or any Subsidiary Guarantor) that is in
possession of Inventory or Equipment included in the Collateral on behalf of
the Company or any Subsidiary Guarantor pursuant to which such Person
acknowledges, among other things, the Collateral Agent's Lien with respect
thereto.
"Bankruptcy Code" shall mean title 11, United States Code.
"Benefitted Lender" shall have the meaning assigned to such
term in Section 14.7(b).
"Borrower" shall mean the Company or a Local Borrowing
Subsidiary, as the context shall require; collectively, the "Borrowers".
"Borrowing Base" shall mean, at any time, the amount equal
to:
(a) 85% of the Equivalent in Dollars of the face amount of
all Eligible Receivables (calculated net of all finance charges, late fees and
other fees that are unearned, sales, excise or similar taxes, and credits or
allowances granted at such time with respect to such Eligible Receivables);
plus
(b) with respect to Eligible Inventory (valued, in each case,
at the lower of a perpetual inventory at standard cost and market basis), the
amount equal to:
(i) the lesser of (A) 100% or (B) the Net Orderly Liquidation
Percentage of the Equivalent in Dollars of the value of all Eligible Prime
Finished Goods; plus
(ii) the lesser of (A) 100% or (B) the Net Orderly
Liquidation Percentage of the Equivalent in Dollars of the value of all
Eligible Tote Stores Inventory; plus
(iii) the lesser of (A) 35% or (B) the Net Orderly
Liquidation Percentage of the Equivalent in Dollars of the value of all
Eligible Special Markets Inventory; plus
(iv) the lesser of (A) 75% or (B) the Net Orderly Liquidation
Percentage of the Equivalent in Dollars of the value of all Eligible
Work-in-Process Inventory; plus
(v) the lesser of (A) 15% or (B) the Net Orderly Liquidation
Percentage of the Equivalent in Dollars of the value of all Eligible Raw
Materials; plus
(vi) the lesser of (A) 10% or (B) the Net Orderly Liquidation
Percentage of the Equivalent in Dollars of the value of all Eligible Bulk
Inventory; plus
(c) the lesser of (A) the sum of (1) 75% of the Net Orderly
Liquidation Value of Eligible Equipment at such time plus (2) 60% of the
Mortgage Value of Eligible Real Property at such time and (B) $40,000,000;
minus
(d) any Eligibility Reserve in effect at such time; minus
(e) any Designated Eligible Obligations Reserve in
effect at such time;
provided, however, that each advance rate percentage set forth above is subject
to reduction (or, if reduced, increase up to the percentage set forth above)
upon five Business Days prior written notice to the Company by the
Multi-Currency Administrative Agent (which notice shall include a reasonable
description of the basis for any such reduction) in its sole discretion
exercised reasonably and in accordance with customary business practices for
comparable asset-based transactions.
"Borrowing Base Certificate" shall mean a certificate of the
Company substantially in the form of Exhibit C (Form of Borrowing Base
Certificate).
"Business Day" shall mean a day other than a Saturday, Sunday
or other day on which commercial banks in New York, New York (or, in the case
of any Local Loan or Acceptance, the location of the funding office of the
relevant Local Fronting Lender) are authorized or required by law to close.
"Capital Contribution" shall mean the receipt by the Company
of cash from a source outside of the Company and its Subsidiaries which is
either (a) recorded as an addition to the Company's stockholders' equity in
accordance with GAAP (whether or not in exchange for issuance of equity of the
Company to Revlon) or (b) subject to the terms and conditions of, and evidenced
by, a Capital Contribution Note.
"Capital Contribution Note" shall mean any promissory note,
substantially in the form of Exhibit O, made by the Company in favor of any
Affiliate thereof evidencing Indebtedness permitted pursuant to Section 11.2(e)
of this Agreement, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms hereof.
"Capital Expenditures" shall mean, for any period, the amount
equal to all expenditures (by the expenditure of cash or the incurrence of
Indebtedness) made by the Company and its Subsidiaries during such period in
respect of the purchase or other acquisition or improvement of any fixed or
capital asset and any other amounts which would, in accordance with GAAP, be
set forth as capital expenditures or purchases of permanent displays on the
consolidated statement of cash flows of the Company and its Subsidiaries for
such period.
"Capital Lease" means, with respect to any Person, any lease
of, or other arrangement conveying the right to use, property by such Person as
lessee that would be accounted for as a capital lease on a balance sheet of
such Person prepared in conformity with GAAP.
"Capital Lease Obligations" means, with respect to any
Person, the capitalized amount of all consolidated obligations of such Person
or any of its Subsidiaries under Capital Leases.
"Cash Collateral Account" shall mean any Deposit Account or
Securities Account that is (a) established as a "Cash Collateral Account" for
the purposes expressly contemplated under the Loan Documents by any Agent from
time to time to receive cash and Cash Equivalents (or purchase cash or Cash
Equivalents with funds received) from the Company or its Subsidiaries or
Persons acting on their behalf pursuant to the Loan Documents, (b) with such
depositaries and securities intermediaries as the Multi-Currency Administrative
Agent or the Term Loan Administrative Agent, as applicable, may determine in
its sole discretion exercised reasonably, (c) in the name of the Multi-Currency
Administrative Agent or the Term Loan Administrative Agent, as applicable
(although such account may also have words referring to the Company and the
account's purpose), (d) under the control of the Collateral Agent and (e) in
the case of a Securities Account, with respect to which the Collateral Agent,
at the direction of the Multi-Currency Administrative Agent or Term Loan
Administrative Agent, as the case may be, shall be the Entitlement Holder and
the only Person authorized to give Entitlement Orders with respect thereto;
provided, however, that no Cash Collateral Account shall be established in the
Commonwealth of Australia.
"Cash Concentration Account" shall mean the deposit account
no. 3057-3774 at Citibank, N.A. designated the "Citicorp USA, Inc. F/A/O Revlon
Consumer Products Corporation Concentration Account", which account shall be
under the Collateral Agent's control.
"Cash Equivalents" shall mean (a) securities with maturities
of one year or less from the date of acquisition issued or fully guaranteed or
insured by the United States federal government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities of one
year or less from the date of acquisition and overnight bank deposits of any
Lender or of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of clause (b) of this definition, having a
term of not more than 30 days with respect to securities issued or fully
guaranteed or insured by the United States federal government, (d) commercial
paper of a domestic issuer rated at least A-2 by S&P or P-2 by Moody's, (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the
United States or by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by
S&P or A by Moody's, (f) securities with maturities of one year or less from
the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition, (g) shares of money market mutual or similar funds having assets in
excess of $250,000,000 and which invest exclusively in assets satisfying the
requirements of clause (a) of this definition or (h) shares of money market
mutual or similar funds having assets in excess of $500,000,000 and which
invest exclusively in assets satisfying the requirements of clauses (b) through
(f) of this definition.
"Cash Interest Expense" shall mean, with respect to any
Person for any period, the amount set forth opposite the caption "interest" (or
any like caption) under the heading "supplemental schedule of cash flow
information" (or any like heading) in the consolidated financial statements of
such Person and its Subsidiaries for such period.
"Citicorp" shall have the meaning specified in the preamble
to this Agreement.
"Closing Date" shall have the meaning assigned to such term
in Section 9.1.
"Code" shall mean the Internal Revenue Code of 1986, as
hereafter amended from time to time.
"Collateral" shall mean all property and interests in
property and proceeds thereof now owned or hereafter acquired by any Loan Party
in or upon which a Lien is granted under any Security Document.
"Collateral Agent" shall have the meaning specified in the
preamble to this Agreement, and shall include any successor "Collateral Agent"
pursuant to Section 13.7.
"Commercial Letter of Credit" shall have the meaning assigned
to such term in Section 5.1.
"Commitment" shall mean the Aggregate Term Loan Commitment or
the Aggregate Multi-Currency Commitment, as the context shall require;
collectively, the "Commitments".
"Commitment Fee Rate" shall mean 1/2 of 1% per annum.
"Commitment Percentage" shall mean, as to any Lender, its
Term Loan Percentage or its Multi-Currency Commitment Percentage as the context
shall require.
"Commitment Period" shall mean the period from (and
including) the Closing Date to (but not including) the earlier of (a) the
Multi-Currency Termination Date and (b) the date upon which the Aggregate
Multi-Currency Commitment is terminated.
"Commodity Account" shall have the meaning assigned to such
term in the UCC.
"Commodity Intermediary" shall have the meaning assigned to
such term in the UCC.
"Commonly Controlled Entity" shall mean an entity, whether or
not incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Company and which is treated as a single employer under Section 414 of the
Code.
"Company" shall have the meaning assigned to such term in the
preamble hereto.
"Company Tax Sharing Agreement" shall mean the Tax Sharing
Agreement, dated as of March 26, 2004, among Revlon, the Company and certain of
its Subsidiaries, as amended, supplemented or otherwise modified from time to
time in accordance with the provisions of Section 11.14.
"Consolidated Current Assets" shall mean, with respect to any
Person at any date, in accordance with GAAP, the total consolidated current
assets on a consolidated balance sheet of such Person and its Subsidiaries less
any cash and Cash Equivalents.
"Consolidated Current Liabilities" shall mean, with respect
to any Person at any date, in accordance with GAAP, the total current
liabilities on a consolidated balance sheet of such Person and its Subsidiaries
less any short-term borrowings and the current portion of any long-term
Indebtedness.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for
any period for the Company and its Subsidiaries on a consolidated basis, the
ratio of (a) EBITDA for such period, minus Capital Expenditures paid in cash
during such period (provided, however, that, for the periods of four
consecutive fiscal quarters ended June 30, 2004, September 30, 2004 and
December 31, 2004, respectively, Capital Expenditures paid in cash for
purchases of permanent displays by the Company and its Subsidiaries shall be
deemed to be $50,000,000 for each such period) to (b) Cash Interest Expense for
such period (provided, however, that, for the periods of four consecutive
fiscal quarters ended September 30, 2004, December 31, 2004 and March 31, 2005,
respectively, the Cash Interest Expense shall be determined on a pro forma
basis as if the Exchange and the refinancing of the Existing Agreement and the
Designated Senior Secured Notes contemplated by this Agreement had occurred at
the beginning of each such period).
"Consolidated Net Income" shall mean, for any period, the
amount which would be set forth as net income on a consolidated statement of
operations of the Company and its Subsidiaries determined on a consolidated
basis in accordance with GAAP for such period.
"Contingent Obligation" as to any Person shall mean any
obligation of such Person guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends, letters of credit or other obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
"keep-well" or "make-well" agreement, guarantee of return on equity or other
obligation of such Person, whether or not contingent, (a) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (c) to purchase, sell or lease property, or to purchase or
sell securities or services, primarily for the purpose of assuring the obligee
under any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure or hold harmless
the obligee under such primary obligation against loss in respect thereof.
"Continuing Director" shall mean a natural person who (a) is
a member of the board of directors of the Company on the date hereof or (b)
becomes a member of the board of directors of the Company after the date hereof
and, when first elected to the board of directors after the date hereof, was
nominated for such position by at least 66-2/3% of the directors then
constituting Continuing Directors.
"Contractual Obligation" of any Person shall mean 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, instrument or undertaking to which such Person is a party
or by which it or any of its material property is bound.
"Control Account" shall mean a Securities Account or
Commodity Account that is the subject of an effective Securities Account
Control Agreement and that is maintained by any Loan Party with an Approved
Securities Intermediary. "Control Account" includes all Financial Assets held
in a Securities Account or a Commodity Account and all certificates and
instruments, if any, representing or evidencing the Financial Assets contained
therein.
"Copyright" shall have the meaning assigned to such term in
the Pledge and Security Agreement.
"Cost of Funds" shall mean, with respect to any Local
Fronting Lender, the rate of interest which reflects the cost to such Local
Fronting Lender of obtaining funds of the type utilized to fund any extension
of credit to the relevant Borrower hereunder in the local market for the period
during which such extension of credit is outstanding.
"Cross Default" of any Person shall mean (i) default in the
payment of any amount when due (whether at maturity or by acceleration) on any
of its Indebtedness (other than any such default in respect of any Loan, any
Note, any Draft or any L/C Reimbursement Obligation) or in the payment of any
matured Contingent Obligation in respect of any Indebtedness of any other
Person (except for any such payments on account of any such Indebtedness and
Contingent Obligations in an aggregate principal amount at any one time
outstanding of up to $5,000,000 (or, with respect to any other currency, the
Equivalent thereof)) or (ii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or Contingent
Obligation (except for any such Indebtedness and Contingent Obligations in an
aggregate principal amount at any one time outstanding of up to $5,000,000 (or,
with respect to any other currency, the Equivalent thereof)) or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Contingent Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due or to be required to be redeemed or repurchased
prior to its stated maturity or such Contingent Obligation to become payable.
"Currency Sublimit" shall mean, with respect to any Local
Fronting Lender, the amount from time to time equal to the amount of Dollars
set forth under the heading "Currency Sublimit" on Schedule III, as the same
may be or may be deemed to be modified from time to time in accordance with the
terms of this Agreement; collectively as to all Local Fronting Lenders, the
"Currency Sublimits".
"Customary Permitted Liens" shall mean Liens permitted by
clauses (a) to (e) of Section 11.3.
"Default" shall mean any of the events specified in Article
XII, whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Default Rate" shall have the meaning assigned to such term
in Section 7.5(e).
"Denomination Currency" shall mean each currency set forth in
Schedule III, as such Schedule III may be amended, supplemented or otherwise
modified from time to time.
"Deposit Account" shall have the meaning assigned to such
term in the UCC.
"Deposit Account Bank" shall mean a financial institution
selected by a Loan Party and reasonably satisfactory to the Multi-Currency
Administrative Agent.
"Deposit Account Control Agreement" shall have the meaning
assigned to such term in the Pledge and Security Agreement.
"Deposit Requirement" shall have the meaning assigned to such
term in Section 5.8(a).
"Designated Eligible Obligations" shall mean, at any time,
each of the following that are now or hereafter designated by the Company
pursuant to Section 10.1 of the Intercreditor Agreement (which designation
shall not have been revoked by the Company on or prior to such time thereunder)
to be secured by the Collateral: (i) working capital Indebtedness of any
Foreign Subsidiary or a foreign branch of a Domestic Subsidiary principally
doing business outside of the United States permitted under Section 11.2(d) in
an aggregate principal amount outstanding not to exceed $30,000,000 at any time
(and all obligations in respect thereof) and, without duplication, any
Contingent Obligation of the Company in respect thereof, and obligations in
respect of any refinancing or replacement of any such working capital
Indebtedness (including any such working capital indebtedness owing to Citicorp
or any of its Affiliates and guaranteed by the Company), (ii) obligations of
the Company or any of its Subsidiaries in respect of Hedging Contracts set
forth on Schedule 1.1 and secured by the Liens securing the indebtedness under
the Existing Agreement and outstanding on the Closing Date, (iii) obligations
of the Company or any of its Subsidiaries in respect of Hedging Contracts
provided by a Lender, any affiliate of a Lender or any other Person reasonably
acceptable to the Administrative Agent for the Lenders whose Collateral will
secure such Designated Eligible Obligations on a first priority basis after the
Closing Date, in each case, to the extent such obligations are permitted under
this Agreement, and (iv) obligations of the Company or any of its Subsidiaries
in respect of treasury, depository, overdraft and other cash management
arrangements maintained with any Lender, any Affiliate of a Lender or any other
Person reasonably acceptable to the Administrative Agent for the Lenders whose
Collateral will secure such Designated Eligible Obligations on a first-priority
basis, in each case, the holders of which Indebtedness or their representatives
have received a copy of the Intercreditor Agreement and the Pledge and Security
Agreement from the Company, prior to, or concurrently with, such designation.
"Designated Eligible Obligations Reserves" shall mean as of
five Business Days after the date of written notice of any determination
thereof to the Company by the Multi-Currency Administrative Agent (which notice
shall include a reasonable description of the basis for such determination),
such amounts as the Multi-Currency Administrative Agent may from time to time
establish against the Multi-Currency Facility, in the Multi-Currency
Administrative Agent's sole discretion exercised reasonably and in accordance
with customary business practices for comparable asset-based transactions, in
respect of Designated Eligible Obligations described in clauses (i), (ii) and
(iii) of the definition thereof and, during a Liquidity Event Period or if an
Event of Default has occurred and is continuing, clause (iv) of the definition
thereof, in each case, that are secured on a first-priority basis by the
Multi-Currency Facility Collateral pursuant to the Intercreditor Agreement.
"Designated Multi-Currency Administrative Agent" shall mean,
(i) until all Payment Obligations arising under the Multi-Currency Facility
have been Fully Satisfied, the Multi-Currency Administrative Agent and (ii) at
any time thereafter, the Term Loan Administrative Agent.
"Designated Senior Secured Indenture" shall mean the
Indenture, dated as of November 26, 2001, between the Company and Wilmington
Trust Company, relating to the Designated Senior Secured Notes and (b) each
instrument, document and agreement delivered in connection therewith, as the
same has been amended and supplemented through the date hereof and may be
further amended, supplemented or otherwise modified from time to time to the
extent permitted by Section 11.9.
"Designated Senior Secured Notes" shall mean the notes, in an
aggregate principal amount not to exceed $363,000,000, issued by the Company
pursuant to the Designated Senior Secured Indenture, as such Designated Senior
Secured Notes may be amended, supplemented or otherwise modified from time to
time to the extent permitted by Section 11.9.
"Designated Term Loan Administrative Agent" shall mean, (i)
until all Payment Obligations arising under the Term Loan Facility have been
Fully Satisfied, the Term Loan Administrative Agent and (ii) at any time
thereafter, the Multi-Currency Administrative Agent.
"Disposition Asset" shall mean any asset, brand or Subsidiary
listed on Schedule 11.6; provided, however, that any such asset, brand or
Subsidiary listed on Schedule 11.6 shall cease to constitute a "Disposition
Asset" from and after the date upon which the Company notifies the
Administrative Agents in writing that such asset, brand or Subsidiary is to
cease to constitute a "Disposition Asset".
"Dollar Loan" shall mean any Loan which is denominated in
Dollars; collectively, the "Dollar Loans".
"Dollars" and "$" shall mean dollars in lawful currency of
the United States of America.
"Domestic Subsidiary" shall mean each Subsidiary of the
Company that is organized under the laws of a state within the United States or
the District of Columbia.
"Draft" shall mean a draft that is (a) in a form customary in
the relevant jurisdiction for acceptance and discount as a bankers' acceptance,
(b) otherwise reasonably acceptable in form and substance to the relevant Local
Fronting Lender, (c) stated to mature on the date which is 30, 60, 90 or 180
days after the date thereof (or such other maturity as is agreeable to the
relevant Local Fronting Lender, in its sole discretion) and (d) duly completed
and executed by the relevant Local Borrowing Subsidiary.
"Early Termination Date" shall mean the earliest of (a)
October 31, 2005, if the 8-1/8% Senior Notes Redemption has not occurred on or
before such date, (b) July 31, 2006, if the 9% Senior Notes Redemption has not
occurred on or before such date and (c) October 30, 2007, if the Subordinated
Notes Redemption has not occurred on or before such date.
"EBITDA" shall mean, for any period, the amount equal to:
(a) Consolidated Net Income for such period;
(b) plus (to the extent deducted in the determination of
Consolidated Net Income and without duplication) the sum of (i) tax expense on
account of such period, (ii) Interest Expense (including, without limitation,
fees, commissions and other charges associated with standby letters of credit
and other financing charges) for such period, (iii) depreciation and
amortization expense for such period, (iv) any losses in respect of currency
fluctuations for such period, (v) any losses in respect of equity earnings for
such period, (vi) non-cash write-offs in respect of unamortized debt issuance
costs, (vii) other non-cash charges (excluding, however, any non-cash charge
which requires an accrual of, or a reserve for, cash disbursements at any time
or could reasonably be expected to become a cash disbursement at any time),
(viii) restructuring charges and other non-recurring charges and expenses taken
in such period to the extent that such other charges and expenses are incurred
as a result of the implementation of the Company's growth plan and are recorded
in the third or fourth fiscal quarter of 2003 in an aggregate amount of
$10,000,000, (ix) non-cash charges taken by the Company in respect of the
issuance of Stock, Stock Equivalents or stock appreciation rights of Revlon
based on compensation to directors or employees of the Company or its
Subsidiaries for compensation or for repricing of outstanding stock options of
such directors or employees, (x) any losses from the Specified Dispositions,
(xi) any losses from asset sales outside of the ordinary course of business
permitted to be consummated under this Agreement, (xii) non-cash goodwill or
asset impairment charges for any period after December 31, 2003, (xiii) any
losses resulting from the satisfaction of Indebtedness prior to the maturity
thereof in connection with the Exchange and the consummation of the
transactions contemplated (A) under this Agreement, (B) to occur on the Closing
Date and (C) any refinancing of Indebtedness permitted under this Agreement,
(xiv) non-recurring restructuring charges in an aggregate amount not to exceed
$10,000,000 during the term of this Agreement (specifically identified and
itemized by the Company at the time taken, whether or not characterized as a
restructuring charge in accordance with GAAP) and (xv) amortization or writeoff
of fees, charges and other expenses incurred in connection with any proposed
refinancing of Indebtedness that is not consummated;
(c) minus (to the extent included in the determination of
Consolidated Net Income and without duplication) the sum of (i) interest income
for such period, (ii) extraordinary gains for such period, (iii) any gains in
respect of currency fluctuations for such period, (iv) any gains in respect of
equity earnings for such period, (v) any gains from Specified Dispositions, and
(vi) any gains from asset sales outside of the ordinary course of business;
provided, however, that, for purposes of the calculation of the Consolidated
Fixed Charge Coverage Ratio and the Senior Secured Leverage Ratio, the EBITDA
of any Person acquired by the Company or any of its Subsidiaries during the
relevant calculation period shall be included, on a pro forma basis, in the
EBITDA of the Company as if such Person had been acquired on the first day of
the calculation period.
"8-1/8% Senior Notes" shall mean the notes in an aggregate
principal amount not to exceed $116,218,000 issued by the Company pursuant to
the 8-1/8% Senior Notes Indenture, as such 8-1/8% Senior Notes may be amended,
supplemented or otherwise modified from time to time to the extent permitted by
Section 11.9.
"8-1/8% Senior Notes Indenture" shall mean the collective
reference to (a) the Indenture, dated as of February 1, 1998, between the
Company and U.S. Bank Trust National Association (formerly known as First Trust
National Association), relating to the 8-1/8% Senior Notes and (b) each
instrument, document and agreement delivered in connection therewith, as each
of the foregoing has been amended and supplemented through the date hereof and
may be further amended, supplemented or otherwise modified from time to time to
the extent permitted by Section 11.9.
"8-1/8% Senior Notes Redemption" shall mean the redemption,
repurchase, defeasance or repayment by the Company of all of the outstanding
principal amount of the 8-1/8% Senior Notes with (a) proceeds of Capital
Contributions (or contributions of 8-1/8% Senior Notes), whether or not in
exchange for equity, from Revlon, (b) proceeds of Indebtedness of the Company
that is permitted to be incurred under Section 11.2(b), (c) Excess Cash Flow as
permitted under Section 11.9(c)(iv) or (d) funds from other sources acceptable
to the Required Lenders.
"Eligibility Reserves" shall mean, effective as of five
Business Days after the date of written notice of any determination thereof to
the Company by the Multi-Currency Administrative Agent (which notice shall
include a reasonable description of the basis for such determination), such
amounts as the Multi-Currency Administrative Agent, in its sole discretion
exercised reasonably and in accordance with customary business practices for
comparable asset-based transactions, may from time to time establish, against
the gross amounts of Eligible Receivables, Eligible Inventory, Eligible
Equipment and Eligible Real Property to reflect risks or contingencies arising
after the Closing Date that may adversely affect any one or more class of such
items and that have not already been taken into account in the calculation of
the Borrowing Base.
"Eligible Assignee" shall mean (a) a Lender or an Affiliate
or Related Fund of any Lender, (b) a commercial bank having total assets whose
Equivalent in Dollars exceeds $5,000,000,000, (c) a finance company, insurance
company or any other financial institution or Fund, in each case reasonably
acceptable to the Administrative Agents and regularly engaged in making,
purchasing or investing in loans and having a net worth, determined in
accordance with GAAP, whose Equivalent in Dollars exceeds $250,000,000 (or, to
the extent net worth is less than such amount, a finance company, insurance
company, other financial institution or Fund, reasonably acceptable to the
Administrative Agents and the Company) or (d) a savings and loan association or
savings bank organized under the laws of the United States or any state thereof
having a net worth, determined in accordance with GAAP, whose Equivalent in
Dollars exceeds $250,000,000.
"Eligible Bulk Inventory" shall mean the Eligible Inventory
of the Company or any Subsidiary Guarantor consisting of "Bulk," as defined in
Schedule IV.
"Eligible Equipment" shall mean the Equipment of the Company
or any Subsidiary Guarantor (a) that is owned solely by the Company or such
Subsidiary Guarantor, (b) with respect to which the Collateral Agent has a
valid, perfected and enforceable first-priority Lien (subject to Customary
Permitted Liens and other Liens approved by the Multi-Currency Administrative
Agent), (c) with respect to which no representation or warranty contained in
any Loan Document has been breached (unless otherwise agreed by the
Multi-Currency Administrative Agent), (d) that is not, in the Multi-Currency
Administrative Agent's sole discretion exercised reasonably and in accordance
with customary business practices for comparable asset-based transactions,
obsolete or unmerchantable and (e) that the Multi-Currency Administrative Agent
deems to be Eligible Equipment, based on such credit and collateral
considerations as the Multi-Currency Administrative Agent may, in its sole
discretion exercised reasonably and in accordance with customary business
practices for comparable asset-based transactions, deem appropriate. No
Equipment of the Company or any Subsidiary Guarantor shall be Eligible
Equipment if such Equipment is located, stored, used or held at the premises of
a third party unless (i) the Multi-Currency Administrative Agent shall have
received a Landlord Waiver or Bailee's Letter or (ii) an Eligibility Reserve
reasonably satisfactory to the Multi-Currency Administrative Agent shall have
been established with respect thereto; provided, however, that no such
exclusion from Eligible Equipment on the basis of this sentence shall be in
effect during the first 30 days after the Closing Date.
"Eligible Finished Goods" shall mean the Eligible Inventory
of the Company or any Subsidiary Guarantor that is classified, consistent with
past practice, on the Company's or such Subsidiary Guarantor's accounting
system as "finished goods" (including tote).
"Eligible Insurer" shall mean an insurance company which (a)
is rated at least "A" by A.M. Best Company, (b) has an equivalent rating from
another rating agency of internationally recognized standing or (c) otherwise
is reasonably acceptable to the Administrative Agents.
"Eligible Inventory" shall mean the Inventory of the Company
or any Subsidiary Guarantor (other than any Inventory that has been consigned
by the Company or such Subsidiary Guarantor) including raw materials,
work-in-process, finished goods (including tote), parts and supplies (a) that
is owned solely by the Company or such Subsidiary Guarantor, (b) with respect
to which the Collateral Agent has a valid, perfected and enforceable
first-priority Lien (subject to Customary Permitted Liens and other Liens
approved by the Multi-Currency Administrative Agent), (c) with respect to which
no representation or warranty contained in any Loan Document has been breached
(unless otherwise agreed by the Multi-Currency Administrative Agent), (d) that
is not, in the Multi-Currency Administrative Agent's sole discretion exercised
reasonably and in accordance with customary business practices for comparable
asset-based transactions, obsolete or unmerchantable (after taking into
account, without duplication, slow-moving obsolete inventory deducted from the
calculation of the perpetual inventory at standard cost of such Inventory, as
applicable), (e) with respect to which (in respect of any Inventory labeled
with a brand name or trademark and sold by the Company or any Subsidiary
Guarantor pursuant to a trademark owned by the Company or such Subsidiary
Guarantor or a license granted to the Company or such Subsidiary Guarantor) the
Collateral Agent would have rights under such trademark or license pursuant to
the Pledge and Security Agreement or other agreement reasonably satisfactory to
the Multi-Currency Administrative Agent to sell such Inventory in connection
with a liquidation thereof, (f) that is located in the United States, the
United Kingdom or, if acceptable to the Multi-Currency Administrative Agent in
its sole discretion exercised reasonably and in accordance with customary
business practices for comparable asset-based transactions, Canada and other
jurisdictions (provided, however, that, without the consent of the Required
Multi-Currency Lenders, the aggregate amount of the Borrowing Base consisting
of Eligible Inventory and Eligible Receivables under clause (f)(ii) of the
definition of "Eligible Receivables" attributable to such other jurisdictions,
except Canada, shall not exceed $30,000,000 at any time) and (g) that the
Multi-Currency Administrative Agent deems to be Eligible Inventory based on
such credit and collateral considerations as the Multi-Currency Administrative
Agent may, in its sole discretion exercised reasonably and in accordance with
customary business practices for comparable asset-based transactions, deem
appropriate. No Inventory of the Company or any Subsidiary Guarantor shall be
Eligible Inventory if such Inventory consists of (i) goods returned or rejected
by customers other than goods that are undamaged or are resalable in the normal
course of business, (ii) goods to be returned to suppliers, (iii) goods in
transit or (iv) goods located, stored, used or held at the premises of a third
party unless (A) the Multi-Currency Administrative Agent shall have received a
Landlord Waiver or Bailee's Letter or (B) an Eligibility Reserve reasonably
satisfactory to the Multi-Currency Administrative Agent shall have been
established with respect thereto; provided, however, that no such exclusion
from Eligible Inventory on the basis of this clause (iv) shall be in effect
during the first 30 days after the Closing Date.
"Eligible Prime Finished Goods" shall mean Eligible Finished
Goods of the Company or any Subsidiary Guarantor (other than Eligible Special
Markets Inventory and Eligible Tote Stores Inventory) that are not
discontinued, damaged or returned and unsuitable for sale to the Company's or
such Subsidiary Guarantor's primary retail customers.
"Eligible Raw Materials" shall mean the Eligible Inventory of
the Company or any Subsidiary Guarantor (other than Eligible Bulk Inventory)
that is classified, consistent with past practice, on the Company's or such
Subsidiary Guarantor's accounting system as "raw materials," "components,"
"supplies" or "packaging".
"Eligible Real Property" shall mean any parcel of owned Real
Property in the United States owned by the Company or any Subsidiary Guarantor
as to which each of the following conditions has been satisfied at such time:
(a) (i) a valid and enforceable first-priority Lien on such
parcel of Real Property (subject to Customary Permitted Liens and other Liens
approved by the Multi-Currency Administrative Agent) shall have been granted by
the Company or such Subsidiary Guarantor in favor of the Collateral Agent
pursuant to a Mortgage in form and substance reasonably satisfactory to the
Multi-Currency Administrative Agent and (ii) such Lien shall be in full force
and effect in favor of the Collateral Agent at such time;
(b) except as otherwise permitted by the Multi-Currency
Administrative Agent, the Multi-Currency Administrative Agent and, where
applicable, the relevant title insurance company shall have received in form
and substance reasonably satisfactory to the Multi-Currency Administrative
Agent, all Mortgage Supporting Documents in respect of such parcel;
(c) the Multi-Currency Administrative Agent shall have
received an Appraisal with respect to such parcel of Real Property in form and
substance reasonably satisfactory to the Multi-Currency Administrative Agent
and performed by an appraiser that is reasonably satisfactory to the
Multi-Currency Administrative Agent;
(d) no condemnation or taking by eminent domain shall have
occurred nor shall any notice of any pending or threatened condemnation or
other proceeding against such parcel of Real Property been delivered to the
owner or lessee of such parcel of Real Property that would materially adversely
affect the use, operation or value of such parcel of Real Property; and
(e) the mortgagor under the relevant Mortgage encumbering
such parcel of Real Property shall comply in all material respects with the
terms of such Mortgage (taking into account any applicable grace periods
provided therein);
provided, however, that no such exclusion from Eligible Real Property on the
basis of this definition shall be in effect with respect to the Real Property
described in paragraph 9 of Schedule 10.16 during the first 30 days (in the
case of clause (a) above) and the first 60 days (in the case of clause (b),
(c), (d) or (e)) after the Closing Date.
"Eligible Receivable" shall mean the gross outstanding
balance of each Account of the Company or any Subsidiary Guarantor arising out
of the sale of merchandise, goods or services in the ordinary course of
business, that is made by the Company or such Subsidiary Guarantor to a Person
that is not an Affiliate of the Company and that constitutes Multi-Currency
Collateral in which the Collateral Agent has a valid, perfected and enforceable
first priority Lien; provided, however, that an Account shall not be an
"Eligible Receivable" if any of the following shall be true:
(a) (i) the sale represented by such Account (other than with
respect to seasonal dating or promotional sales) is to an Account Debtor and
such Account is the earlier of (x) 90 days past the original invoice date
thereof and (y) 60 days past due or (ii) the sale represented by such Account
is with respect to seasonal dating or promotional sales and such Account is 120
days past the original invoice date thereof; or
(b) any representation or warranty contained in this
Agreement or any other Loan Document with respect to such specific Account is
not true and correct with respect to such Account (unless otherwise agreed by
the Multi-Currency Administrative Agent); or
(c) the Account Debtor on such Account has disputed liability
or made any claim with respect to any other Account due from such Account
Debtor to the Company or such Subsidiary Guarantor but only to the extent of
such dispute or claim; or
(d) the Account Debtor on such Account has (i) filed a
petition for bankruptcy or any other relief under the Bankruptcy Code or any
other law relating to bankruptcy, insolvency, reorganization or relief of
debtors, (ii) made an assignment for the benefit of creditors, (iii) had filed
against it any petition or other application for relief under the Bankruptcy
Code or any such other law, (iv) failed, suspended business operations, become
insolvent, called a general meeting of its creditors for the purpose of
obtaining any financial concession or accommodation or (v) had or suffered a
receiver or a trustee to be appointed for all or a significant portion of its
assets or affairs and, in each case, such event is continuing; or
(e) the Account Debtor on such Account or any of its
Affiliates is also a supplier to or creditor of the Company or such Subsidiary
Guarantor unless such supplier or creditor has executed a no offset letter
satisfactory to the Multi-Currency Administrative Agent, in its sole discretion
exercised reasonably and in accordance with customary business practices for
comparable asset-based transactions; or
(f) the sale represented by such Account is to an Account
Debtor with a principal place of business located outside the United States or
the United Kingdom, unless (i) the sale is on letter of credit or acceptance
terms acceptable to the Multi-Currency Administrative Agent, in its sole
discretion exercised reasonably and in accordance with customary business
practices for comparable asset-based transactions and (A) such letter of credit
names the Collateral Agent as beneficiary for the benefit of the Secured
Parties or (B) the issuer of such letter of credit has consented to the
assignment of the proceeds thereof to the Collateral Agent or (ii) such sale is
to an Account Debtor located in another jurisdiction acceptable to the
Multi-Currency Administrative Agent in its sole discretion exercised reasonably
and in accordance with customary business practices for comparable asset-based
transactions (provided, however, that, without the consent of the Required
Multi-Currency Lenders, the aggregate amount of the Borrowing Base consisting
of Eligible Inventory and Eligible Receivables under this clause (ii)
attributable to such other jurisdictions, except Canada, shall not exceed
$30,000,000 at any time); or
(g) the sale to such Account Debtor on such Account is on a
bill on hold, guaranteed sale, sale and return, sale on approval or consignment
basis; or
(h) such Account is subject to a Lien in favor of any Person
other than the Collateral Agent for the benefit of the Secured Parties (other
than Customary Permitted Liens and other Liens approved by the Multi-Currency
Administrative Agent); or
(i) such Account is subject to any deduction, offset,
counterclaim, return privilege or other conditions other than volume sales
discounts given in the ordinary course of the Company's business; provided,
however, that such Account shall be ineligible pursuant to this clause (i) only
to the extent of such deduction, offset, counterclaim, return privilege or
other condition; or
(j) the Account Debtor on such Account is located in any
State of the United States requiring the holder of such Account, as a
precondition to commencing or maintaining any action in the courts of such
State either to (i) receive a certificate of authorization to do business in
such State or be in good standing in such State or (ii) file a Notice of
Business Activities Report with the appropriate office or agency of such State,
in each case unless the holder of such Account has received such a certificate
of authority to do business, is in good standing or, as the case may be, has
duly filed such a notice in such State; or
(k) the sale represented by such Account is denominated in a
currency other than Dollars, Pounds, euros or such other currency acceptable to
the Multi-Currency Administrative Agent in its sole discretion exercised
reasonably and in accordance with customary business practices for comparable
asset-based transactions; or
(l) such Account is not evidenced by an invoice or other
writing in form acceptable to the Multi-Currency Administrative Agent, in its
sole discretion exercised reasonably; or
(m) the Company or such Subsidiary Guarantor, in order to be
entitled to collect such Account, is required to perform any additional service
for, or perform or incur any additional obligation to, the Person to whom or to
which it was made; or
(n) (i) with respect to Account Debtors with a corporate
credit rating of A- or higher from S&P or A3 or higher from Moody's, the total
Accounts of such Account Debtor to the Company or such Subsidiary Guarantor
that would otherwise constitute Eligible Receivables but for the application of
this clause (n) represent more than 35% of the Eligible Receivables of the
Company and the Subsidiary Guarantors at such time, (ii) with respect to
Account Debtors with a corporate credit rating of lower than A- but BBB- or
higher from S&P or lower than A3 but Baa3 or higher from Moody's, the total
Accounts of such Account Debtor to the Company or such Subsidiary Guarantor
that would otherwise constitute Eligible Receivables but for the application of
this clause (n) represent more than 25% of the Eligible Receivables of the
Company and the Subsidiary Guarantors at such time or (iii) with respect to
Account Debtors with a corporate credit rating of lower than BBB- from S&P or
lower than Baa3 from Moody's, the total Accounts of such Account Debtor to the
Company or such Subsidiary Guarantor that would otherwise constitute Eligible
Receivables but for the application of this clause (n) represent more than 15%
of the Eligible Receivables of the Company and the Subsidiary Guarantors at
such time, but in each case, only to the extent of such excess; or
(o) the Multi-Currency Administrative Agent, in accordance
with its customary criteria, determines, in its sole discretion exercised
reasonably, that such Account might not be paid or is otherwise ineligible.
"Eligible Special Markets Inventory" shall mean Eligible
Finished Goods of the Company or any Subsidiary Guarantory consisting of
finished goods for "Special Markets," as defined in Schedule IV.
"Eligible Tote Stores Inventory" shall mean Eligible Finished
Goods of the Company or any Subsidiary Guarantory consisting of "Tote Stores,"
as defined in Schedule IV.
"Eligible Work-in-Process Inventory" shall mean a class of
Eligible Inventory consisting of the Eligible Inventory of the Company or any
Subsidiary Guarantor that is classified, consistent with past practice, on the
Company's or such Subsidiary Guarantor's accounting system as
"work-in-process".
"Entitlement Holder" shall have the meaning assigned to such
term in the UCC.
"Entitlement Order" shall have the meaning assigned to such
term in the UCC.
"Environmental Laws" shall mean any and all federal,
national, state, provincial, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees or requirements of any
Governmental Authority within or outside of the United States regulating,
relating to or imposing liability or standards of conduct concerning any
hazardous or deleterious materials or the protection of the environment,
natural resources or human health and safety as it relates to environmental
protection, as now or may at any time hereafter be in effect, including,
without limitation, the Clean Water Act, also known as the Federal Water
Pollution Control Act, 33 U.S.C. ss. 1251 et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. ss. 136 et seq., the Surface Mining
Control and Reclamation Act, 30 U.S.C. ss. 1201 et seq., the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss. 9601 et
seq. (as amended by the Superfund Amendment and Reauthorization Act of 1986,
Public Law 99-499, 100 Stat. 1613), the Emergency Planning and Community Right
to Know Act, 42 U.S.C. ss. 1101 et seq., the Resource Conservation and Recovery
Act, 42 U.S.C. ss. 6901 et seq., the Safe Drinking Water Act, 42 U.S.C. ss.
300F et seq., the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq., and
the Occupational Health and Safety Act, 29 U.S.C. ss. 651 et seq. (but only to
the extent it regulates occupational exposure to Hazardous Materials),
together, in each case, with each amendment thereto, and the regulations
adopted and publications promulgated thereunder and all substitutions therefor.
"Environmental Liabilities and Costs" shall mean, with
respect to any Person, all liabilities, obligations, responsibilities, Remedial
Actions, losses, damages, punitive damages, consequential damages, treble
damages, costs and expenses (including all reasonable fees, disbursements and
expenses of counsel, experts and consultants and costs of investigation and
feasibility studies), fines, penalties, sanctions and interest incurred as a
result of any claim or demand by any other Person, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute
and whether arising under any Environmental Law, permit, approval,
authorization, license, variance, permission, order or agreement with or
required from any Governmental Authority or other Person, in each case relating
to any environmental, health or safety condition or to any Release or
threatened Release and resulting from the past, present or future operations
of, or ownership of property by, such Person or any of its Subsidiaries.
"Equipment" shall have the meaning assigned to such term in
the UCC.
"Equity Offering" shall mean each sale, transfer, issuance or
other disposition (whether public or private) by the Company or any Affiliate
thereof of all or any portion of the Stock or Stock Equivalents of Revlon or
any of its Subsidiaries (other than a Subsidiary of the Company); provided,
however, that "Equity Offering" shall not include any sale, transfer, issuance
or other disposition of Stock or Stock Equivalents of the Company to Revlon so
long as any proceeds of such sale, transfer, issuance or other distribution are
received by the Company.
"Equivalent" shall mean, at any date with respect to:
(a) an amount of a currency other than Dollars, the amount of
Dollars into which such amount of such other currency could be converted at the
spot exchange rate quoted in The Wall Street Journal on such day (or, if such
currency is not quoted in The Wall Street Journal on such day, such other
source as shall be reasonably selected by the Designated Multi-Currency
Administrative Agent); and
(b) an amount of Dollars, the amount of a particular currency
into which such amount of Dollars could be converted at the spot exchange rate
quoted in The Wall Street Journal on such day (or, if such currency is not
quoted in The Wall Street Journal on such day, such other source as shall be
reasonably selected by the Designated Multi-Currency Administrative Agent).
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"euro" shall mean the single currency of participating member
States of the European Union.
"Eurocurrency Base Rate" shall mean, with respect to each day
during each Interest Period pertaining to a Eurocurrency Loan, the rate per
annum determined on the basis of the rate for deposits in the relevant
Denomination Currency for a period equal to such Interest Period commencing on
the first day of such Interest Period appearing on Page 3750 of the Telerate
screen (or such other page of the Telerate as is customary for the relevant
Denomination Currency) as of 11:00 A.M. (London time) (or such other time as is
customary for the relevant jurisdiction) two Working Days prior to the
beginning of such Interest Period. In the event that such rate does not appear
on Page 3750 (or equivalent page) of the Telerate screen, the "Eurocurrency
Base Rate" shall be determined by reference to such other comparable publicly
available service for displaying eurocurrency rates as may be selected by the
Designated Multi-Currency Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Designated Multi-Currency
Administrative Agent (or, with respect to Local Loans which are Eurocurrency
Loans in which Multi-Currency Lenders have not been requested to purchase
participating interests pursuant to Section 6.4(a), the relevant Local Fronting
Lender) is offered deposits in the relevant Denomination Currency at or about
11:00 A.M. (London time) (or such other time as is customary for the relevant
jurisdiction) two Working Days prior to the beginning of such Interest Period
in the interbank eurocurrency market where its eurocurrency and foreign
currency and exchange operations are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein.
"Eurocurrency Loan" shall mean each Local Loan hereunder at
such time as it is made and/or being maintained at a rate of interest based
upon the Eurocurrency Rate.
"Eurocurrency Rate" with respect to each Eurocurrency Loan
for each Interest Period shall mean the rate per annum (rounded upwards to the
nearest whole multiple of 1/100th of one percent) equal to the following:
Eurocurrency Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements" with respect to any
Interest Period for any Eurodollar Loan or Eurocurrency Loan shall mean the
aggregate of the rates (expressed as a decimal) of reserve requirements current
on the date two Working Days prior to the beginning of such Interest Period
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other governmental authority having jurisdiction with respect
thereto), as now and from time to time hereafter in effect, dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency liabilities" in Regulation D of such Board) required to be
maintained by a member bank of such System.
"Eurodollar Base Rate" shall mean with respect to each day
during each Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period equal
to such Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen (or such other page of the
Telerate as is customary for Eurodollar deposits in Dollars) as of 11:00 A.M.
(London time) (or, with respect to Local Loans, such other time as is customary
for the relevant jurisdiction) two Working Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 (or
equivalent page) of the Telerate screen, the "Eurodollar Base Rate" shall be
determined by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Designated Multi-Currency
Administrative Agent or, in the absence of such availability, by reference to
the rate at which the Designated Multi-Currency Administrative Agent (or, with
respect to Local Loans which are Eurodollar Loans in which the Multi-Currency
Lenders have not been requested to purchase participating interests pursuant to
Section 6.4(a), the relevant Local Fronting Lender) is offered Dollar deposits
at or about 11:00 A.M. (London time) (or, with respect to Local Loans, such
other time as is customary for the relevant jurisdiction), two Working Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"Eurodollar Loan" shall mean each Dollar Loan hereunder at
such time as it is made and/or being maintained at a rate of interest based
upon the Eurodollar Rate.
"Eurodollar Rate" with respect to each Eurodollar Loan for
each Interest Period shall mean the rate per annum (rounded upwards to the
nearest whole multiple of 1/100th of one percent) equal to the following:
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default" shall mean any of the events specified in
Article XII; provided, however, that any requirement for the giving of notice,
the lapse of time, or both, or any other condition, has been satisfied.
"Excess Cash Flow" shall mean, for the Company for any
period, (a) EBITDA of the Company for such period plus (b) the excess, if any,
of the Working Capital of the Company at the beginning of such period over the
Working Capital of the Company at the end of such period minus (c) the sum of
(without duplication) (i) scheduled, mandatory and optional cash principal
payments on the Loans during such period (but only, in the case of payment in
respect of Revolving Credit Loans, to the extent that the Aggregate
Multi-Currency Commitments are permanently reduced by the amount of such
payments), (ii) scheduled and mandatory cash interest and fee payments on the
Loans and other Indebtedness of the Company and its Subsidiaries during such
period, (iii) Capital Expenditures made by the Company or any of its
Subsidiaries during such period to the extent permitted by this Agreement, (iv)
cash tax payments, (v) any cash payments made against prior restructuring and
growth plan charges in an amount not to exceed the Company's current reserves
for such charges, (vi) the excess, if any, of the Working Capital of the
Company at the end of such period over the Working Capital of the Company at
the beginning of such period and (vii) fees, charges and other expenses (but
not interest or principal) in connection with repurchasing, redeeming,
defeasing or refinancing Indebtedness permitted to be refinanced, redeemed,
defeased or refinanced under this Agreement.
"Exchange" shall mean, the exchange of approximately
$804,000,000 in aggregate outstanding principal amount of the Company's
Indebtedness for shares of Class A common stock of Revlon, which exchange was
consummated on March 25, 2004.
"Existing Agreement" shall mean the Second Amended and
Restated Credit Agreement, dated as of November 30, 2001, among the Company and
the other Borrowers (as defined therein), the banks and other financial
institutions from time to time parties thereto, the co-agents named therein,
the documentation agent named therein, the syndication agent named therein, the
arranger named therein, and JPMorgan Chase Bank, as Administrative Agent, as
amended, supplemented or otherwise modified from time to time prior to the date
hereof.
"Facilities Increase" shall have the meaning specified in
Section 3.1(b).
"Facilities Increase Date" shall have the meaning specified
in Section 3.1(b).
"Facilities Increase Notice" shall mean a notice from the
Company to the Multi-Currency Administrative Agent requesting a Facilities
Increase, which may include any proposed term and condition for such proposed
Facilities Increase but shall include in any event the amount of such proposed
Facilities Increase.
"Federal Funds Effective Rate" for any day shall mean the
interest rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by the Designated Multi-Currency Administrative Agent
from three Federal funds brokers of recognized standing selected by it.
"Fidelity Support Agreement" shall mean the Exchange Support
Letter Agreement dated February 11, 2004 between Fidelity Management & Research
Co. and Revlon, as amended, supplemented and otherwise modified prior to March
25, 2004.
"Financial Asset" shall have the meaning assigned to such
term in the UCC.
"Foreign Subsidiary" shall mean any Subsidiary of the Company
which is not a Domestic Subsidiary.
"Fully Satisfied" or "Full Satisfaction" shall mean, as of
any date, with respect to the Payment Obligations arising under the
Multi-Currency Facility or the Term Loan Facility, that, on or before such
date, (a) the principal of and interest accrued to such date on such Payment
Obligations (other than, in the case of Payment Obligations arising under the
Multi-Currency Facility, the Undrawn L/C Obligations) under such Facility shall
have been paid in full in cash, (b) all fees, expenses and other amounts then
due and payable which constituted Payment Obligations (other than, in the case
of Payment Obligations arising under the Multi-Currency Facility, the Undrawn
L/C Obligations) under such Facility shall have been paid in full in cash, (c)
the Commitments under such Facility shall have expired or irrevocably been
terminated and (d) in the case of the Multi-Currency Facility only, the Undrawn
L/C Obligations shall have been Fully Secured; provided, however, that, on such
date, none of the applicable Agents or Lenders shall have made any claims in
respect of such Payment Obligations against any Borrower or any Guarantor under
any provision of any of the Loan Documents that has not been cash
collateralized by an amount sufficient in the reasonable judgment of such Agent
and such Lender to secure such claim.
"Fully Secured" shall mean, with respect to any Undrawn L/C
Obligations as of any date, that, on or before such date, such Undrawn L/C
Obligations shall have been secured by the grant to, or for the benefit of, the
relevant Issuing Lender by the Company of a first priority, perfected security
interest in, and Lien on, (a) cash or Cash Equivalents in an amount at least
equal to the Equivalent in Dollars of 105% of the amount of such Undrawn L/C
Obligations or (b) other collateral security which is acceptable to such
Issuing Lender and the Multi-Currency Administrative Agent.
"Fund" shall mean any Person (other than a natural Person)
that is or will be engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary
course of its business.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect as of the date of, and used in, the
preparation of the audited consolidated financial statements of the Company and
its Subsidiaries for the fiscal year ended December 31, 2003, except that, with
respect to the presentation of financial statements required to be furnished
hereunder, GAAP shall mean generally accepted accounting principles in the
United States of America as in effect from time to time.
"General Intangible" shall have the meaning assigned to such
term in the UCC.
"Governmental Authority" shall mean 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 or foreign) and
the National Association of Insurance Commissioners.
"Guarantors" shall mean the collective reference to the
guarantors party to the Guaranty; individually, a "Guarantor".
"Guaranty" shall mean the Guaranty, substantially in the form
of Exhibit E, executed by the Guarantors, as the same may be amended, amended
and restated, supplemented or otherwise modified from time to time.
"Hazardous Materials" shall mean any materials, wastes, or
substances, defined, characterized or regulated as hazardous, toxic, pollutant,
contaminant, radioactive or words of similar meaning in or under any
Environmental Law, including without limitation asbestos, Petroleum Products
and material exhibiting the characteristics of ignitability, corrosivity,
reactivity or extraction procedure toxicity, as such terms are defined in
connection with hazardous materials or hazardous wastes or hazardous or toxic
substances in any Environmental Law.
"Hedging Contracts" shall mean all Interest Rate Agreements,
foreign exchange contracts, currency swap or option agreements, forward
contracts, commodity swap, purchase or option agreements, other commodity price
hedging arrangements and all other similar agreements or arrangements designed
to alter the risks of any Person arising from fluctuations in interest rates,
currency values or commodity prices and other financial hedge contracts
(including, without limitation, equity hedge contracts).
"Indebtedness" of a Person shall mean (a) indebtedness of
such Person for borrowed money whether short-term or long-term and whether
secured or unsecured, (b) indebtedness of such Person for the deferred purchase
price of services or property, which purchase price (i) is due twelve months or
more from the date of incurrence of the obligation in respect thereof or (ii)
customarily or actually is evidenced by a note or similar written instrument
(including, without limitation, any such indebtedness which is non-recourse to
the credit of such Person but is secured by assets of such Person), (c) Capital
Lease Obligations, (d) obligations of such Person arising under acceptance
facilities, (e) the undrawn face amount of, and unpaid reimbursement
obligations and other amounts owing in respect of, all letters of credit issued
for the account of such Person, (f) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (g) all obligations of
such Person upon which interest charges are customarily paid, (h) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (i)
obligations of such Person to purchase, redeem, retire, defease or otherwise
acquire for value any Stock or Stock Equivalents (with redeemable preferred
stock being valued at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends), (j) all executory obligations of
such Person in respect of Hedging Contracts, (k) all Indebtedness of the types
referred to in clauses (a) through (j) above which is guaranteed directly or
indirectly by such Person and (l) renewals, extensions, refundings, deferrals,
restructurings, amendments and modifications of any such indebtedness,
obligation or guarantee.
"Indentures" shall mean the collective reference to (a) the
Subordinated Notes Indenture, (b) the 8-1/8% Senior Notes Indenture, (c) the 9%
Senior Notes Indenture, (d) the Designated Senior Secured Indenture and (e)
each instrument, document and agreement delivered in connection therewith, as
each of the foregoing may be amended, supplemented or otherwise modified from
time to time to the extent permitted by Section 11.9.
"Initial Appraisals" shall have the meaning specified in
Section 9.1(u).
"Insolvency" shall mean with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"Insolvent" shall pertain to a condition of Insolvency.
"Intellectual Property" shall have the meaning assigned to
such term (or any analogous term) in the Pledge and Security Agreement.
"Intercreditor Agreement" shall mean the Intercreditor and
Collateral Agency Agreement, substantially in the form of Exhibit D, among the
Loan Parties, the Term Loan Administrative Agent, the Multi-Currency
Administrative Agent and the Collateral Agent, as the same may be amended,
amended and restated, supplemented or otherwise modified from time to time.
"Intercompany Investment" shall have the meaning assigned to
such term in Section 11.8(j).
"Interest Expense" shall mean, for any period, the amount
which, in conformity with GAAP, would be set forth opposite the caption
"interest expense" (or any like caption) on a consolidated income statement of
the Company and its Subsidiaries for such period.
"Interest Payment Date" shall mean:
(a) as to any Alternate Base Rate Loan, the last day of each
March, June, September and December, commencing on the first of such days to
occur after such Alternate Base Rate Loan is made or Eurodollar Loans are
converted to Alternate Base Rate Loans;
(b) as to any Local Rate Loan which does not have an Interest
Period, the last day of each calendar month, commencing on the first of such
days to occur after such Local Rate Loan is made or Eurocurrency Loans are
converted into Local Rate Loans;
(c) as to any Local Rate Loan, Eurocurrency Loan and
Eurodollar Loan with an Interest Period of three months or less, the last day
of the Interest Period with respect thereto;
(d) as to any Local Rate Loan, Eurocurrency Loan and
Eurodollar Loan with an Interest Period of six months, the last day of each
March, June, September and December occurring during such Interest Period,
commencing on the first such day to occur after the commencement of such
Interest Period, and the last day of such Interest Period;
(e) as to any Acceptance, the last Business Day of the
calendar week in which such Acceptance matures (or such earlier date as the
relevant Local Fronting Lender may elect);
(f) as to any Eurodollar Loan or any Term Loan, the date of
any repayment or prepayment made in respect thereof; and
(g) in any event, each of the last day of the Commitment
Period and the Term Loan Termination Date.
"Interest Period" shall mean, (a) initially, with respect to
any Eurodollar Loan or Eurocurrency Loan or (to the extent customary with
respect to loans in the relevant Denomination Currency) any Local Rate Loan,
the period commencing on the borrowing date or the initial date of conversion
with respect to such Loan and ending one, two, three or six months thereafter
as selected by the relevant Borrower in a notice of borrowing or conversion, as
the case may be, as provided herein and (b) thereafter, each period commencing
on the last day of the immediately preceding Interest Period applicable to such
Loan and ending one, two, three or six months thereafter, in any such case as
selected by the relevant Borrower in accordance with the provisions of Section
7.7; provided, however, that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) any Interest Period relating to a Eurodollar Loan or a
Eurocurrency Loan would otherwise end on a day which is not a Working Day, such
Interest Period shall be extended to the next succeeding Working Day, unless
the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on the
immediately preceding Working Day;
(ii) no Interest Period relating to any Loan shall be
selected that would extend beyond the Multi-Currency Termination Date or the
Term Loan Termination Date, as the case may be; and
(iii) if any Interest Period relating to a Eurodollar Loan or
a Eurocurrency Loan begins on the last Working Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period), such Interest Period shall end on the last
Working Day of a calendar month.
"Interest Rate Agreement" shall mean any interest rate swap,
option, cap, collar or insurance or any other agreement or arrangement with any
Lender (or any affiliate thereof) or any other bank or financial institution
which is designed to manage exposure to fluctuations in interest rates
(including without limitation any such agreement or arrangement providing for
swaps of fixed rates to floating rates), and any renewals thereof or
substitutions therefor.
"Inventory" shall have the meaning assigned to such term in
the UCC.
"Investment" shall mean, with respect to the Company and its
Subsidiaries:
(a) the purchase of all or substantially all of the assets or
stock of one or more Persons, or of assets which comprise any business unit of
any such Persons, or of assets, stock, bonds, notes, debentures or other
securities of any Permitted Joint Venture;
(b) the making of any advances, loans, extensions of credit
or capital contributions to, or of any other investments (including, without
limitation, the payment of management fees and other Restricted Payments) in,
Permitted Joint Ventures; or
(c) the incurrence of any Contingent Obligation in the nature
of a guarantee of Indebtedness of any Permitted Joint Venture.
"Investment Consideration" shall mean, with respect to any
Investment in any Person or Permitted Joint Venture, the sum (without
duplication) of:
(a) the aggregate of the purchase prices paid by the Company
and its Subsidiaries for such Investment;
(b) the aggregate amount of the Indebtedness of such Persons
or Permitted Joint Ventures, as the case may be, paid or assumed by the Company
and its Subsidiaries in connection with such Investment;
(c) except in the case of Investments in Permitted Joint
Ventures, the aggregate amount of Indebtedness for which such Person remains
liable following such Investment; and
(d) in the case of Investments in Permitted Joint Ventures,
(i) the aggregate of the amount invested in such Investments (net of any loans
or extensions of credit to the extent that they have been repaid and net of any
contributions of Surplus Assets) in such Permitted Joint Ventures made by the
Company and its Subsidiaries and (ii) the aggregate amount of Contingent
Obligations of the Company and its Subsidiaries then outstanding on account of
Indebtedness of such Permitted Joint Ventures.
"Issuing Lender" shall mean each Lender or Affiliate of a
Lender that (a) is listed on the signature pages hereof as an "Issuing Lender"
or (b) hereafter becomes an Issuing Lender with the approval (not to be
unreasonably withheld) of the Multi-Currency Administrative Agent and the
Company by agreeing pursuant to an agreement with and in form and substance
reasonably satisfactory to the Multi-Currency Administrative Agent and the
Company to be bound by the terms hereof applicable to Issuing Lenders.
"judgment currency" shall have the meaning assigned to such
term Section 14.9.
"Land" of any Person shall mean all of those plots, pieces or
parcels of land now owned, leased or hereafter acquired or leased (including,
in respect of the Loan Parties, as reflected in the most recent financial
statements delivered in accordance with Section 10.1) by such Person.
"Landlord Waiver" shall mean a letter in form and substance
reasonably acceptable to the Multi-Currency Administrative Agent and executed
by a landlord in respect of Inventory or Equipment of the Company or any
Subsidiary Guarantor located at any leased premises of the Company or such
Subsidiary Guarantor pursuant to which such landlord, among other things,
waives or subordinates on terms and conditions reasonably acceptable to the
Multi-Currency Administrative Agent any Lien such landlord may have in respect
of such Inventory or Equipment.
"L/C Fee Payment Date" shall mean the last day of each March,
June, September and December and, in any event, the last day of the Commitment
Period and the Term Loan Termination Date.
"L/C Obligations" shall mean, at any time, an amount equal to
the sum of (a) the aggregate amount of Undrawn L/C Obligations then outstanding
and (b) the aggregate amount of then unreimbursed L/C Reimbursement
Obligations.
"L/C Participants" shall mean, with respect to any Letter of
Credit, the collective reference to all the Multi-Currency Lenders, other than
the Issuing Lender with respect to such Letter of Credit (or, to the extent
that the Issuing Lender is an affiliate of a Multi-Currency Lender, such
Multi-Currency Lender).
"L/C Reimbursement Obligations" shall mean the obligation of
the Company to reimburse the Issuing Lenders pursuant to Section 5.4 for
amounts drawn under Letters of Credit.
"Lender" shall mean a Multi-Currency Lender, a Term Loan
Lender, a Swing Line Lender or a Local Fronting Lender, as the context shall
require; collectively, the "Lenders".
"Letter of Credit" shall have the meaning assigned to such
term in Section 5.1(a).
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other) or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, (a) any conditional sale or
other title retention agreement, (b) any financing lease having substantially
the same economic effect as any of the foregoing, (c) the filing of any
financing statement under the UCC (other than any such financing statement
filed for informational purposes only) or comparable law of any jurisdiction to
evidence any of the foregoing and (d) in the case of securities, any purchase
option, call or similar right of a third party with respect to such securities
(other than, in the case of capital stock of an issuer other than any
Subsidiary of the Company, pursuant to normal settlement terms)).
"Liquidity Amount" shall mean the difference equal to (a) the
Borrowing Base in effect as of such date (based on the Borrowing Base
Certificate most recently delivered to the Multi-Currency Administrative Agent
pursuant to Section 10.17 and after giving effect to any Eligibility Reserve or
Designated Eligible Obligations Reserve in effect at such time, whether or not
reflected on such Borrowing Base Certificate) minus (b) the sum of (i) the
Aggregate Outstanding Multi-Currency Extensions of Credit on such date and (ii)
any Availability Reserve in effect on such date.
"Liquidity Event Period" shall mean, until all Payment
Obligations arising under the Multi-Currency Facility have been Fully
Satisfied, any period (a) beginning on the first date on which the Liquidity
Amount is less than $30,000,000 and (b) ending on the first date on which the
Liquidity Amount is equal to or greater than $30,000,000.
"Loan" shall mean a Term Loan, a Revolving Credit Loan, a
Swing Line Loan, a Local Loan or an Acceptance, as the context shall require;
collectively, the "Loans".
"Loan Documents" shall mean this Agreement, the Notes, the
Drafts, the Applications, the Affiliate Subordination Letters, the Security
Documents and each certificate, agreement or document executed by a Loan Party
and delivered to any Agent or any Lender in connection with or pursuant to any
of the foregoing; each, a "Loan Document".
"Loan Party" shall mean each Borrower and each Guarantor.
"Local Borrower" shall mean the Company or a Local Borrowing
Subsidiary, as the context shall require; collectively, the "Local Borrowers".
"Local Borrowing Subsidiary" shall mean each Subsidiary of
the Company listed under the heading "Name of Borrower and Address for Notices"
on Schedule III hereto (as such Schedule III may be or may be deemed to be
amended, supplemented or otherwise modified from time to time) and each other
Subsidiary of the Company which is designated as a "Local Borrowing Subsidiary"
in accordance with the provisions of Section 6.5; provided, however, that, in
each case in which there is more than one Subsidiary of the Company listed for
any jurisdiction under the heading "Local Borrowing Subsidiaries," the term
"Local Borrowing Subsidiary" shall be the collective reference to such
Subsidiaries.
"Local Borrowing Subsidiary Joinder Agreement" shall mean a
Local Borrowing Subsidiary Joinder Agreement, substantially in the form of
Exhibit O-1, executed and delivered by a duly authorized officer of each
Subsidiary of the Company which has been designated as a "Local Borrowing
Subsidiary" pursuant to Section 6.5.
"local court" shall have the meaning assigned to such term in
Section 14.5(a).
"Local Fronting Lender" shall mean, with respect to a
particular jurisdiction listed on Schedule III (as such Schedule III may be, or
may be deemed to be, amended, supplemented or otherwise modified from time to
time), the Affiliate of the Multi-Currency Administrative Agent from time to
time set forth opposite such jurisdiction thereon or, if no Affiliate of the
Multi-Currency Administrative Agent accepts such designation with respect to a
particular jurisdiction or if an Affiliate of the Multi-Currency Administrative
Agent resigns or is removed as the Local Fronting Lender with respect to a
particular jurisdiction, such Multi-Currency Lender designated by the Company
and reasonably acceptable to the Multi-Currency Administrative Agent.
"Local Fronting Lender Joinder Agreement" shall mean a Local
Fronting Lender Joinder Agreement, substantially in the form of Exhibit O-2.
"Local Loan" and "Local Loans" shall have the meanings
assigned to such terms in Section 6.1; provided, however, that the term "Local
Loans" shall, to the extent utilized directly or indirectly in the Security
Documents, be deemed to include any Acceptances outstanding under this
Agreement.
"Local Outstandings" shall mean, at any date with respect to
any Local Fronting Lender, the sum of (a) the aggregate principal amount then
outstanding of Local Loans made by such Local Fronting Lender in Dollars, (b)
the Equivalent in Dollars of 105% of the aggregate principal amount then
outstanding of Local Loans made by such Local Fronting Lender in the relevant
Denomination Currency and (c) the Equivalent in Dollars of 105% of the
aggregate undiscounted face amount then outstanding of the Acceptances created
by such Local Fronting Lender.
"Local Rate" shall mean, with respect to:
(a) any Local Loan in a Denomination Currency, the rate of
interest from time to time publicly announced by the relevant Local Fronting
Lender as its base rate (or its equivalent thereof) for loans denominated in
such Denomination Currency at the principal lending office of such Local
Fronting Lender in the local jurisdiction for such Denomination Currency (or
such other rate as may be mutually agreed between the relevant Borrower and
such Local Fronting Lender as reflecting the Cost of Funds to such Local
Fronting Lender for the Local Loans to which such rate is applicable);
provided, however, that, with respect to any Local Loans advanced by way of
overdrafts, the "Local Rate" shall be the rate from time to time agreed upon
between the relevant Local Borrower and the relevant Local Fronting Lender; and
(b) any Acceptance, the rate from time to time agreed upon
between the relevant Local Borrower and the relevant Local Fronting Lender.
"Local Rate Loan" shall mean each Local Loan hereunder at
such time as it is made and/or being maintained at a rate of interest based
upon the Local Rate for the relevant Denomination Currency; provided, however,
that (other than any Local Loans made on the Closing Date) no Local Loan shall
be made or maintained as a Local Rate Loan unless either (a) the Local Fronting
Lender with respect thereto so agrees (in its sole discretion) or (b) the right
of the relevant Borrower to obtain Eurocurrency Loans has been suspended
pursuant to Sections 6.7, 7.8 or 7.9.
"M&FG" shall mean MacAndrews & Forbes Group, Incorporated, a
Delaware corporation.
"M&FH" shall mean MacAndrews & Forbes Holdings Inc., a
Delaware corporation.
"M&FH Lender" shall mean M&FH, and/or an Affiliate thereof
(other than REV Holdings), that provides financing to the Company pursuant to
the M&FH Loans.
"M&FH Loans" shall mean the collective reference to the M&FH
Supplemental Line of Credit and the M&FH 2004 Multiple-Draw Term Loan, and any
other Indebtedness permitted to be incurred under Section 11.2(i).
"M&FH Supplemental Line of Credit" shall mean the line of
credit in an aggregate amount of $65,000,000 provided under the Senior
Unsecured Supplemental Line of Credit Agreement, dated as of February 5, 2003,
between the Company and M&FH, as amended through the date hereof and the same
may be amended, supplemented or otherwise modified from time to time to the
extent permitted by Section 11.9.
"M&FH 2004 Multiple-Draw Term Loan" shall mean the senior
unsecured multiple-draw term loan provided to the Company by the M&FH Lender
pursuant to the 2004 Senior Unsecured Multiple-Draw Term Loan Agreement, dated
as of January 28, 2004, between the Company and the M&FH Lender, as amended
through the date hereof and as the same may be amended, supplemented or
otherwise modified from time to time to the extent permitted by Section 11.9.
"Mafco" shall mean Mafco Holdings Inc., a Delaware
corporation.
"Mafco Investment Agreement" shall mean the Investment
Agreement, dated February 20, 2004, between Revlon and Mafco, as amended
through the date hereof and as the same may be amended, supplemented or
otherwise modified from time to time.
"Mafco Support Agreement" shall mean the Exchange Support
Letter Agreement dated February 11, 2004 between Mafco and Revlon, as amended
through the date hereof and as the same may be amended, supplemented or
otherwise modified from time to time.
"Material Adverse Effect" shall mean a material adverse
effect upon (i) the business, condition (financial or otherwise), operations,
performance, properties or prospects of (A) Revlon or (B) the Company and its
Subsidiaries taken as a whole, (ii) the ability of the Company and its
Subsidiaries taken as a whole to perform the obligations of the Company under
the Loan Documents or (iii) the rights and remedies available to any Agent, any
Local Fronting Lender and/or the Syndicated Lenders under any Loan Document.
"Maximum Multi-Currency Availability" shall mean, at any
time, (a) the lesser of (i) the Aggregate Multi-Currency Commitment in effect
at such time and (ii) the Borrowing Base at such time (based on the Borrowing
Base Certificate most recently delivered to the Multi-Currency Administrative
Agent pursuant to Section 10.17, after giving effect to any Eligibility Reserve
or Designated Eligible Obligations Reserve in effect at such time, whether or
not reflected on such Borrowing Base Certificate), minus (b) the aggregate
amount of any Availability Reserve in effect at such time.
"Maximum Sublimit" of any Local Fronting Lender shall mean
the amount of Dollars set forth opposite the name of such Local Fronting Lender
under the heading "Maximum Sublimit" on Schedule III (as such Schedule III may
be or may be deemed to be, amended, supplemented or otherwise modified from
time to time).
"Moody's" shall mean Moody's Investors Service, Inc. (or any
successor thereto).
"Mortgage Supporting Documents" shall mean, with respect to a
Mortgage for a parcel of Real Property, each the following:
(a) (i) evidence in form and substance reasonably
satisfactory to the Multi-Currency Administrative Agent that the recording of
counterparts of such Mortgage in the recording offices specified in such
Mortgage will create a valid and enforceable first priority Lien on property
described therein in favor of the Collateral Agent for the benefit of the
Secured Parties (or in favor of such other trustee as may be required or
desired under local law) subject only to (A) Customary Permitted Liens and (B)
such other Liens as the Multi-Currency Administrative Agent may reasonably
approve and (ii) an opinion of counsel in each state in which any such Mortgage
is to be recorded in form and substance and from counsel reasonably
satisfactory to the Multi-Currency Administrative Agent;
(b) (i) a mortgagee's title policy (or policies) or marked-up
unconditional binder (or binders) for such insurance (or other evidence
reasonably acceptable to the Multi-Currency Administrative Agent proving
ownership thereof) ("Mortgagee's Title Insurance Policy"), dated a date
reasonably satisfactory to the Multi-Currency Administrative Agent, which shall
(A) be in an amount not less than 125% of Mortgage Value of such parcel of Real
Property, (B) be issued at ordinary rates, (C) insure that the Lien granted
pursuant to the Mortgage insured thereby creates a valid first priority Lien on
such parcel of Real Property free and clear of all defects and encumbrances,
except for Customary Permitted Liens and for such Liens, defects and
encumbrances as may be approved by the Multi-Currency Administrative Agent, (D)
name the Collateral Agent for the benefit of the Secured Parties as the insured
thereunder, (E) be in the form of ALTA Loan Policy - 1992 (or such local
equivalent thereof as is reasonably satisfactory to the Multi-Currency
Administrative Agent), (F) contain a waiver of creditors' rights, a
comprehensive lender's endorsement and such other endorsements as the
Multi-Currency Administrative Agent shall reasonably require (including, but
not limited to, a revolving credit endorsement and a floating rate
endorsement), (G) be issued by Chicago Title Insurance Company, First American
Title Insurance Company, Lawyers Title Insurance Corporation or any other title
company reasonably satisfactory to the Multi-Currency Administrative Agent
(including any such title companies acting as co-insurers or reinsurers) and
(H) be otherwise in form and substance reasonably satisfactory to the
Multi-Currency Administrative Agent and (ii) a copy of all documents referred
to, or listed as exceptions to title, in such title policy (or policies), in
each case in form and substance reasonably satisfactory to the Multi-Currency
Administrative Agent;
(c) maps or plats of an as-built survey of such parcel of
Real Property certified to and received by (in a manner reasonably satisfactory
to each of them) the Multi-Currency Administrative Agent and the title
insurance company issuing the Mortgagee's Title Insurance Policy for such
Mortgage, dated a date reasonably satisfactory to the Multi-Currency
Administrative Agent and such title insurance company, by an independent
professional licensed land surveyor reasonably satisfactory to the
Multi-Currency Administrative Agent and such title insurance company, which
maps or plats and the surveys on which they are based shall be made in form and
substance reasonably satisfactory to the Multi-Currency Administrative Agent;
(d) evidence in form and substance reasonably satisfactory to
the Multi-Currency Administrative Agent that all premiums in respect of each
Mortgagee's Title Insurance Policy, all recording fees and stamp, documentary,
intangible or mortgage recording taxes, if any, in connection with the Mortgage
have been paid;
(e) a Phase I environmental report with respect to such
parcel of Real Property, dated a date not more than one year prior to the
Closing Date, in form and substance reasonably satisfactory to the
Multi-Currency Administrative Agent; and
(f) such other agreements, documents and instruments in form
and substance reasonably satisfactory to the Multi-Currency Administrative
Agent as the Multi-Currency Administrative Agent reasonably deems necessary or
appropriate to create, register or otherwise perfect, maintain, evidence the
existence, substance, form or validity of, or enforce a valid and enforceable
first priority lien on such parcel of Real Property in favor of the Collateral
Agent for the benefit of the Secured Parties (or in favor of such other trustee
as may be required or desired under local law) subject only to (A) Customary
Permitted Liens and (B) such other Liens as the Multi-Currency Administrative
Agent may reasonably approve.
"Mortgage Value" shall mean, with respect to any parcel of
Eligible Real Property, the lesser of (a) the Equivalent in Dollars of the
maximum stated amount secured by the Lien on such parcel of Eligible Real
Property granted in favor of the Collateral Agent pursuant to the relevant
Mortgage and (b) the Equivalent in Dollars of the value of such parcel of
Eligible Real Property set forth in the most recent Appraisal delivered with
respect thereto.
"Mortgaged Properties" shall mean the real property and
improvements encumbered by the Mortgages.
"Mortgagee's Title Insurance Policy" shall have the meaning
specified in the definition of Mortgage Supporting Documents.
"Mortgages" shall mean the collective reference to the Oxford
Mortgage and any fee mortgage or the deed of trust, as the case may be, to be
made pursuant to Sections 9.1(d), 10.15 or 10.16 by the fee owner of the
Mortgaged Properties, in substantially the form of Exhibit G, as the same may
be amended, amended and restated, supplemented or otherwise modified from time
to time; individually, a "Mortgage".
"Multi-Currency Administrative Agent" shall have the meaning
assigned to such term in the preamble hereto, and shall include any successor
"Multi-Currency Administrative Agent" pursuant to Section 13.7.
"Multi-Currency Collateral" shall have the meaning specified
in the Intercreditor Agreement.
"Multi-Currency Commitment" of any Multi-Currency Lender at
any date shall mean the obligation of such Multi-Currency Lender at such date
to (a) make Revolving Credit Loans to the Company, (b) participate in Letters
of Credit issued on behalf of the Company (net of participating interests held
by L/C Participants, in the case of Letters of Credit issued by such
Multi-Currency Lender), (c) participate in Swing Line Loans made to the Company
and (d) participate in Local Loans and Acceptances made to the Local Borrowers,
in an aggregate principal and/or face amount at any one time outstanding not to
exceed the amount set forth opposite such Multi-Currency Lender's name on
Schedule II (as amended to reflect each Assignment and Acceptance executed by
such Multi-Currency Lender), as such amount may be reduced from time to time
pursuant to this Agreement, and each additional commitment by such
Multi-Currency Lender that is included as part of any Facilities Increase;
collectively, as to all such Multi-Currency Lenders, the "Multi-Currency
Commitments".
"Multi-Currency Commitment Percentage" shall mean, with
respect to any Multi-Currency Lender at any date, the percentage which the
Multi-Currency Commitment of such Multi-Currency Lender constitutes of the
Aggregate Multi-Currency Commitment then in effect (or, if no Aggregate
Multi-Currency Commitment is then in effect, the percentage which the portion
of the Aggregate Actual Outstanding Multi-Currency Extensions of Credit in
which such Multi-Currency Lender then has an interest constitutes of the
Aggregate Actual Outstanding Multi-Currency Extensions of Credit then
outstanding).
"Multi-Currency Facility" shall mean the Multi-Currency
Commitments and the provisions herein related to the Revolving Credit Loans,
Swing Line Loans, Letters of Credit, Local Loans and Acceptances.
"Multi-Currency Lender" shall mean, at any date, each bank
and other financial institution which holds a Multi-Currency Commitment.
"Multi-Currency Loans" shall mean the collective reference to
the Revolving Credit Loans, the Swing Line Loans and the Local Loans.
"Multi-Currency Termination Date" shall mean the earliest of
(a) the Stated Multi-Currency Termination date, (b) the Early Termination Date
and (c) the date on which the Payment Obligations become due and payable
pursuant to Article XII.
"Multiemployer Plan" shall mean a Plan (other than a welfare
plan as defined in Section 3(1) of ERISA) which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Orderly Liquidation Percentage" shall mean with regard
to any class of Eligible Inventory, 85% of the net orderly liquidation value
percentage of cost specified for such class of Eligible Inventory in the most
recent Appraisal of such class of Inventory of the applicable Loan Party.
"Net Orderly Liquidation Value" shall mean with regard to any
Eligible Equipment, the net orderly liquidation value of such Eligible
Equipment, as determined by reference to the most recent Appraisal of such
Equipment of the applicable Loan Party.
"Net Proceeds" shall mean, with respect to any Net Proceeds
Event of any Person, (a) the gross cash consideration, and all cash proceeds of
non-cash consideration (including, without limitation, any such cash proceeds
in the nature of principal and interest payments on account of promissory notes
or similar obligations), received by such Person in connection with such Net
Proceeds Event, minus (b) the sum, without duplication, of:
(i) any taxes which are paid, actually currently payable or
estimated in good faith by the Company to become payable to any state, local or
foreign taxing authority and are directly attributable to such Net Proceeds
Event;
(ii) any federal taxes which are directly attributable to any
Net Proceeds Event of such Person or any of its Subsidiaries;
(iii) the amount of fees and commissions (including
reasonable investment banking fees), legal, title and recording tax expenses
and other costs and expenses directly incident to such Net Proceeds Event which
are paid or payable by such Person and its Subsidiaries, other than fees and
commissions (including, without limitation, management consulting and financial
services fees) paid or payable to Affiliates of such Person (or officers or
employees of such Person or any Affiliate of such Person); and
(iv) the amount of liabilities (other than intercompany
liabilities or liabilities owing to any Affiliate of such Person), if any,
which are required to be repaid at the time or as a result of such Net Proceeds
Event out of the proceeds thereof.
"Net Proceeds Event" shall mean:
(a) the incurrence by Revlon, the Company or any of the
Company's Subsidiaries of any Indebtedness for borrowed money (other than
Indebtedness permitted pursuant to Section 11.2);
(b) with respect to the Company and any Subsidiary Guarantor,
the sale, lease, transfer (by merger or otherwise) or other disposition
(including as a result of a Property Loss Event but other than (i) in the
ordinary course of business, and (ii) in respect of intellectual property
licenses entered into in the ordinary course of business) by the Company or
such Subsidiary Guarantor of any interest in any real or personal, tangible or
intangible, property (including, without limitation, the Stock or Stock
Equivalents of any Subsidiary of the Company) of the Company or such Subsidiary
Guarantor to any Person (other than to the Company or any of its Subsidiaries
or any Permitted Joint Venture pursuant to Section 11.6(c), (e) or (g)); and
(c) with respect to the Company, any Capital Contribution
received by it from Revlon of the Net Proceeds of any Equity Offering.
"9% Senior Notes" shall mean the notes in an aggregate
principal amount not to exceed $75,535,000 issued by the Company pursuant to
the 9% Senior Notes Indenture, as such 9% Senior Notes may be amended,
supplemented or otherwise modified from time to time to the extent permitted by
Section 11.9.
"9% Senior Notes Indenture" shall mean the collective
reference to (a) the Indenture, dated as of November 6, 1998, between the
Company and U.S. Bank Trust National Association, relating to the 9% Senior
Notes and (b) each instrument, document and agreement delivered in connection
therewith, as each of the foregoing has been amended and supplemented through
the date hereof and may be further amended, supplemented or otherwise modified
from time to time to the extent permitted by Section 11.9.
"9% Senior Notes Redemption" shall mean the redemption,
repurchase, defeasance or repayment by the Company of all of the outstanding
principal amount of the 9% Senior Notes with (a) proceeds of Capital
Contributions (or contributions of 9% Senior Notes), whether or not in exchange
for equity, from Revlon, (b) proceeds of Indebtedness of the Company that is
permitted to be incurred under Section 11.2(b), (c) Excess Cash Flow as
permitted under Section 11.9(c)(iv) or (d) funds from other sources acceptable
to the Required Lenders.
"Non-Excluded Taxes" shall have the meaning assigned to such
term in Section 7.12(a).
"Non-Funding Lender" shall have the meaning assigned to such
term in Section 7.15(b).
"Non-Voting Stock" shall have the meaning assigned to such
term in Section 10.11(b).
"Note" shall mean any Term Loan Note or any Revolving Credit
Note, as the context may require; collectively, the "Notes".
"Notice of Actionable Default" shall have the meaning
assigned to such term in the Intercreditor Agreement.
"Notice of Borrowing" shall have the meaning assigned to
such term in Section 2.3(a).
"Notice of Conversion or Continuation" shall have the meaning
assigned to such term in Section 7.7(a).
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Oxford Mortgage" shall mean, collectively, the Mortgages in
favor of the Collateral Agent on the Real Property owned by the Company which
is located in Oxford, North Carolina, as amended, supplemented or otherwise
modified from time to time.
"Parent" shall have the meaning assigned to such term in
Section 10.8.
"Patent" shall have the meaning assigned to such term in the
Pledge and Security Agreement.
"Payment Obligations" shall mean the unpaid principal of and
interest on (including interest accruing after the maturity of the Loans and
L/C Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Company or any Local Borrowing Subsidiary,
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
Company and each Local Borrowing Subsidiary to any Administrative Agent, Lender
or Issuing 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, any other Loan Document, the
Letters of Credit, or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, reasonable and documented costs, reasonable and
documented expenses (including all fees, charges and disbursements of counsel
to the Administrative Agents, the Collateral Agent or to any Lender or Issuing
Lender that are required to be paid by the Company pursuant hereto) or
otherwise.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" shall mean the purchase by the
Company or any of its Subsidiaries of all or substantially all of the assets or
all of the stock (other than directors' qualifying shares) of one or more
Persons, or of all or substantially all of the assets which comprise any
business unit of any such person, if such purchase or acquisition complies with
the following criteria:
(a) no Default or Event of Default shall be in effect prior
to or after giving effect to such purchase, and the Company shall have
delivered to the Administrative Agents a certificate of a Responsible Officer
of the Company to such effect;
(b) after giving effect to the consummation of such purchase
and to the incurrence of any Indebtedness associated therewith, the Company
shall be in pro forma compliance with the covenants in Section 11.1, and the
Company shall have delivered to the Administrative Agents such financial
information as the Administrative Agents shall reasonably request to
demonstrate such pro forma compliance;
(c) the Person or business unit purchased shall be in
business of the same general type as conducted on the Closing Date by the
Company and its Subsidiaries;
(d) any Person whose stock is directly or indirectly
purchased shall be, after giving effect to such purchase, a direct or an
indirect wholly-owned subsidiary of the Company; and
(e) the aggregate fair market value of the consideration paid
by the Company and its Subsidiaries (including any assumption of Indebtedness
in connection with all such purchases, but excluding any such consideration
paid with the proceeds of, or Stock or Stock Equivalents issued pursuant to, an
Equity Offering and reduced by an amount equal to the Net Proceeds received by
the Company and its Subsidiaries from any Net Proceeds Event on account of any
Resale Transaction with respect to any Permitted Acquisition) for all such
purchases shall not exceed $50,000,000; provided, however, that, to the extent
that such aggregate fair market value exceeds $20,000,000, (A) no Loan Party
shall use cash or Cash Equivalents (except any proceeds of Capital
Contributions or Indebtedness permitted hereunder) or proceeds of
Multi-Currency Loans for such purchase and (B) after giving effect to such
purchase on the date thereof, the Aggregate Outstanding Multi-Currency
Extensions of Credit (other than Undrawn L/C Obligations) shall not exceed 50%
of the Aggregate Multi-Currency Commitment.
"Permitted Intercompany Transfers" shall mean any:
(i) merger or consolidation of any Subsidiary of the Company
with or into the Company; provided, however, that the Company shall be the
continuing or surviving corporation;
(ii) merger or consolidation of any Subsidiary of the Company
with or into any one or more wholly-owned Subsidiaries of the Company (or to
any Person which, after giving effect to such merger or consolidation and to
any other concurrent merger or consolidation involving the Company or any of
its Subsidiaries that is permitted under Section 11.5, is a wholly-owned
Subsidiary of the Company); provided, however, that if such merger or
consolidation involves a Subsidiary Guarantor and a Subsidiary of the Company
that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the
continuing or surviving corporation or, if such Subsidiary Guarantor shall not
be the continuing or surviving corporation, the continuing or surviving
corporation shall become a Subsidiary Guarantor (prior to or concurrently with
the consummation of such merger or consolidation);
(iii) (A) any liquidation and distribution by any Subsidiary
of the Company of its assets to the Company or to any one or more Subsidiary
Guarantors (or to any Person which, simultaneously with such transaction and
after giving effect to such liquidation and distribution and to any other
concurrent liquidation and distribution involving any of the Company's
Subsidiaries that is permitted under Section 11.5, shall become a Subsidiary
Guarantor and the Company shall comply with Sections 10.10, 10.11 and 10.12 to
the extent required thereby) or, if such Subsidiary is not a Subsidiary
Guarantor, to any one or more wholly-owned Subsidiaries of the Company or (B)
any liquidation and distribution by any Subsidiary of the Company that is not a
Subsidiary Guarantor to any wholly-owned Subsidiary of the Company that is not
a Subsidiary Guarantor;
(iv) any sale, lease, assignment, transfer or any other
disposition by the Company of, in one transaction or a series of related
transactions, all or any part of its business or assets to any Subsidiary
Guarantor;
(v) any sale, lease, assignment, transfer or any other
disposition by any Subsidiary of, in one transaction or a series of related
transactions, all or any part of its business or assets to the Company or, if
such Subsidiary is a Subsidiary Guarantor, to any Subsidiary Guarantor or, if
such Subsidiary is not a Subsidiary Guarantor, to any other wholly-owned
Subsidiary of the Company; or
(vi) the sale, lease, assignment, transfer or other disposal
by the Company or any of its Subsidiaries of any Disposition Assets (including,
without limitation, capital stock constituting Disposition Assets) to the
Company or any of its Subsidiaries or the merger or consolidation or
liquidation with or into the Company or any of its Subsidiaries of any
Subsidiary of the Company listed on Schedule 8.13 as being scheduled for
dissolution; provided, however, that the Company or such Subsidiary not listed
on Schedule 8.13 shall be the continuing or surviving corporation;
provided, however, that, after giving effect to any such
Permitted Intercompany Transfer, the Collateral Agent shall maintain a security
interest in any property so transferred in which it had a security interest
prior to such Permitted Intercompany Transfer with the same priority as prior
to such Permitted Intercompany Transfer.
"Permitted Joint Venture" shall mean a joint venture
arrangement (whether structured as a corporation, partnership or other
contractual relationship) between the Company or any of its Subsidiaries, on
the one hand, and a third party that is not directly or indirectly controlled
by Ronald O. Perelman, on the other hand, the primary business of which joint
venture is the development, manufacture, distribution and/or sale (including
marketing and advertising) of products relating to the beauty, skin care,
fragrance and/or personal care businesses or otherwise derived from the
proprietary intellectual property of the Company and its Subsidiaries (or of
holding properties incidental to such businesses).
"Permitted M&FH Loan Amount" shall have the meaning assigned
to such term in Section 11.2(i).
"Person" shall mean 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 whatever nature.
"Petroleum Products" shall mean gasoline, diesel fuel, motor
oil, waste or used oil, heating oil, kerosene and any other petroleum products,
including crude oil or any fraction thereof.
"Plan" shall mean at any particular time, any employee
benefit plan which is covered by ERISA and in respect of which the Company or a
Commonly Controlled Entity is (or, if such plan was terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge and Security Agreement" shall mean the Pledge and
Security Agreement, substantially in the form of Exhibit F, executed by the
Company and each other Guarantor, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.
"Pledged Debt Instruments" shall have the meaning assigned to
such term (or any analogous term) in the Pledge and Security Agreement.
"Pledged Stock" shall have the meaning assigned to such term
(or any analogous term) in the Pledge and Security Agreement.
"Potential Withdrawal Liability" shall have the meaning
assigned to such term in Section 8.8.
"Pounds" shall mean pounds sterling in lawful currency of the
United Kingdom.
"Prepayment Fee" shall mean, with respect to any prepayment
of the Term Loans (whether optional or mandatory) pursuant to Section 7.2,
Section 7.3 (except any prepayment required under Section 7.3(c)) or Section
14.1(c) during any period set forth below, a fee equal to the percentage of the
aggregate principal amount of such prepayment set forth opposite such period:
Prepayment Date Prepayment Fee
--------------- --------------
On or prior to the first anniversary of the Closing Date 5.00%
After the first anniversary of the Closing Date and 3.00%
on or prior to the second anniversary of the Closing Date
After the second anniversary of the Closing Date and 1.00%
on or prior to the third anniversary of the Closing Date
After the third anniversary of the Closing Date None
"Prior Tax Sharing Agreement" shall mean the Tax Sharing
Agreement entered into as of June 24, 1992, as amended and restated, among the
Company and certain of its Subsidiaries, Revlon, Revlon Holdings and Mafco.
"Proceeds" shall have the meaning assigned to such term in
the UCC.
"Property Loss Event" shall mean (a) any loss of or damage to
property of the Company or any of its Subsidiaries or (b) any taking of
property of the Company or any of its Subsidiaries.
"Protective Advances" means all expenses, disbursements and
advances incurred by the Multi-Currency Administrative Agent pursuant to the
Loan Documents after the occurrence and during the continuance of an Event of
Default that the Multi-Currency Administrative Agent, in its sole discretion
exercised reasonably, deems necessary or desirable to preserve or protect the
Multi-Currency Collateral or any portion thereof or to enhance the likelihood,
or maximize the amount, of repayment of the Payment Obligations of the
Multi-Currency Lenders; provided, however, that the aggregate principal amount
of such Protective Advances shall not exceed the lesser of $10,000,000 and the
aggregate amount of the unused Multi-Currency Commitments.
"Real Property" of any Person shall mean the Land of such
Person, together with the right, title and interest of such Person, if any, in
and to the streets, the Land lying in the bed of any streets, roads or avenues,
opened or proposed, in front of, the air space and development rights
pertaining to the Land and the right to use such air space and development
rights, all rights of way, privileges, liberties, tenements, hereditaments and
appurtenances belonging or in any way appertaining thereto, all fixtures, all
easements now or hereafter benefiting the Land and all royalties and rights
appertaining to the use and enjoyment of the Land, including all alley, vault,
drainage, mineral, water, oil and gas rights, together with all of the
buildings and other improvements now or hereafter erected on the Land and any
fixtures appurtenant thereto.
"Refunded Swing Line Loans" shall have the meaning assigned
to such term in Section 4.1(c).
"Register" shall have the meaning assigned to such term in
Section 14.6(c).
"Related Fund" shall mean any Fund that is advised or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of
an entity that administers or manages a Lender.
"Release" shall mean, with respect to any Person, any
release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration, in each case, of any Hazardous
Material into the indoor or outdoor environment or into or out of any property
owned, leased or operated by such Person, including the movement of Hazardous
Materials through or in the air, soil, surface water, ground water or property.
"Remedial Action" shall mean all actions required to (a)
clean up, remove, treat or in any other way address any Hazardous Material in
the indoor or outdoor environment, (b) prevent the Release or threat of Release
or minimize the further Release so that a Hazardous Material does not migrate
or endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"Reorganization" shall mean with respect to any Multiemployer
Plan, the condition that such Plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event" shall mean any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the 30-day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. ss. 4043.
"Required Lenders" shall mean the Required Term Loan Lenders
and the Required Multi-Currency Lenders.
"Required Multi-Currency Lenders" at any date shall mean (i)
until all Payment Obligations arising under the Multi-Currency Facility have
been Fully Satisfied, the Multi-Currency Lenders having more than 50% of the
Aggregate Multi-Currency Commitment then in effect or, after the Multi-Currency
Termination Date, 50% of the Aggregate Actual Outstanding Multi-Currency
Extensions of Credit then outstanding; provided, however, that for purposes of
determining "Required Multi-Currency Lenders," Swing Line Loans shall be deemed
to be held ratably by the Multi-Currency Lenders and not by the Swing Line
Lender; provided, further, that a Non-Funding Lender shall not be included in
the calculation of "Required Multi-Currency Lenders;" and (ii) after all such
Payment Obligations have been Fully Satisfied, the Term Loan Lenders having
more than 50% of the principal amount of all Term Loans then outstanding.
"Required Term Loan Lenders" at any date shall mean (i) until
all Payment Obligations arising under the Term Loan Facility have been Fully
Satisfied, the Term Loan Lenders having more than 50% of the Aggregate Term
Loan Commitment then in effect or, after the Closing Date, 50% of the principal
amount of all Term Loans then outstanding; and (ii) after all such Payment
Obligations have been Fully Satisfied, the Multi-Currency Lenders having more
than 50% of the Aggregate Multi-Currency Commitment then in effect or, after
the Multi-Currency Termination Date, 50% of the Aggregate Actual Outstanding
Multi-Currency Extensions of Credit then outstanding; provided, however, that
for purposes of determining "Required Term Loan Lenders," Swing Line Loans
shall be deemed to be held ratably by the Multi-Currency Lenders and not by the
Swing Line Lender; provided, further, that a Non-Funding Lender shall not be
included in the calculation of "Required Term Loan Lenders."
"Requirement of Law" for any Person shall mean 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.
"Resale Transaction" shall mean the sale, transfer or other
disposition by the Company or any of its Subsidiaries of any asset acquired by
it after the date hereof pursuant to an Investment or Permitted Acquisition;
provided, however, that, within 180 days following the consummation of such
Investment or Permitted Acquisition, the Administrative Agents receive written
notice from the Company identifying such asset (with reasonable specificity)
and stating that such asset is being held for disposition in a Resale
Transaction.
"Responsible Officer" shall mean any officer at the level of
Vice President or higher of the relevant Person or, with respect to financial
matters, the Chief Financial Officer, Treasurer or Controller of the relevant
Person.
"Restricted Payment" shall mean (a) any payment by the
Company of a dividend (other than a dividend payable solely in common stock of
the Company) or distribution on, or any payment by the Company or any of its
Subsidiaries on account of the purchase, redemption or retirement of, or any
other distribution on, any Stock or Stock Equivalents of the Company (including
any such payment or distribution in cash or in property or obligations of the
Company or any of its Subsidiaries), (b) any loan or advance, or the making of
any other investment, by the Company or any of its Subsidiaries to or in any
Affiliate of the Company, (c) the payment by the Company or any of its
Subsidiaries of any management or administrative fee (including, without
limitation, any management consulting and financial services fees) to any
Affiliate of the Company or of any salary, bonus or other form of compensation
(other than in the ordinary course of business) to any Person who is a
significant stockholder or principal officer of any Affiliate of the Company,
or (d) any payment by the Company or any of its Subsidiaries to any Affiliate
of the Company pursuant to the Prior Tax Sharing Agreement or (e) any payment
by the Company or any of its Subsidiaries of principal or interest in respect
of amounts from time to time outstanding under any Capital Contribution Note;
provided, however, that any amounts paid from time to time to Revlon
(including, without limitation, payments to Revlon pursuant to the Company Tax
Sharing Agreement) to finance the actual payment by Revlon of expenses and
obligations incurred by Revlon to Persons other than Affiliates of Revlon (or
officers or employees of any such Affiliate) shall not be "Restricted Payments"
to the extent that such expenses and obligations, if they had been incurred by
the Company, would not have been prohibited hereunder and were incurred by
Revlon without violating the provisions of Section 12(p).
"REV Holdings" shall mean REV Holdings LLC, a Delaware
limited liability company.
"Revlon" shall mean Revlon, Inc., a Delaware corporation and
the immediate Parent of the Company.
"Revlon Holdings" shall mean Revlon Holdings LLC, a Delaware
limited liability company.
"Revolving Credit Loan" and "Revolving Credit Loans" shall
have the meanings assigned to such terms in Section 3.1(a).
"Revolving Credit Note" shall have the meaning assigned to
such term in Section 3.2(c).
"RGI" shall mean RGI Group Incorporated, a Delaware
corporation.
"ROP" shall have the meaning assigned to such term in Section
12(g).
"RPH" shall mean Revlon Professional Holding Company LLC, a
Delaware limited liability company.
"S&P" shall mean Standard & Poor's Corporation (and any
successor thereto).
"Secured Obligations" shall mean, collectively (i) in the
case of the Company, the Payment Obligations of the Company, (ii) in the case
of each Loan Party, the obligations of each Loan Party under the Guaranty and
the other Loan Documents to which it is a party and (iii) the Designated
Eligible Obligations.
"Secured Parties" shall mean, collectively, the Lenders, the
Issuing Lenders, the Administrative Agents, the Collateral Agent and any other
holder of any Secured Obligation.
"Securities Account" shall have the meaning assigned to such
term in the UCC.
"Securities Account Control Agreement" shall have the meaning
specified in the Pledge and Security Agreement.
"Securities Intermediary" shall have the meaning assigned to
such term in the UCC.
"Security Documents" shall mean the Intercreditor Agreement,
the Guaranty, the Pledge and Security Agreement, the Mortgages and all other
security documents hereafter delivered to the Administrative Agents granting a
security interest in any asset or assets of any Loan Party to secure the
Payment Obligations of any Borrower hereunder, under the Notes and/or under any
Draft and any other Secured Obligations, or to secure any guarantee of any such
Payment Obligations and other Secured Obligations (and including (a) the
Multi-Currency Debenture between the Company, Charles of the Ritz Group Ltd.,
Charles Revson Inc. and Revlon International Corporation (UK Branch), as
Chargors, and the Collateral Agent, (b) the Term Loan Debenture between the
Company, Charles of the Ritz Group Ltd., Charles Revson Inc. and Revlon
International Corporation (UK Branch), as Chargors, and the Collateral Agent,
(c) the Share Charge Agreement between Revlon International Corporation and the
Collateral Agent, (d) the Share Charge Agreement between the Company and the
Collateral Agent, (e) the Share Pledge Agreement between Revlon International
Corporation and the Collateral Agent and (f) the Trademark Security Agreement
among the Company, Charles of the Ritz Group Ltd., Charles Revson Inc. and the
Collateral Agent, as each may be amended, amended and restated, supplemented or
otherwise modified from time to time).
"Senior Secured Debt" shall mean, at any date, the aggregate
principal amount of any secured Indebtedness of the Company and its
Subsidiaries described in clauses (a), (b), (c), (d), (e) (to the extent of any
reimbursement obligation that is unpaid) and (f) in the definition of
"Indebtedness" at such date and all Indebtedness of the types referred to in
this definition which is guaranteed directly or indirectly by the Company or
any of its Subsidiaries, determined on a consolidated basis in accordance with
GAAP, other than any Indebtedness, including letters of credit, secured solely
by cash collateral to the extent permitted hereunder.
"Senior Secured Leverage Ratio" shall mean, for any period,
the amount equal to the ratio of (a) Senior Secured Debt on the last day of
such period to (b) EBITDA of the Company and its Subsidiaries for the period of
four consecutive fiscal quarters ended on the last day of such period.
"Significant Trademark" shall mean each Trademark of the
Company and its Domestic Subsidiaries on the Closing Date and each other
Trademark from time to time which, in either case, is of such a nature that the
Company or its Subsidiaries in accordance with its ordinary business practice
then in effect would file an application for trademark registration in the
United States Patent and Trademark Office.
"Single Employer Plan" shall mean any Plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA.
"Specified Default" shall mean any Default by the Company and
its Subsidiaries in the observance or performance of any covenant or agreement
contained in Sections 10.10, 10.11, 10.12, 10.13 or 10.14.
"Specified Dispositions" shall mean the sale, transfer or
other disposition of (a) the Stock of Subsidiaries constituting Disposition
Assets, (b) assets of any Subsidiary constituting a Disposition Asset, (c) any
assets (including, without limitation, Stock) directly relating to the brands
constituting Disposition Assets and (d) any other asset which constitutes a
Disposition Asset.
"Special Purpose Vehicle" means any special purpose funding
vehicle identified as such in writing by any Lender to the Administrative
Agent.
"Standby Letter of Credit" shall have the meaning assigned to
such term in Section 5.1(a).
"Stated Multi-Currency Termination Date" shall mean the date
which is the fifth anniversary of the Closing Date.
"Stock" means shares of capital stock (whether denominated as
common stock or preferred stock), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated)
of or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
"Stockholders Agreement" shall mean the Stockholders
Agreement dated February 20, 2004 by and between Revlon and Fidelity Management
& Research Co., as amended through the date hereof and as the same may be
amended, supplemented or otherwise modified from time to time.
"Subordinated Notes" shall mean the notes in an aggregate
principal amount not to exceed $327,078,000, issued by the Company pursuant to
the Subordinated Notes Indenture, as such Subordinated Notes may be amended,
supplemented or otherwise modified from time to time to the extent permitted by
Section 11.9.
"Subordinated Notes Indenture" shall mean the Indenture,
dated as of February 1, 1998, between the Company and U.S. Bank Trust National
Association (formerly known as First Trust National Association), relating to
the 8-5/8% Senior Subordinated Notes of the Company, as the same may be
amended, supplemented or otherwise modified from time to time to the extent
permitted by Section 11.9.
"Subordinated Notes Redemption" shall mean the redemption,
repurchase, defeasance or repayment by the Company of the outstanding principal
amount of the Subordinated Notes, to such an extent that not more than
$25,000,000 of the aggregate principal amount thereof remains outstanding, with
(a) proceeds of Capital Contributions (or contributions of Subordinated Notes),
whether or not in exchange for equity, from Revlon, (b) proceeds of
Indebtedness of the Company that is permitted to be incurred under Section
11.2(b), (c) proceeds of Indebtedness of the Company that is permitted to be
incurred under 11.2(o) to the extent such Subordinated Notes are redeemed,
repurchased, defeased or repaid within 180 days of the incurrence of such
Indebtedness, (d) Excess Cash Flow as permitted under Section 11.9(c)(iv) or
(e) funds from other sources acceptable to the Required Lenders.
"Subsidiary" of any Person shall mean a corporation or other
entity of which an aggregate of more than 50% of the shares of Stock or Stock
Equivalents having ordinary voting power (irrespective of whether, at the time,
such Stock or Stock Equivalents have or might have such power only by reason of
the happening of a contingency) to elect the directors of such corporation, or
other Persons performing similar functions for such entity, are owned or
controlled, directly or indirectly, by such Person or one or more Subsidiaries
of such Person; provided, however, 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 Company, but shall exclude RPH, and (b)
unless otherwise qualified, all references to a "wholly-owned Subsidiary" in
this Agreement shall refer to a Subsidiary or Subsidiaries of the Company of
which the Company directly or indirectly owns all of the capital stock or other
equity interests (other than directors' qualifying shares).
"Subsidiary Guarantor" shall mean each Guarantor that is a
Subsidiary of the Company.
"Supermajority Multi-Currency Lenders" at any date shall mean
the Multi-Currency Lenders having more than 66-2/3% of the Aggregate
Multi-Currency Commitment then in effect or, after the Multi-Currency
Termination Date, 66-2/3% of the Aggregate Actual Outstanding Multi-Currency
Extensions of Credit then outstanding; provided, however, that for purposes of
determining "Supermajority Multi-Currency Lenders," Swing Line Loans shall be
deemed to be held ratably by the Multi-Currency Lenders and not by the Swing
Line Lender; provided, further, that a Non-Funding Lender shall not be included
in the calculation of "Supermajority Multi-Currency Lenders."
"Surplus Assets" shall mean personal property of the Company
and its Subsidiaries which has been used in the business of the Company and its
Subsidiaries for not less than one year and which is sufficiently immaterial to
the conduct of the business of the Company and its Subsidiaries that the
contribution thereof to any Permitted Joint Venture would not result in the
acquisition by the Company or any of its Subsidiaries of a substantially
similar item of personal property during the period of one year following the
date of such contribution.
"Swing Line Lender" shall mean Citicorp or any other
Multi-Currency Lender that becomes the Multi-Currency Administrative Agent or
agrees, with the approval of the Multi-Currency Administrative Agent and the
Company, to act as the Swing Line Lender hereunder, in each case, in its
capacity as the Swing Line Lender hereunder.
"Swing Line Loan Request" shall have the meaning assigned to
such term in Section 4.1(a).
"Swing Line Loans" shall have the meaning assigned to such
term in Section 4.1(a).
"Syndicated Lender" shall mean each Lender, other than the
Local Fronting Lenders (acting in their respective capacities as such);
collectively, the "Syndicated Lenders".
"Syndicated Loan" shall mean a Term Loan, a Revolving Credit
Loan or a Swing Line Loan, as the context shall require; collectively, the
"Syndicated Loans".
"Syndication Agent" shall mean UBS Securities LLC, in its
capacity as Syndication Agent.
"Synthetic Purchase Agreement" shall mean any agreement
pursuant to which the Company or any of its Subsidiaries is or may become
obligated to make (a) any payment in connection with the purchase by any third
party from a Person other than the Company or any of its Subsidiaries of any
Stock or Stock Equivalents of the Company or any of its Subsidiaries or any
Indebtedness referred to in Section 11.9 (other than in connection with any
such payment which the Company or any of its Subsidiaries would be permitted to
make pursuant to Section 11.7 or 11.9, as applicable) or (b) any payment
(except as otherwise expressly permitted by Section 11.7 or 11.9), the amount
of which is determined by reference to the price or value at any time of any
such Stock, Stock Equivalents or Indebtedness; provided, however, that no
phantom stock or similar plan providing for payments only to current or former
directors, officers or employees of the Company or any of its Subsidiaries (or
to their heirs or estates) shall be deemed to be a Synthetic Purchase
Agreement.
"Target Operating Day" shall mean any date that is not (a) a
Saturday or Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System (or any
successor settlement system) is not operating (as determined by the
Administrative Agents).
"Taxable Lender" shall have the meaning assigned to such term
in Section 7.12(e).
"Term Loan" and "Term Loans" shall have the meanings assigned
to such terms in Section 2.1.
"Term Loan Administrative Agent" shall have the meaning
assigned to such term in the preamble hereto, and shall include any successor
"Term Loan Administrative Agent" pursuant to Section 13.7.
"Term Loan Collateral" shall have the meaning specified in
the Intercreditor Agreement.
"Term Loan Commitment" of any Term Loan Lender shall mean the
obligation of such Term Loan Lender to make Term Loans to the Company on the
Closing Date, in an aggregate principal amount not to exceed the amount set
forth opposite such Term Loan Lender's name on Schedule II; collectively, as to
all such Term Loan Lenders, the "Term Loan Commitments".
"Term Loan Facility" shall mean the Term Loan Commitment and
the provisions herein related to the Term Loans.
"Term Loan Lender" shall mean each bank or other financial
institution from time to time party hereto which holds a Term Loan Commitment
or a Term Loan; collectively, the "Term Loan Lenders".
"Term Loan Maturity Date" shall mean the date which is the
sixth anniversary of the Closing Date.
"Term Loan Note" shall mean a promissory note of the Company,
substantially in the form of Exhibit A with appropriate insertions as to date
and principal, payable to a Term Loan Lender.
"Term Loan Percentage" shall mean, at any date with respect
to each Term Loan Lender, the percentage which the Term Loan Commitment of such
Term Loan Lender constitutes of the Aggregate Term Loan Commitment (or, at any
time after the Closing Date, the percentage which the aggregate outstanding
principal amount of such Term Loan Lender's Term Loans at such date constitutes
of the aggregate outstanding principal amount of Term Loans of all Term Loan
Lenders at such date).
"Term Loan Termination Date" shall mean the earliest of (a)
the Term Loan Maturity Date, (b) the Early Termination Date and (c) the date on
which the Payment Obligations become due and payable pursuant to Article XII.
"Trademark" shall have the meaning assigned to such term in
the Pledge and Security Agreement.
"Tranche" shall mean the collective reference to Eurodollar
Loans or Eurocurrency Loans, the Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not such
Eurodollar Loans or Eurocurrency Loans, as the case may be, shall originally
have been made on the same day).
"Transferee" shall mean any Eligible Assignee, Special
Purpose Vehicle and participant to which Sections 14.6(a), 14.6(f) and 14.6(g),
respectively, apply.
"UCC" shall have the meaning specified in the Pledge and
Security Agreement.
"Undrawn L/C Obligations" shall mean the portion, if any, of
the Payment Obligations constituting the contingent obligation of the Company
to reimburse each Issuing Lender in respect of the then undrawn and unexpired
portions of the Letters of Credit issued by such Issuing Lender pursuant to
Section 5.4.
"United Kingdom" shall mean the United Kingdom of Great
Britain and Northern Ireland.
"United States" shall mean any state of the United States of
America and the District of Columbia.
"Unfunded Pension Amount" shall have the meaning assigned to
such term in Section 8.8.
"Uniform Customs" shall mean the Uniform Customs and Practice
for Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500 or International Standard Practices ISP 98 (1998),
International Chamber of Commerce Publication No. 590, as appropriate, in
either case, as the same may be amended from time to time.
"Unpledged International Property" shall mean (a) the portion
(if any) of the Stock of each first-tier Foreign Subsidiary of the Company or
any Subsidiary Guarantor which is not pledged to the Collateral Agent pursuant
to the Pledge and Security Agreement and (b) any patents, trademarks and
copyrights of the Foreign Subsidiaries of the Company.
"Updated Appraisal" shall mean each appraisal (other than the
Initial Appraisals) that is conducted after the Closing Date pursuant to
Section 10.15 or 10.17(b) for purpose of determining the Borrowing Base, in
form and substance reasonably satisfactory to the Multi-Currency Administrative
Agent and performed by an appraiser that is reasonably satisfactory to the
Multi-Currency Administrative Agent.
"Voting Stock" shall have the meaning assigned to such term
in Section 10.11(b).
"Working Capital" shall mean, for any Person at any date, the
amount, if any, by which the Consolidated Current Assets of such Person at such
date exceeds the Consolidated Current Liabilities of such Person at such date.
"Working Day" shall mean any Business Day other than a
Business Day on which commercial banks in London, England are authorized or
required by law to close; provided, however, that when such term is used for
the purpose of determining the date on which the Eurocurrency Base Rate is
determined for any loan denominated in euro for any Interest Period therefor
and for purposes of determining the first and last day of any such Interest
Period, references to Working Days shall be deemed to be references to Target
Operating Days.
Section 1.2 Other Definitional Provisions. (a) All terms
defined in this Agreement shall have the defined meanings when used in the
Notes, the Security Documents, any other Loan Document or any certificate or
other document made or delivered pursuant hereto or thereto unless otherwise
defined therein.
(b) As used herein, in the Notes, in the Security Documents,
in the other Loan Documents and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1, and accounting terms partly defined in Section 1.1 to the extent not
defined, shall have the respective meanings assigned to them under GAAP. To the
extent that the definitions of accounting terms herein are inconsistent with
the meanings of such terms under GAAP, the definitions contained herein shall
control.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement, the Notes, any Security Documents
or any other Loan Document shall refer to this Agreement, such Note, such
Security Document or such other Loan Document, as the case may be, as a whole
and not to any particular provision of this Agreement, such Note, such Security
Document or such other Loan Document, as the case may be; and Article, Section,
Schedule and Exhibit references contained in this Agreement are references to
Articles, Sections, Schedules and Exhibits in or to this Agreement, unless
otherwise specified. The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
Article II
AMOUNTS AND TERMS OF TERM LOAN COMMITMENT
Section 2.1 Term Loan Commitments. Subject to the terms and
conditions of this Agreement, each Term Loan Lender severally agrees to make
term loans in Dollars (individually, a "Term Loan"; collectively, the "Term
Loans") to the Company under the Term Loan Commitments, which Term Loans shall
be made in a single drawing on the Closing Date; provided, however, that the
aggregate outstanding amount of the Term Loans made by any Term Loan Lender
shall not exceed such Term Loan Lender's Term Loan Commitment. The Term Loans
may from time to time be (a) Eurodollar Loans, (b) Alternate Base Rate Loans or
(c) a combination thereof, as determined by the Company and notified to the
Term Loan Administrative Agent in accordance with Section 2.3 and 7.7;
provided, however, that the Term Loans borrowed on the Closing Date shall
initially be made as Alternate Base Rate Loans. Amounts borrowed under this
Section 2.1 and repaid or prepaid may not be reborrowed.
Section 2.2 Obligations of the Company. The Company agrees
that each Term Loan made by each Term Loan Lender pursuant hereto shall
constitute the promise and obligation of the Company to pay to the Term Loan
Administrative Agent, for the benefit of such Term Loan Lender, at the office
of the Term Loan Administrative Agent listed in Section 14.2, in lawful money
of the United States of America and in immediately available funds the
aggregate unpaid principal amount of the Term Loans made by such Term Loan
Lender pursuant to Section 2.1, which amounts shall be due and payable (whether
at maturity or by acceleration) as set forth in this Agreement and, in any
event, on the Term Loan Termination Date.
(b) The Company agrees that each Term Loan Lender is
authorized to record (i) the date and amount of the Term Loan made by such Term
Loan Lender pursuant to Section 2.1, (ii) the date of each interest rate
conversion pursuant to Section 7.7 and the principal amount subject thereto,
(iii) the date and amount of each payment or prepayment of principal of and
interest with respect to each Term Loan and (iv) in the case of each Eurodollar
Loan, the interest rate and Interest Period, in the books and records of such
Term Loan Lender and in such manner as is reasonable and customary for such
Term Loan Lender and a certificate of an officer of such Term Loan Lender,
setting forth in reasonable detail the information so recorded, shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided, however, that the failure to make any such recording or any error in
such recording shall not in any way affect the Payment Obligations of the
Company hereunder.
(c) The Company agrees that, upon the request to the Term
Loan Administrative Agent by any Term Loan Lender at any time, the Term Loan of
such Term Loan Lender shall be evidenced by a Term Loan Note, payable to the
order of such Term Loan Lender and representing the obligation of the Company
to pay a principal amount equal to the amount of the Term Loan Commitment of
such Term Loan Lender or, if less, the aggregate unpaid principal amount of the
Term Loan made by such Term Loan Lender, with interest on the unpaid principal
amount thereof from time to time outstanding under such Term Loan Note as
prescribed in Section 7.5.
Section 2.3 Procedure for Borrowing Term Loans. (a) The
Company may request a borrowing under the Term Loan Commitments on the Closing
Date, subject to Section 2.1, by giving irrevocable notice to the Term Loan
Administrative Agent at least one Business Day prior thereto, which notice
shall be in substantially the form of Exhibit H-1 (a "Notice of Borrowing")
and specify (i) the aggregate principal amount to be borrowed and (ii) the
Closing Date. Upon receipt of any such notice, the Term Loan Administrative
Agent will promptly notify each Term Loan Lender thereof. Each Term Loan
Lender will make available to the Term Loan Administrative Agent in
immediately available funds at the office of the Term Loan Administrative
Agent specified in Section 14.2 (or at such other location as the Term Loan
Administrative Agent may direct), by 1:00 P.M., New York City time, on the
Closing Date an amount equal to the Term Loan Percentage of such Term Loan
Lender multiplied by the aggregate principal amount of the Term Loans
requested to be made on the Closing Date in Dollars, in funds immediately
available to the Term Loan Administrative Agent. The proceeds of the Term
Loans received by the Term Loan Administrative Agent hereunder on the
applicable borrowing date shall promptly be made available to the Company by
the Term Loan Administrative Agent's crediting the account of the Company
designated to the Term Loan Administrative Agent with the aggregate amount
actually received by the Term Loan Administrative Agent from the Term Loan
Lenders and in like funds as received by the Term Loan Administrative Agent.
(b) The failure of any Term Loan Lender to make the Term Loan
to be made by it on the applicable borrowing date shall not relieve any other
Term Loan Lender of its obligation hereunder to make its Term Loan on such
borrowing date, but no Term Loan Lender shall be responsible for the failure of
any other Term Loan Lender to make the Term Loan to be made by such other Term
Loan Lender on such borrowing date.
Section 2.4 Amortization of Term Loans. (a) The Term Loans of
each Term Loan Lender shall mature in twenty consecutive quarterly
installments, each of which shall be in an amount equal to such Term Loan
Lender's Term Loan Percentage multiplied by the amount set forth below opposite
such installment (as such amounts may be reduced from time to time in
accordance with Section 7.2(b) or 7.4(d)):
Installment Principal Amount
----------- ----------------
October 15, 2005 $2,000,000
January 15, 2006 $2,000,000
April 15, 2006 $2,000,000
July 15, 2006 $2,000,000
October 15, 2006 $2,000,000
January 15, 2007 $2,000,000
April 15, 2007 $2,000,000
July 15, 2007 $2,000,000
October 15, 2007 $2,000,000
January 15, 2008 $2,000,000
April 15, 2008 $2,000,000
July 15, 2008 $2,000,000
October 15, 2008 $2,000,000
January 15, 2009 $2,000,000
April 15, 2009 $2,000,000
July 15, 2009 $2,000,000
October 15, 2009 $2,000,000
January 15, 2010 $2,000,000
April 15, 2010 $2,000,000
Term Loan Maturity $762,000,000
Date
(b) Any Term Loans then outstanding shall be repaid in full
(together with accrued interest and other amounts owing on account thereof) on
the Term Loan Termination Date.
Section 2.5 Use of Proceeds of Term Loans. The proceeds of
the Term Loans hereunder shall be used by the Company for the purpose of
refinancing certain outstanding Indebtedness of the Company and its
Subsidiaries under the Existing Agreement and other existing Indebtedness and
to redeem or repurchase Indebtedness issued under the Designated Senior Secured
Indenture (including fees and expenses in connection with such refinancing,
repurchase and redemption), and for general corporate purposes not prohibited
hereunder. To the extent that any Designated Senior Secured Notes shall remain
outstanding after the Closing Date, an amount of the proceeds of the Term Loans
and, if necessary, Revolving Credit Loans made on the Closing Date, sufficient
to purchase, redeem or defease such Designated Senior Secured Notes and pay
interest and any premium thereon shall, at the Company's option, be deposited
in a defeasance trust with the trustee under the Designated Senior Secured
Indenture or placed in a Cash Collateral Account under the direction of the
Term Loan Administrative Agent pending their use to repurchase, redeem or
defease such Designated Senior Secured Notes.
Article III
AMOUNT AND TERMS OF REVOLVING CREDIT SUB-FACILITY
Section 3.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions of this Agreement, each Multi-Currency Lender severally
agrees to make loans in Dollars to the Company (individually, a "Revolving
Credit Loan"; collectively, the "Revolving Credit Loans") under the Aggregate
Multi-Currency Commitment from time to time during the Commitment Period in an
aggregate principal amount at any one time outstanding not to exceed such
Multi-Currency Lender's Multi-Currency Commitment Percentage of the Aggregate
Multi-Currency Commitment; provided, however, that at no time (after giving
effect to the making of such Revolving Credit Loans and the use of the proceeds
thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit
exceed the Maximum Multi-Currency Availability. During the Commitment Period,
the Company may use the Aggregate Multi-Currency Commitment by borrowing
Revolving Credit Loans, repaying the Revolving Credit Loans in whole or in part
and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Company shall have the right to send to the
Multi-Currency Administrative Agent, after the Closing Date, one or more
Facilities Increase Notices to request an increase (each a "Facilities
Increase") in the Aggregate Multi-Currency Commitment in a principal amount not
to exceed $50,000,000 in the aggregate for all such requests; provided,
however, that (A) no Facilities Increase shall be requested later than one year
prior to the Stated Multi-Currency Termination Date, and (B) no Facilities
Increase shall become effective earlier than 10 days after the delivery of the
Facilities Increase Notice to the Multi-Currency Administrative Agent in
respect of such Facilities Increase. Nothing in this Agreement shall be
construed to obligate any Lender to negotiate for (whether or not in good
faith), solicit, provide or consent to any increase in the Multi-Currency
Commitments, and any such increase may be subject to changes in any term
herein. The Multi-Currency Administrative Agent shall promptly notify each
Lender of the proposed Facilities Increase and of the proposed terms and
conditions therefor agreed between the Company and the Multi-Currency
Administrative Agent. Each such Lender (and each of their Affiliates and
Related Funds) may, in its sole discretion, commit to participate in such
Facilities Increase by forwarding its commitment to the Multi-Currency
Administrative Agent therefor in form and substance satisfactory to the
Multi-Currency Administrative Agent. The Multi-Currency Administrative Agent
shall allocate, in its sole discretion but in amounts not to exceed for each
such Lender the commitment received from such Lender, Affiliate or Approved
Fund, the Multi-Currency Commitments to be made as part of the Facilities
Increase to the Lenders from which it has received such written commitments. If
the Multi-Currency Administrative Agent does not receive enough commitments
from existing Lenders or their Affiliates or Approved Funds, it may, after
consultation with the Company, allocate to Eligible Assignees any excess of the
proposed amount of such Facilities Increase agreed with the Company over the
aggregate amounts of the commitments received from existing Lenders. Each
Facilities Increase shall become effective on a date agreed by the Company and
the Multi-Currency Administrative Agent (each a "Facilities Increase Date"),
which shall be in any case on or after the date of satisfaction of the
conditions precedent set forth in Section 9.3. The Multi-Currency
Administrative Agent shall notify the Lenders and the Company, on or before
1:00 P.M. (New York City time) on the day following the Facilities Increase
Date of the effectiveness of the Facilities Increase on the Facilities Increase
Date and shall record in the Register all applicable additional information in
respect of such Facilities Increase. On the Facilities Increase Date for any
Facilities Increase, each Lender or Eligible Assignee participating in such
Facilities Increase shall purchase and assume from each existing Multi-Currency
Lender having Revolving Credit Loans and participations in Letters of Credit
outstanding on such Facilities Increase Date, without recourse or warranty, an
undivided interest and participation, to the extent of such Lender's
Multi-Currency Commitment Percentage of the new Multi-Currency Commitments
(after giving effect to such Facilities Increase), in the aggregate outstanding
Revolving Credit Loans and participations in Letters of Credit, so as to ensure
that, on the Facilities Increase Date after giving effect to such Facilities
Increase, each Multi-Currency Lender is owed only its Multi-Currency Commitment
Percentage of the Revolving Credit Loans and participations in Letters of
Credit outstanding on such Facilities Increase Date.
Section 3.2 Obligations of Company. (a) The Company hereby
agrees that each Revolving Credit Loan made by each Multi-Currency Lender to
the Company pursuant hereto shall constitute the promise and obligation of the
Company to pay to such Multi-Currency Lender, at the office of the
Multi-Currency Administrative Agent listed in Section 14.2, in Dollars and in
immediately available funds, the aggregate unpaid principal amount of all
Revolving Credit Loans made by such Multi-Currency Lender pursuant to Section
3.1, which amounts shall be due and payable (whether at maturity or by
acceleration) as set forth in this Agreement and, in any event, on the
Multi-Currency Termination Date.
(b) The Company hereby agrees that each Multi-Currency Lender
is authorized to record (i) the date and amount of each Revolving Credit Loan
made by such Multi-Currency Lender pursuant to Section 3.1, (ii) the date of
each interest rate conversion pursuant to Section 7.7 which is applicable to
such Revolving Credit Loan and the principal amount subject thereto, (iii) the
date and amount of each payment or prepayment of principal of and interest with
respect to each Revolving Credit Loan made by the Company to such
Multi-Currency Lender and (iv) in the case of each Revolving Credit Loan which
bears interest at a rate based upon the Eurodollar Rate, the interest rate and
Interest Period, in the books and records of such Multi-Currency Lender and in
such manner as is reasonable and customary for it and a certificate of an
officer of such Multi-Currency Lender, setting forth in reasonable detail the
information so recorded, shall constitute prima facie evidence of the accuracy
of the information so recorded; provided, however, that the failure to make any
such recording or any error in such recording shall not in any way affect the
Payment Obligations of the Company hereunder.
(c) The Company agrees that, upon the request to the
Multi-Currency Administrative Agent by any Multi-Currency Lender at any time,
the Revolving Credit Loans of such Multi-Currency Lender shall be evidenced by
a promissory note of the Company, substantially in the form of Exhibit B with
appropriate insertions as to date and principal amount (a "Revolving Credit
Note"), payable to the order of such Multi-Currency Lender and representing the
obligation of the Company to pay a principal amount equal to the amount of the
Aggregate Multi-Currency Commitment of such Multi-Currency Lender or, if less,
the aggregate unpaid principal amounts of the Revolving Credit Loans made by
such Multi-Currency Lender, with interest on the unpaid principal amount
thereof from time to time outstanding under such Revolving Credit Note as
prescribed in Section 7.5.
Section 3.3 Procedure for Borrowing Revolving Credit Loans.
(a) The Company may request a borrowing of Revolving Credit Loans during the
Commitment Period on any Working Day, if the Revolving Credit Loans to be
borrowed are Eurodollar Loans, or on any Business Day, if the Revolving Credit
Loans to be borrowed are Alternate Base Rate Loans, by submitting an
irrevocable Notice of Borrowing to the Multi-Currency Administrative Agent,
specifying (i) the aggregate principal amount to be borrowed, (ii) the
requested borrowing date, (iii) the Available Multi-Currency Commitment (after
giving effect to the proposed borrowing), (iv) whether the Revolving Credit
Loans to be borrowed are to be Eurodollar Loans or Alternate Base Rate Loans or
a combination thereof and, if a combination, the respective aggregate amount of
each type of borrowing and (v) if the Revolving Credit Loans to be borrowed are
Eurodollar Loans, the length of the Interest Period or Interest Periods
applicable thereto; provided, however, that any Revolving Credit Loans to be
made to the Company on the Closing Date shall be made as Alternate Base Rate
Loans. Any such notice of borrowing must be received by the Multi-Currency
Administrative Agent prior to 11:00 A.M., New York City time, three Working
Days prior to the requested borrowing date, in the case of Eurodollar Loans,
and one Business Day prior to the requested borrowing date, in the case of
Alternate Base Rate Loans. Each borrowing of Revolving Credit Loans shall,
subject to Section 7.7(g), be in an aggregate principal amount equal to (x)
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (in the case of
Eurodollar Loans) or (y) the lesser of $2,500,000 (or, if less, the maximum
amount which is then available to the Company pursuant to Section 3.1) or a
whole multiple of $500,000 in excess thereof (in the case of Alternate Base
Rate Loans). Upon receipt of any such notice, the Multi-Currency Administrative
Agent will promptly notify each Multi-Currency Lender thereof. Each
Multi-Currency Lender will make available to the Multi-Currency Administrative
Agent at the office of the Multi-Currency Administrative Agent specified in
Section 14.2 (or at such other location as the Multi-Currency Administrative
Agent may direct), by 1:00 P.M., New York City time, on the requested borrowing
date, an amount equal to the Multi-Currency Commitment Percentage of such
Multi-Currency Lender multiplied by the aggregate principal amount of the
Revolving Credit Loans requested to be borrowed in Dollars, in funds
immediately available to the Multi-Currency Administrative Agent. The proceeds
of such Revolving Credit Loans received by the Multi-Currency Administrative
Agent hereunder shall promptly be made available to the Company by the
Multi-Currency Administrative Agent's crediting the account of the Company
designated to the Multi-Currency Administrative Agent with the aggregate amount
actually received by the Multi-Currency Administrative Agent from the
Multi-Currency Lenders and in like funds as received by the Multi-Currency
Administrative Agent.
(b) The failure of any Multi-Currency Lender to make the
Revolving Credit Loan to be made by it on any requested borrowing date shall
not relieve any other Multi-Currency Lender of its obligation hereunder to make
its Revolving Credit Loan on such borrowing date, but no Multi-Currency Lender
shall be responsible for the failure of any other Multi-Currency Lender to make
the Revolving Credit Loan to be made by such other Multi-Currency Lender on
such borrowing date.
Section 3.4 Use of Proceeds of Revolving Credit Loans. The
proceeds of the Revolving Credit Loans hereunder shall be used for the purpose
of refinancing certain outstanding Indebtedness of the Company and its
Subsidiaries under the Existing Agreement and other existing Indebtedness, and
for general corporate purposes not prohibited hereunder.
Article IV
AMOUNT AND TERMS OF SWING LINE SUB-FACILITY
Section 4.1 Swing Line Commitments. (a) Subject to the terms
and conditions hereof, the Swing Line Lender agrees to make swing line loans
(individually, a "Swing Line Loan"; collectively, the "Swing Line Loans") to
the Company in Dollars under the Aggregate Multi-Currency Commitment from time
to time during the Commitment Period in an aggregate principal amount at any
one time outstanding not to exceed $25,000,000; provided, however, that at no
time (after giving effect to the making of such Swing Line Loan and the use of
the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions
of Credit exceed the Maximum Multi-Currency Availability. Amounts borrowed by
the Company under this Section 4.1 may be repaid and, up to but excluding the
last day of the Commitment Period, reborrowed. All Swing Line Loans shall be
made as Alternate Base Rate Loans and shall not be entitled to be converted
into Eurodollar Loans. The Company shall give the Swing Line Lender
irrevocable notice, which notice shall be in substantially the form of Exhibit
H-3 (a "Swing Line Loan Request"), and which notice must be received by the
Swing Line Lender prior to 1:00 P.M., New York City time on the requested
borrowing date, specifying the amount of each requested Swing Line Loan. The
Swing Line Lender shall not make any Swing Line Loan in the period commencing
on the first Business Day after it receives written notice from the
Multi-Currency Administrative Agent or any Multi-Currency Lender that one or
more of the conditions precedent contained in Section 9.2 shall not on such
date be satisfied, and ending when such conditions are satisfied. The Swing
Line Lender shall not otherwise be required to determine that, or take notice
whether, the conditions precedent set forth in Section 9.2 have been satisfied
in connection with the making of any Swing Line Loan. The proceeds of each
Swing Line Loan will be made available by the Swing Line Lender to the Company
by crediting the account of the Company designated to the Swing Line Lender
with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made
by the Swing Line Lender to the Company pursuant to this Section 4.1 shall
constitute the promise and obligation of the Company to pay to such Swing Line
Lender, at the office of the Swing Line Lender listed in Section 14.2, in
Dollars and in immediately available funds, the aggregate unpaid principal
amount of all Swing Line Loans made by such Swing Line Lender pursuant to
Section 4.1(a), which amounts shall be due and payable (whether at maturity or
by acceleration) as set forth in this Agreement and, in any event, on the
Multi-Currency Termination Date. The Company hereby agrees that the Swing Line
Lender is authorized to record (i) the date and amount of each Swing Line Loan
made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and
amount of each payment or prepayment of principal of and interest with respect
to each Swing Line Loan made by the Company to such Swing Line Lender, in the
books and records of such Swing Line Lender and in such manner as is reasonable
and customary for it and a certificate of an officer of such Swing Line Lender,
setting forth in reasonable detail the information so recorded, shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided, however, that the failure to make any such recording or any error in
such recording shall not in any way affect the Payment Obligations of the
Company hereunder.
(c) The Swing Line Lender, at any time in its sole and
absolute discretion, may, and at any time as there shall be $20,000,000 in
aggregate principal amount of Swing Line Loans outstanding shall, on behalf of
the Company (which hereby irrevocably directs the Swing Line Lender to act on
its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan
in an amount equal to such Multi-Currency Lender's Multi-Currency Commitment
Percentage of the amount of the Swing Line Loans (the "Refunded Swing Line
Loans") outstanding on the date such notice is given. Unless any of the events
described in paragraph (j) of Article XII shall have occurred (in which event
the procedures of paragraph (d) of this Section 4.1 shall apply) each
Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan
available to the Swing Line Lender for its own account at the office specified
for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City
time) in funds immediately available on the Business Day next succeeding the
date such notice is given. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Refunded Swing Line Loans.
(d) If, prior to the making of a Revolving Credit Loan
pursuant to paragraph (c) of Section 4.1, one of the events described in
paragraph (j) of Article XII shall have occurred, each Multi-Currency Lender
will, on the date such Revolving Credit Loan was to have been made, purchase an
undivided participating interest in the Refunded Swing Line Loan in an amount
equal to its Multi-Currency Commitment Percentage of such Refunded Swing Line
Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line
Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has
received from any Multi-Currency Lender such Multi-Currency Lender's
participating interest in a Refunded Swing Line Loan pursuant to clause (d)
above, the Swing Line Lender receives any payment on account thereof, the Swing
Line Lender will distribute to such Multi-Currency Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Multi-Currency
Lender's participating interest was outstanding and funded) in like funds as
received; provided, however, that in the event that such payment received by
the Swing Line Lender is required to be returned, such Multi-Currency Lender
will return to the Swing Line Lender any portion thereof previously distributed
by the Swing Line Lender to it in like funds as such payment is required to be
returned by the Swing Line Lender.
Section 4.2 Participations. Each Multi-Currency Lender's
obligation to purchase participating interests pursuant to paragraph (d) of
Section 4.1 shall be absolute and unconditional and shall not be affected by
any circumstance, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Multi-Currency Lender may have
against the Swing Line Lender, the Company or any other Person for any reason
whatsoever; (b) the occurrence or continuance of an Event of Default; (c) any
adverse change in the condition (financial or otherwise) of the Company or any
other Person; (d) any breach of this Agreement by the Company or any other
Multi-Currency Lender; or (e) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
Section 4.3 Use of Proceeds of Swing Line Loans. The proceeds
of the Swing Line Loans hereunder shall be used by the Company for any purpose
for which the proceeds of Revolving Credit Loans may be used.
Article V
AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY
Section 5.1 Letters of Credit Facility. (a) Subject to the
terms and conditions hereof, each Issuing Lender, in reliance upon the
representations and warranties contained herein and in the other Loan
Documents and upon the agreements of the other Multi-Currency Lenders set
forth in Section 5.3(a) and (b), agrees to issue under the Aggregate
Multi-Currency Commitment any letter of credit (each, a "Letter of Credit")
requested to be issued by it and so issued by it for the account of the
Company on any Business Day during the Commitment Period in such form as may
be approved from time to time by such Issuing Lender; provided, however, that
such Issuing Lender shall have no obligation to issue such Letter of Credit
if, after giving effect to such issuance, (i) the Equivalent in Dollars of the
L/C Obligations would exceed $50,000,000 and (ii) the sum of the Aggregate
Outstanding Multi-Currency Extensions of Credit would exceed the Maximum
Multi-Currency Availability. Each Letter of Credit shall (i) be denominated in
Dollars or such Denomination Currency acceptable to the Issuing Lender in its
sole discretion, (ii) be either (x) a standby letter of credit issued to
support obligations of the Company or any of its Subsidiaries, contingent or
otherwise, which are of a type for which Revolving Credit Loans (if the
obligations were then due and payable) would be available (a "Standby Letter
of Credit"), or (y) a documentary letter of credit in respect of the purchase
of goods or services by the Company or any of its Subsidiaries in the ordinary
course of business (a "Commercial Letter of Credit") and (iii) expire no later
than one year from the date of issue, in the case of Commercial Letters of
Credit, and five years from the date of issue, in the case of Standby Letters
of Credit; provided, further, that no Letter of Credit shall have an
expiration date that is later than the Term Loan Maturity Date; provided,
further, that the Undrawn L/C Obligations in respect of each Letter of Credit
which expires after the last day of the Commitment Period shall be Fully
Secured from and after such day.
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) No Issuing Lender shall at any time be obligated to issue
any Letter of Credit hereunder to the extent that such issuance would conflict
with, or cause such Issuing Lender or any L/C Participant to exceed any limits
imposed by, any applicable Requirement of Law.
(d) No Issuing Lender shall issue any Letter of Credit in the
period commencing on the first Business Day after it receives written notice
from the Multi-Currency Administrative Agent or any Multi-Currency Lender that
one or more of the conditions precedent contained in Section 9.2 or the first
proviso in Section 5.1(a) above are not on such date satisfied or duly waived
and ending when such conditions are satisfied or duly waived. No Issuing Lender
shall otherwise be required to determine that, or take notice whether, the
conditions precedent set forth in Section 9.2 have been satisfied in connection
with the issuance of any Letter of Credit.
Section 5.2 Procedure for Issuance of Letters of Credit. The
Company shall request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein
(with a copy to the Multi-Currency Administration Agent) an Application
therefor, completed to the satisfaction of such Issuing Lender, and such other
certificates, documents and other papers and information as such Issuing Lender
reasonably may request. Upon receipt of any Application, such Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall such Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by such
Issuing Lender and the Company. Such Issuing Lender shall (i) in the case of
each Standby Letter of Credit, notify each L/C Participant and the
Multi-Currency Administrative Agent promptly following the request for and
following the issuance of the Standby Letter of Credit and furnish a copy of
such Standby Letter of Credit to the Company and to the Multi-Currency
Administrative Agent promptly following the issuance thereof and (ii) in the
case of Commercial Letters of Credit, provide to each L/C Participant and the
Multi-Currency Administrative Agent, promptly following the end of each
calendar month during which it has issued Commercial Letters of Credit, a
monthly activity report of the Commercial Letters of Credit issued by it during
such month.
Section 5.3 L/C Participations. (a) The Issuing Lender with
respect to each Letter of Credit irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce such Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase, and hereby accepts and purchases, from such Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Multi-Currency
Commitment Percentage in such Issuing Lender's obligations and rights under
each Letter of Credit issued hereunder and the amount of each draft paid by
such Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with such Issuing Lender that, if a draft is paid under any
Letter of Credit issued by it for which such Issuing Lender is not reimbursed
in full by the Company in accordance with the terms of this Agreement, such L/C
Participant shall pay to such Issuing Lender upon demand at such Issuing
Lender's address for notices specified herein an amount equal to such L/C
Participant's Multi-Currency Commitment Percentage of the Equivalent in Dollars
of the amount of such draft, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to an Issuing Lender pursuant to Section 5.3(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit
issued by it is paid to such Issuing Lender within three Business Days after
the date such payment is due, such L/C Participant shall pay to such Issuing
Lender on demand an amount equal to the product of such amount, multiplied by
the daily average Federal Funds Effective Rate, as quoted by such Issuing
Lender, during the period from and including the date such payment is required
to the date on which such payment is immediately available to such Issuing
Lender, times a fraction the numerator of which is the number of days that
elapse during such period and the denominator of which is 360. If any such
amount required to be paid by any L/C Participant pursuant to Section 5.3(a) is
not in fact made available to such Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, such Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per
annum applicable to Revolving Credit Loans that are Alternate Base Rate Loans
hereunder. A certificate of the relevant Issuing Lender submitted to any L/C
Participant with respect to any amounts owing under this Section 5.3(b) shall
be conclusive in the absence of manifest error.
(c) Whenever, at any time after any Issuing Lender has made
payment under any Letter of Credit issued by it and has received from any L/C
Participant its pro rata share of such payment in accordance with Section
5.3(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Company or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender), or any payment of interest
on account thereof, such Issuing Lender promptly will distribute to such L/C
Participant its pro rata share thereof; provided, however, that in the event
that any such payment received by such Issuing Lender shall be required to be
returned by such Issuing Lender, such L/C Participant shall return to such
Issuing Lender the portion thereof previously distributed by such Issuing
Lender to it.
(d) Notwithstanding anything to the contrary contained in
this Section 5.3, the failure of any L/C Participant to make any payment due by
it under this Section 5.3 in a timely manner shall not relieve any other L/C
Participant of its obligation hereunder to make its own payment in a timely
manner, but no L/C Participant shall be responsible for the failure of any
other L/C Participant to make any payment pursuant to this Section 5.3 owing by
such other L/C Participant on any date.
Section 5.4 L/C Reimbursement Obligation of the Company. The
Company agrees to reimburse each Issuing Lender on each date on which such
Issuing Lender notifies the Company of the date and amount of a draft presented
under any Letter of Credit issued and paid by such Issuing Lender for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other
costs or expenses incurred by such Issuing Lender in connection with such
payment. Each such payment shall be made to the relevant Issuing Lender at its
address for notices specified herein (or, if such Issuing Lender has notified
the Company that such Letter of Credit was issued from a different lending
office of such Issuing Lender at the request of the Company, the lending office
from which such Letter of Credit was issued) in lawful money of the United
States or the applicable Denomination Currency, as the case may be, and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Company under this Section 5.4 from the date such
amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which would be payable on any
outstanding Revolving Credit Loans that are Alternate Base Rate Loans which
were then overdue.
Section 5.5 Obligations Absolute. The Company's obligations
under this Section 5 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Company may have or have had against the relevant Issuing
Lender, any beneficiary of Letter of Credit, any Lender or any other Person.
The Company also agrees with each Issuing Lender that such Issuing Lender shall
not be responsible for, and the Company's L/C Reimbursement Obligations under
Section 5.4 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Company and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Company against any beneficiary of such Letter of
Credit or any such transferee. No Issuing Lender shall be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit
issued by it, except for errors or omissions caused by such Issuing Lender's
gross negligence or willful misconduct. The Company agrees that any action
taken or omitted by any Issuing Lender under or in connection with any Letter
of Credit issued by such Issuing Lender or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct and in accordance
with the standards of care specified in the UCC, shall be binding on the
Company and shall not result in any liability of such Issuing Lender to the
Company.
Section 5.6 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Lender in respect
of such Letter of Credit shall promptly notify the Company of the date and
amount thereof. The responsibility of such Issuing Lender to the Company in
connection with any draft presented for payment under any Letter of Credit
issued by it shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are in conformity with such Letter of Credit.
Section 5.7 Application. To the extent that any provision of
any Application or other agreement required by the Issuing Lender related to
any Letter of Credit is inconsistent with the provisions of the other Loan
Documents, the provisions of the other Loan Documents shall apply.
Section 5.8 Cash Collateral for Letters of Credit. (a ) If the
Multi-Currency Administrative Agent or the Required Multi-Currency Lenders
shall so request when an Event of Default has occurred and is continuing, the
Company shall promptly deposit in a Cash Collateral Account under the direction
of the Multi-Currency Administrative Agent the amount equal to 105% of
Equivalent in Dollars of the sum of the aggregate amount of all Undrawn L/C
Obligations (the "Deposit Requirement"). The Company further agrees that, from
and after any such request for cash collateralization, so long as such Event of
Default is continuing, the Company will deposit from time to time into such
Cash Collateral Account any such additional amounts as shall be necessary to
cause the amount on deposit therein to be not less than the amount of the
Deposit Requirement then in effect.
(b) Following the occurrence and during the continuance of
any Event of Default, the Multi-Currency Administrative Agent may direct the
Collateral Agent to apply amounts held in the Cash Collateral Account
maintained pursuant to paragraph (a) above to the payment of the Payment
Obligations on account of the Letters of Credit in such order as the
Multi-Currency Administrative Agent shall elect, with any amounts remaining on
deposit therein after giving effect to such application on account of the
Letters of Credit to be applied pursuant to the Intercreditor Agreement.
Section 5.9 Existing Letters of Credit. Schedule 5.9
(Existing Letters of Credit) contains a schedule of certain letters of credit
issued prior to the Closing Date by Citibank, N.A. for the account of any
Borrower. On the Closing Date, (i) such letters of credit, to the extent
outstanding, shall be automatically and without further action by the parties
thereto converted to Letters of Credit issued pursuant to this Section 5.9 for
the account of such Borrower and subject to the provisions hereof, and for this
purpose the fees specified in Section 5.4 shall be payable (in substitution for
any fees set forth in the applicable letter of credit reimbursement agreements
or applications relating to such letters of credit) as if such letters of
credit had been issued on the Closing Date, (ii) each of the issuers of such
Letters of Credit shall be deemed to be an "Issuing Lender" hereunder solely
for the purpose of maintaining such letters of credit, (iii) the Equivalent in
Dollars of the face amount of such letters of credit shall be included in the
calculation of L/C Obligations and (iv) all liabilities of the Borrowers with
respect to such letters of credit shall constitute Payment Obligations. No
letter of credit converted in accordance with this Section 5.9 shall be
amended, extended or renewed without the prior written consent of the
Multi-Currency Administrative Agent.
Article VI
AMOUNT AND TERMS OF LOCAL LOAN SUB-FACILITY
Section 6.1 Local Loan Commitments. Subject to the terms and
conditions of this Agreement, each Local Fronting Lender severally agrees to
make loans (and, to the extent provided in Section 6.9, to create Acceptances)
under the Aggregate Multi-Currency Commitment in Dollars and in the
Denomination Currency set forth opposite its name on Schedule 1.1 to the
Company and to the Local Borrowing Subsidiary for such Denomination Currency
from time to time during the Commitment Period (individually, a "Local Loan";
collectively, the "Local Loans"); provided, however, that, after giving effect
to the making and the use of proceeds thereof, (i) the aggregate amount of the
Local Outstandings of such Local Fronting Lender shall not exceed the amount
equal to its Currency Sublimit then in effect and (ii) the sum of the Aggregate
Outstanding Multi-Currency Extensions of Credit shall not exceed the Maximum
Multi-Currency Availability. The Local Loans made by each Local Fronting Lender
generally shall be made by such Local Fronting Lender from a lending office
which is located within the jurisdiction of its respective Denomination
Currency; provided, however, that, in the event that the Company or the
relevant Local Borrowing Subsidiary so requests and the relevant Local Fronting
Lender (in its sole discretion) so agrees, any Local Loans to be made by such
Local Fronting Lender may be made from a lending office of such Local Fronting
Lender which is not located in the jurisdiction of its Denomination Currency.
During the Commitment Period, the Local Borrowers may use the Aggregate
Multi-Currency Commitment by borrowing Local Loans and Acceptances, repaying
the Local Loans and Acceptances in whole or in part and reborrowing, all in
accordance with the terms and conditions hereof.
Section 6.2 Obligations of Local Borrowers. (a) Each Local
Borrower hereby agrees that each Local Loan made by each Local Fronting Lender
to such Local Borrower pursuant hereto shall constitute the promise and
obligation of such Local Borrower to pay to such Local Fronting Lender, at the
office of such Local Fronting Lender listed on Schedule III hereto (or, if such
Local Fronting Lender has notified such Local Borrower that a Local Loan was
funded by a different lending office of such Local Fronting Lender pursuant to
Section 6.1, the lending office from which such Local Loan was funded), in
lawful money of the Denomination Currency (or, with respect to Local Loans
which are Dollar Loans, in Dollars) and in immediately available funds the
aggregate unpaid principal amount of all Local Loans made by such Local
Fronting Lender pursuant to Section 6.1, which amounts shall be due and payable
(whether at maturity or by acceleration) as set forth in this Agreement and, in
any event, on the Multi-Currency Termination Date. Notwithstanding anything to
the contrary contained in this Agreement or any other Loan Document, (i) no
Local Borrowing Subsidiary organized under the laws of any jurisdiction outside
the United States shall pay or be obligated under any Loan Document to pay any
amounts other than the Payment Obligations arising from the Local Loans of such
Local Borrowing Subsidiary, including any amounts owing by or on account of any
other Loan Party pursuant to this Agreement or any other Loan Document or in
respect of any other Secured Obligations and (ii) no assets of any Local
Borrowing Subsidiary organized outside of the United States shall be used to
pay or secure obligations of the Company, any other Loan Party or any other
Local Borrowing Subsidiary under any Loan Document or in respect of any other
Secured Obligations.
(b) Each Local Borrower hereby agrees that each Local
Fronting Lender is authorized to record (i) the date, amount and currency of
each Local Loan made by such Local Fronting Lender to such Local Borrower
pursuant to Section 6.1, (ii) the date of each interest rate conversion
pursuant to Section 7.7 which is applicable to such Local Loan and the
principal amount subject thereto, (iii) the date and amount of each payment or
prepayment of principal of and interest with respect to each Local Loan made by
such Local Borrower to such Local Fronting Lender and (iv) in the case of each
Local Loan which bears interest at a rate based upon the relevant Eurocurrency
Rate or Eurodollar Rate or (if it is customary in the relevant jurisdiction for
Local Rate Loans to be subject to Interest Periods) Local Rate, the interest
rate and Interest Period, in the books and records of such Local Fronting
Lender and in such manner as is reasonable and customary for it and a
certificate of an officer of such Local Fronting Lender, setting forth in
reasonable detail the information so recorded, shall constitute prima facie
evidence of the accuracy of the information so recorded; provided, however,
that the failure to make any such recording or any error in such recording
shall not in any way affect the Payment Obligations of the relevant Local
Borrower hereunder.
Section 6.3 Procedure for Borrowing Local Loans. Each Local
Borrower may request a borrowing of Local Loans under the Aggregate
Multi-Currency Commitment in Dollars or in the relevant Denomination Currency
from the applicable Local Fronting Lender during the Commitment Period on any
Working Day, if the Local Loans to be borrowed are Eurodollar Loans or
Eurocurrency Loans, or on any Business Day, if the Local Loans to be borrowed
are Alternate Base Rate Loans or Local Rate Loans, by submitting an irrevocable
Notice of Borrowing to the relevant Local Fronting Lender (with a copy to the
Multi-Currency Administrative Agent), specifying (i) the aggregate principal
amount of the relevant currency to be borrowed, (ii) the requested borrowing
date, (iii) whether the Local Loans to be borrowed are to be Eurodollar Loans
or Alternate Base Rate Loans (in the case of Dollar Loans) or Eurocurrency
Loans or Local Rate Loans (in the case of other Local Loans) or (in either
case) a combination thereof and, if a combination, the respective aggregate
amount of each type of borrowing and (iv) if the Local Loans to be borrowed are
Eurodollar Loans or Eurocurrency Loans or (if it is customary in the relevant
jurisdiction for Local Rate Loans to be subject to Interest Periods) Local Rate
Loans, the length of the Interest Period or Interest Periods applicable
thereto; provided, however, that any Local Loans to be made to the Company or a
Local Borrowing Subsidiary on the Closing Date shall be made as Local Rate
Loans. Any such notice of borrowing must be received by the relevant Local
Fronting Lender prior to 11:00 A.M., local time, three Working Days prior to
the requested borrowing date (or such shorter period prior thereto as such
Local Fronting Lender may agree) in the case of Eurodollar Loans or
Eurocurrency Loans, and on the requested borrowing date, in the case of
Alternate Base Rate or Local Rate Loans (with the presentation by any third
party of any check or draft drawn on the account of the relevant Local Borrower
or any other borrowing by way of overdraft being deemed to constitute a notice
of borrowing of Local Rate Loans in the amount of such check, draft or other
borrowing, to the extent that insufficient funds are then available for the
payment thereof in the account of such Local Borrower with the relevant Local
Fronting Lender); provided, further, that the Multi-Currency Administrative
Agent may, at any time and from time to time in its sole discretion, suspend
the right of the Local Borrowers with respect to any one or more Denomination
Currencies to borrow Alternate Base Rate Loans or Local Rate Loans on the basis
of same-day notice by providing written notice of such suspension to the
Company and the affected Local Borrowing Subsidiaries (with a copy to the
relevant Local Fronting Lender) not less than two Business Days prior to the
effectiveness thereof (or, during such time as any Default or Event of Default
has occurred and is continuing, on the date of such effectiveness), in which
event any such notice of borrowing (other than any notice of borrowing deemed
to be made on account of a check, draft or other customary means of borrowing
by way of overdraft drawn by such Local Borrower prior to the date of such
notice of suspension) of Alternate Base Rate Loans or Local Rate Loans must
(until such notice of suspension has been revoked by the Multi-Currency
Administrative Agent) be received by the Local Fronting Lender prior to 11:00
A.M., local time, one Business Day prior to the requested borrowing date. In
the event that the relevant Local Fronting Lender determines on the requested
borrowing date that the making of such requested Local Loan will not cause the
Local Outstandings of such Local Fronting Lender to exceed the amount equal to
its Currency Sublimit then in effect (in each case, as has been notified to
such Local Fronting Lender by the Multi-Currency Administrative Agent pursuant
to Section 6.8(b)), such Local Fronting Lender will make the requested Local
Loan available to the relevant Local Borrower, at the principal lending office
of such Local Fronting Lender in the relevant jurisdiction, by 1:00 P.M., local
time, on the requested borrowing date, in funds immediately available to such
Local Borrower. Promptly following the making of each such Local Loan, such
Local Fronting Lender shall provide notice to the Multi-Currency Administrative
Agent of the amount thereof. The minimum amount of each borrowing of Local
Loans shall, subject to Section 7.7(g), be in an aggregate principal amount
(not to exceed the relevant Currency Sublimit) to be mutually agreed upon by
the relevant Local Fronting Lender and the relevant Local Borrower.
Notwithstanding anything to the contrary contained in this Section 6.3, no
Local Fronting Lender shall be obligated hereunder to advance any Local Loan by
way of an overdraft, but rather shall provide overdrafts only if it elects (in
its sole discretion) to do so. Notwithstanding the foregoing, any Local Loans
(as defined in the Existing Agreement) which are outstanding on the Closing
Date from a Local Fronting Lender hereunder listed on Schedule 6.3 shall be
deemed to be refinanced with "Local Loans" (as defined herein) hereunder.
Section 6.4 Currency Conversion and Contingent Funding
Agreement. (a) Each Multi-Currency Lender hereby unconditionally and irrevocably
agrees to purchase (in Dollars) an undivided participating interest in its
ratable share of such Local Loans and Acceptances made by such Local Fronting
Lenders as the Multi-Currency Administrative Agent may at any time request;
provided, however, that:
(i) the Multi-Currency Administrative Agent hereby agrees
that, it will not request any such purchase of participating interests
unless a Liquidity Event Period has commenced and is continuing or a
Default or an Event of Default has occurred and is continuing;
(ii) the Multi-Currency Administrative Agent hereby agrees
that it promptly will request that the Multi-Currency Lenders purchase
such participating interest in all Local Loans and Acceptances made by
any Local Fronting Lender which provides to the Multi-Currency
Administrative Agent a written certification that an Event of Default
described in Section 12(a) is continuing with respect to the Local
Loans or Acceptances made by such Local Fronting Lender and requesting
that such request be made by the Multi-Currency Administrative Agent;
and
(iii) in the event that any of the events specified in
clauses (i), (ii) or (iii) of Section 12(j) shall have occurred with
respect to any Local Borrower, each Multi-Currency Lender shall be
deemed to have purchased, automatically and without request, such
participating interest in the Local Loans and Acceptances made to such
Local Borrower.
Any such request by the Multi-Currency Administrative Agent shall be made in
writing to each Multi-Currency Lender and shall specify the amount of Dollars
(based upon the actual exchange rate at which the Multi-Currency Administrative
Agent anticipates being able to obtain the relevant Denomination Currency, with
any excess payment being refunded to the Multi-Currency Lenders and any
deficiency remaining payable by the Multi-Currency Lenders) required from such
Multi-Currency Lender in order to effect the purchase by such Multi-Currency
Lender of a participating interest in the amount equal to its Multi-Currency
Commitment Percentage multiplied by the aggregate then outstanding principal
amount (in the Denomination Currency) of the relevant Local Loans and
Acceptances (together with accrued interest thereon and other amounts owing in
connection therewith) in such Denomination Currency. Promptly upon receipt of
such request, each Multi-Currency Lender shall deliver to the Multi-Currency
Administrative Agent (in immediately available funds) the amount so specified
by the Multi-Currency Administrative Agent. The Multi-Currency Administrative
Agent shall convert such amounts into the relevant Denomination Currency and
shall promptly deliver the proceeds of such conversion to the relevant Local
Fronting Lender in immediately available funds. From and after such purchase,
(i) the outstanding Local Loans and Acceptances in which the Multi-Currency
Lenders have purchased such participations shall be deemed to have been
converted into Revolving Credit Loans that are Alternate Base Rate Loans
denominated in Dollars (with such conversion constituting, for purposes of
Section 7.11, a prepayment of such Local Loans and Acceptances before the last
day of the Interest Period with respect thereto), (ii) any further Local Loans
to be made to such Borrower shall be made in Dollars, with each Multi-Currency
Lender purchasing a participating interest therein in the manner described in
the foregoing provisions of this Section 6.4(a) immediately upon the making
thereof in the amount equal to such Multi-Currency Lender's Multi-Currency
Commitment Percentage thereof (with the Multi-Currency Administrative Agent
hereby agreeing to provide prompt notice to each such Multi-Currency Lender of
its receipt from the relevant Local Fronting Lender of a notice of borrowing
and of making the relevant Local Loan), (iii) no further Acceptances shall be
created for the account of such Borrower, (iv) all amounts from time to time
accruing, and all amounts from time to time payable, on account of such Local
Loans and Acceptances (including, without limitation, any interest and other
amounts which were accrued but unpaid on the date of such purchase) shall be
payable in Dollars as if such Local Loan or Acceptance, as the case may be, had
originally been made in Dollars and shall (other than with respect to the
portion of the Applicable Margin which, pursuant to Section 7.5, is expressly
stated to be paid for the account of the Local Fronting Lender) be distributed
by the relevant Local Fronting Lender to the Multi-Currency Administrative
Agent, for the accounts of the Multi-Currency Lenders, on account of such
participating interests. Notwithstanding anything to the contrary contained in
this Section 6.4, the failure of any Multi-Currency Lender to purchase its
participating interest in any Local Loan or Acceptance shall not relieve any
other Multi-Currency Lender of its obligation hereunder to purchase its
participating interest in a timely manner, but no Multi-Currency Lender shall
be responsible for the failure of any other Multi-Currency Lender to purchase
the participating interest to be purchased by such other Multi-Currency Lender
on any date.
(b) If any amount required to be paid by any Multi-Currency
Lender pursuant to Section 6.4(a) is paid to the Multi-Currency Administrative
Agent within three Business Days following the date upon which such
Multi-Currency Lender receives notice from the Multi-Currency Administrative
Agent that the Local Loan or Acceptance in which such Multi-Currency Lender has
purchased a participating interest has been made or created (as the case may
be), such Multi-Currency Lender shall pay to the Multi-Currency Administrative
Agent on demand an amount equal to the product of such amount, times the daily
average Federal Funds Effective Rate, as quoted by the Multi-Currency
Administrative Agent, during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Multi-Currency Administrative Agent, times a fraction the numerator of
which is the number of days that elapse during such period and the denominator
of which is 360. If any such amount required to be paid by any Multi-Currency
Lender pursuant to Section 6.4(a) is not in fact made available to the
Multi-Currency Administrative Agent within three Business Days following the
date upon which such Multi-Currency Lender receives notice from the
Multi-Currency Administrative Agent that the Local Loan or Acceptance in which
such Multi-Currency Lender has purchased a participating interest has been made
or created (as the case may be), the Multi-Currency Administrative Agent shall
be entitled to recover from such Multi-Currency Lender, on demand, such amount
with interest thereon calculated from such due date at the rate per annum
applicable to Revolving Credit Loans that are Alternate Base Rate Loans
hereunder. A certificate of the Multi-Currency Administrative Agent submitted
to any Multi-Currency Lender with respect to any amounts owing under this
Section 6.4(b) shall be conclusive in the absence of manifest error. Amounts
payable by any Multi-Currency Lender pursuant to this Section 6.4(b) shall be
paid to the Multi-Currency Administrative Agent, for the account of the
relevant Local Fronting Lender; provided, however, that, if the Multi-Currency
Administrative Agent (in its sole discretion) has elected to fund on behalf of
such Multi-Currency Lender the amounts owing to such Local Fronting Lender,
then the amounts shall be paid to the Multi-Currency Administrative Agent, for
its own account.
(c) Whenever, at any time after the relevant Local Fronting
Lender has received from any Multi-Currency Lender such Multi-Currency Lender's
participating interest in a Local Loan or Acceptance pursuant to clause(a), the
Local Fronting Lender receives any payment on account thereof, such Local
Fronting Lender will distribute to the Multi-Currency Administrative Agent, for
the account of such Multi-Currency Lender, such Multi-Currency Lender's
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Multi-Currency Lender's participating interest was outstanding) in like funds
as received; provided, however, that in the event that such payment received by
such Local Fronting Lender is required to be returned, such Multi-Currency
Lender will return to such Local Fronting Lender any portion thereof previously
distributed by such Local Fronting Lender to such Multi-Currency Lender in like
funds as such payment is required to be returned by such Local Fronting Lender.
(d) Each Multi-Currency Lender's obligation to purchase
participating interests pursuant to clause (a) above shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (a) any set-off, counterclaim, recoupment, defense or other right
which such Multi-Currency Lender may have against the relevant Local Fronting
Lender, the relevant Local Borrower or any other Person for any reason
whatsoever; (b) the occurrence or continuance of a Default or an Event of
Default; (c) any adverse change in the condition (financial or otherwise) of
the relevant Local Borrower or any other Person; (d) any breach of this
Agreement by the relevant Local Borrower, any other Local Borrower or any other
Lender; or (e) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing; provided, however, that no
Multi-Currency Lender shall be obligated to purchase participating interests in
any Local Loans made by a Local Fronting Lender to the extent that such Local
Loans (at the time when made) caused the amount of Local Loans outstanding from
such Local Fronting Lender to be in excess of the Currency Sublimit then in
effect with respect to such Local Fronting Lender.
Section 6.5 Designation of Additional Denomination
Currencies. (a) The Company may from time to time request that any one or more
additional freely available currencies which are freely transferable and freely
convertible into Dollars be designated as "Denomination Currencies" hereunder
by providing written notice to the Multi-Currency Administrative Agent
specifying (i) the relevant Local Borrowing Subsidiary for such currency (which
need not be an existing Local Borrowing Subsidiary), (ii) the requested amount
of the Currency Sublimit for such Denomination Currency and (iii) specifying
the Local Fronting Lender with respect thereto and the Maximum Sublimit to be
inserted in Schedule III for such Local Fronting Lender; provided, however,
that in no event shall the sum of all Currency Sublimits (after giving effect
to the requested designation of an additional Denomination Currency and any
concurrent re-allocation of the Currency Sublimits pursuant to Section 6.6)
exceed the Aggregate Currency Sublimit then in effect. The Multi-Currency
Administrative Agent shall promptly forward to each Multi-Currency Lender a
copy of any such notice. Within ten Business Days following the receipt of such
notice, each Multi-Currency Lender shall notify the Multi-Currency
Administrative Agent in writing whether such designation is acceptable to such
Multi-Currency Lender (in its sole discretion) and the Multi-Currency
Administrative Agent promptly shall notify the Company thereof.
(b) In the event that such designation is acceptable to the
Required Multi-Currency Lenders, the Company shall cause the requested Local
Borrowing Subsidiary to deliver to the Multi-Currency Administrative Agent a
Local Borrowing Subsidiary Joinder Agreement, such other documents,
instruments, agreements and legal opinions as the Multi-Currency Administrative
Agent reasonably may request (including, in any event, an opinion of local
counsel in the relevant jurisdiction to the effect that no Multi-Currency
Lender, other than the relevant Local Fronting Lender, shall be deemed to be
doing business in the relevant jurisdiction, or otherwise shall be subject to
regulation or taxation therein, solely as a result of the agreements set forth
herein; with such legal opinions to be in form and substance reasonably
acceptable to the Required Multi-Currency Lenders) and (iii) a Local Fronting
Lender Joinder Agreement from the Local Fronting Lender for such Denomination
Currency.
(c) From and after the date upon which the Multi-Currency
Administrative Agent has received the documents (all of which shall be in form
and substance reasonably satisfactory to the Multi-Currency Administrative
Agent) described in Section 6.5(b), Schedule III hereto shall be deemed to be
amended to reflect (i) the designation of such currency as a Denomination
Currency, (ii) the aggregate amount of the Currency Sublimit and Maximum
Sublimit with respect thereto, (iii) the name and applicable local lending
office of the relevant Local Fronting Lender with respect thereto and (iv) the
name of the relevant Local Borrowing Subsidiary.
(d) With respect to any Denomination Currency set forth on
Schedule III, the Company may designate an additional or different Local
Borrowing Subsidiary with respect thereto with the approval of the Required
Multi-Currency Lenders and the relevant Local Fronting Lender, which
designation shall take effect from and after the date upon which the
Multi-Currency Administrative Agent has received the documents described in
Section 6.5(b)(i) and (ii) with respect to such designated Local Borrowing
Subsidiary and from and after such date Schedule III shall be deemed to be
amended to reflect the name of the Local Borrowing Subsidiary so designated.
(e) The Multi-Currency Administrative Agent shall give prompt
notice to the Multi-Currency Lenders of the effectiveness of any such
designation and shall deliver to each Multi-Currency Lender and the Company a
revised version of Schedule III which reflects any such amendment.
Section 6.6 Re-Allocation of Currency Sublimits. (a) The
Company (on its own behalf and as agent of the Local Borrowing Subsidiaries)
may from time to time (but, unless the Multi-Currency Administrative Agent
shall otherwise agree, not more frequently than two times per calendar month)
request that the amount of any one or more Currency Sublimits be increased
and/or the amount of any one or more Currency Sublimits be decreased by
delivering a written request for such re-allocation to the Multi-Currency
Administrative Agent. Each such request shall specify the amount (in Dollars)
of the increase or decrease, as the case may be, applicable to each affected
Currency Sublimit. The Multi-Currency Administrative Agent shall deliver to
each affected Local Fronting Lender a copy of such request promptly following
receipt thereof.
(b) Unless the revised Currency Sublimit of any Local
Fronting Lender will, after giving effect to the requested re-allocation of
Currency Sublimits, be in excess of the Maximum Sublimit then in effect for
such Local Fronting Lender, then the Currency Sublimits shall be deemed to be
so re-allocated and Schedule III shall be deemed to be amended to reflect such
reallocation; provided, however, that (i) no Local Fronting Lender shall be
required to lend more than its Currency Sublimit (as in effect prior to the
effectiveness of such re-allocation) until such Local Fronting Lender has
received notice from the Multi-Currency Administrative Agent of the
effectiveness of such re-allocation (which notice the Multi-Currency
Administrative Agent agrees to deliver promptly upon such effectiveness) and
(ii) after giving effect to such re-allocation, the Aggregate Outstanding
Multi-Currency Extensions of Credit will not exceed the Maximum Multi-Currency
Availability then in effect. Promptly following the effectiveness of such
re-allocation, the Multi-Currency Administrative Agent shall deliver to each
Multi-Currency Lender and the Company a revised Schedule III which reflects
such amendment.
(c) In the event that the revised Currency Sublimit of any
Local Fronting Lender will (after giving effect to the requested re-allocation
of Currency Sublimits) be in excess of the Maximum Sublimit specified for such
Local Fronting Lender on Schedule III, then such Local Fronting Lender and the
Multi-Currency Administrative Agent shall have ten Business Days to determine
whether (in their sole discretion) to approve such increase. In the event that
such Local Fronting Lender and the Multi-Currency Administrative Agent approve
such increase (which approval shall be delivered in writing to the Company and,
in the case of the approval of such Local Fronting Lender, to the
Multi-Currency Administrative Agent) then the Currency Sublimit and the Maximum
Sublimit of such Local Fronting Lender shall be re-allocated to such higher
amounts requested for such Local Fronting Lender in the request delivered to
the Multi-Currency Administrative Agent pursuant to Section 6.6(a). In the
event that such Local Fronting Lender and the Multi-Currency Administrative
Agent do not approve such increase in accordance with the foregoing terms of
this Section 6.6(c), then the Currency Sublimit of such Local Fronting Lender
shall be increased only to its existing Maximum Sublimit on the date upon which
either such Local Fronting Lender or the Multi-Currency Administrative Agent
notifies the Company that such increase has not been approved (or, if no such
notice is given, at the end of such ten day approval period). Promptly
following the effectiveness of any such reallocation, the Multi-Currency
Administrative Agent shall deliver to each Multi-Currency Lender and the
Company a revised Schedule III which reflects such amendment. The Company or
the relevant Local Borrowing Subsidiary shall pay any stamp, recording or other
similar tax payable under the laws of the local jurisdiction which is required
as a result of any such increase in the Maximum Sublimit of its relevant Local
Fronting Lender.
(d) In connection with any re-allocation made in accordance
with this Section 6.6, the Company may designate that the Currency Sublimit
applicable to any Local Fronting Lender is to be reduced to zero and that the
relevant Local Borrowing Subsidiary is to cease to be a "Local Borrowing
Subsidiary" hereunder. From and after any such designation and repayment of all
relevant Local Loans or Acceptances then outstanding, such Local Borrowing
Subsidiary shall cease to be a Borrower hereunder, such Local Fronting Lender
shall cease to be the "Local Fronting Lender" for the relevant Denomination
Currency and (except to the extent that the provisions of Section 6.5
subsequently are complied with) no further Local Loans or Acceptances shall be
made to any Borrower in such Denomination Currency.
(e) Notwithstanding anything to the contrary contained
herein, no such reallocation shall be permitted if, after giving effect
thereto, the Aggregate Outstanding Multi-Currency Extensions of Credit will
exceed the Maximum Multi-Currency Availability then in effect.
Section 6.7 Resignation or Removal of a Local Fronting
Lender. (a) In the event that a Local Fronting Lender shall so elect, such Local
Fronting Lender shall resign as Local Fronting Lender by giving written notice
of its resignation to the Company, the relevant Local Borrowing Subsidiary and
the Multi-Currency Administrative Agent, with such resignation becoming
effective on the date which is the earlier of (i) the date upon which a Local
Fronting Lender reasonably acceptable to the Multi-Currency Administrative
Agent and the Company (on its own behalf and as agent for the relevant Local
Borrowing Subsidiary) is designated as a substitute Local Fronting Lender in
accordance with the provisions of Section 6.7(c) and (ii) such other date upon
which such Local Fronting Lender, the Company and the relevant Local Borrowing
Subsidiary otherwise agree; provided, however, that such effective date shall
in no event be later than the date which is 30 days following the date upon
which such written notice is delivered to the Company. Any Local Loans and
Acceptances made by such Local Fronting Lender which are outstanding on such
termination date shall be due and payable on such termination date.
(b) The Company (on its own behalf and as agent for the
relevant Local Borrowing Subsidiary) at any time may, using its commercially
reasonable judgment, request that any Local Fronting Lender cease to be
designated as such by giving written notice of such request to the
Multi-Currency Administrative Agent (which notice the Multi-Currency
Administrative Agent promptly shall deliver to such Local Fronting Lender and
to each Multi-Currency Lender). Immediately upon receipt of such request, such
Local Fronting Lender shall cease to make any additional Local Loans and cease
to create any additional Acceptances, and all Local Loans and Acceptances then
maintained by such Local Fronting Lender shall be due and payable on the date
requested by the Company (which date shall be not earlier than (i) the earlier
of (A) 30 days following delivery of such notice, in the case of Alternate Base
Rate Loans, Local Rate Loans and Acceptances and (B) the last day of the
Interest Period then in effect with respect thereto, in the case of
Eurocurrency Loans or Eurodollar Loans, as the case may be, and (ii) such other
date upon which such Local Fronting Lender, the Company and the relevant Local
Borrowing Subsidiary otherwise agree). From and after the date upon which all
such Local Loans and Acceptances are repaid (together with accrued interest and
other amounts owing to such Local Fronting Lender on account thereof), such
Local Fronting Lender shall cease to be a "Local Fronting Lender" with respect
to such Denomination Currency.
(c) In the event that the Local Fronting Lender with respect
to any Denomination Currency shall cease to serve as such pursuant to Section
6.7(a) or (b), the Company (on its own behalf and as agent of the relevant
Local Borrowing Subsidiary) may designate another Local Fronting Lender
reasonably acceptable to the Multi-Currency Administrative Agent to serve as
"Local Fronting Lender" with respect to such Denomination Currency; provided,
however, that no Multi-Currency Lender shall be so designated without its
agreement (in its sole discretion) to serve as the "Local Fronting Lender" with
respect to such Denomination Currency hereunder. Upon any such designation and
the receipt by the Multi-Currency Administrative Agent of a Local Fronting
Lender Joinder Agreement, duly executed and delivered by such designated Local
Fronting Lender, such Multi-Currency Lender shall be deemed to be the "Local
Fronting Lender" with respect to such Denomination Currency for all purposes
under this Agreement and the other Loan Documents.
(d) During any period when no substitute Local Fronting
Lender has been duly appointed in accordance with the terms of Section 6.7(c),
the right of the Borrowers to borrow in such Denomination Currency shall be
suspended.
Section 6.8 Reports. (a) Each Local Fronting Lender shall
deliver to the Multi-Currency Administrative Agent on the first Business Day of
each calendar week and on the first Business Day of each calendar month (and at
any time and from time to time when the Multi-Currency Administrative Agent may
so request) a statement, substantially in the form of Exhibit P-1, showing (i)
the aggregate principal amount of Local Loans in the relevant Denomination
Currency outstanding from such Local Fronting Lender as of the close of
business on each Business Day during the prior week (or portion thereof), (ii)
the aggregate principal amount of Local Loans in Dollars outstanding from such
Local Fronting Lender as of the close of business on each Business Day during
the prior week (or portion thereof), (iii) the aggregate undiscounted face
amount of Acceptances outstanding from such Local Fronting Lender as of the
close of business on each Business Day during the prior week (or portion
thereof) and (iv) such other matters as are contained therein. The
Multi-Currency Administrative Agent hereby agrees to deliver a copy of each
such statement to the Company promptly following its receipt thereof and of any
such statement to any Multi-Currency Lender promptly upon its request therefor.
(b) Promptly following any change in the Currency Sublimit in
effect for any Local Fronting Lender, the Multi-Currency Administrative Agent
shall deliver to such Local Fronting Lender a statement indicating the new
Currency Sublimit in effect for such Local Fronting Lender.
Section 6.9 Bankers' Acceptances. (a) Notwithstanding
anything to the contrary contained herein, any Local Fronting Lender may agree
(in its sole discretion from time to time) to create bankers' acceptances
under its Currency Sublimit by way of the acceptance and discount of Drafts
(the "Acceptances") pursuant to this Section 6.9; provided, however, that no
Local Fronting Lender shall have any obligation to create and/or discount
Acceptances, regardless of any prior practice of doing so for the account of
such Local Borrowing Subsidiary. Any Acceptances created pursuant to this
Section 6.9 shall be denominated in the Denomination Currency for the relevant
Local Fronting Lender (and not in Dollars), and shall be for such tenor and in
such amount as may be mutually agreed upon by the relevant Local Fronting
Lender and Local Borrowing Subsidiary; provided, however, that in no event
shall any Acceptance mature after the date which is 30 days prior to the
Multi-Currency Termination Date.
(b) Unless the relevant Local Borrowing Subsidiary and Local
Fronting Lender otherwise agree, the relevant Local Borrowing Subsidiary shall
give to the relevant Local Fronting Lender not less than two Business Days'
prior written notice of its intent to borrow by way of Acceptances from any
Local Fronting Lender which has agreed to accept and discount Drafts for the
account of such Local Borrowing Subsidiary, which notice shall be accompanied
by (i) a Draft which has been completed, executed and delivered by a duly
authorized officer of such Local Borrowing Subsidiary and (ii) such other
documents, instruments and certificates as such Local Fronting Lender
reasonably may request; provided, however, that, after giving effect to the
creation of such Acceptance, the Local Outstandings owing to such Local
Fronting Lender shall not exceed the amount equal to its Currency Sublimit then
in effect. On the requested borrowing date, the relevant Local Fronting Lender
will accept such Draft and discount such accepted Draft in accordance with the
provisions of Section 6.9(c).
(c) Any Local Fronting Lender may, in its sole discretion,
elect to discount Drafts of the relevant Local Borrowing Subsidiary on the date
upon which such Local Fronting Lender accepts such Drafts by discounting such
Draft at the rate per annum equal to the Local Rate (which may be a different
rate than the Local Rate then payable on account of Local Loans in such
Denomination Currency) then in effect plus the Applicable Margin then in effect
for Local Rate Loans; provided, however, that, unless the relevant Local
Fronting Lender and Local Borrowing Subsidiary otherwise agree, such discount
shall be calculated by, first, discounting the aggregate face amount of such
Draft at the rate per annum equal to the Local Rate then in effect and, second,
discounting the result thereof at the rate per annum equal to the Applicable
Margin then in effect for Local Rate Loans. Promptly following such discounting
(and, in any event, on the date thereof), such Local Fronting Lender shall make
available to such Local Borrowing Subsidiary the amount equal to the discounted
face amount of such Draft in the manner in which such Local Fronting Lender
makes available Local Loans pursuant to Section 6.3.
(d) Each Local Borrowing Subsidiary hereby unconditionally
agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted
face amount of each Draft accepted by such Local Fronting Lender hereunder on
the maturity date thereof (or on such earlier date upon which the obligations
of such Local Borrowing Subsidiary under this Agreement shall become or shall
have been declared due and payable pursuant to the terms and conditions of this
Agreement). Interest shall accrue on any amount owing pursuant to this Section
6.9(d) which is not paid when due (whether by scheduled maturity, mandatory
prepayment, acceleration or otherwise) from the date such amount becomes due
until paid in full at a fluctuating rate per annum equal to the rate which
would then be payable on any overdue Local Rate Loans and shall be payable by
such Local Borrowing Subsidiary upon demand by such Local Fronting Lender.
(e) Each Multi-Currency Lender hereby unconditionally and
irrevocably agrees to purchase undivided participating interests in the
Acceptances created by each Local Fronting Lender in accordance with the
provisions of Section 6.4.
(f) Notwithstanding anything to the contrary contained
herein, the indefeasible prepayment by the relevant Local Borrowing Subsidiary
to the relevant Local Fronting Lender of all or a portion of any outstanding
Acceptance shall be deemed to constitute a prepayment of such portion of such
Acceptance for all purposes hereunder, regardless of whether the relevant Local
Fronting Lender has distributed such amount to the holder of the underlying
Draft.
Section 6.10 Use of Proceeds of Local Loans and Acceptances.
The proceeds of the Local Loans and Acceptances hereunder shall be used by the
relevant Borrower for general corporate purposes of such Borrower and its
Subsidiaries not prohibited hereunder.
Article VII
PROVISIONS RELATING TO CERTAIN EXTENSIONS OF CREDIT; FEES AND PAYMENT
Section 7.1 Voluntary Termination or Reduction of Aggregate
Multi-Currency Commitment. The Company (on its own behalf and as agent for the
Local Borrowing Subsidiaries) shall have the right at any time, upon not less
than five Business Days' notice to the Multi-Currency Administrative Agent, to
terminate or, from time to time, permanently reduce the Aggregate
Multi-Currency Commitment, subject to the provisions of Section 7.7(g) and
Section 7.11, with any such voluntary reduction (i) being in an amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and (ii)
reducing permanently the amount of the Aggregate Multi-Currency Commitment then
in effect.
Section 7.2 Optional Prepayments. (a) The Company may,
subject to Section 7.11, at any time and from time to time, prepay any Term
Loans, Revolving Credit Loans and Swing Line Loans borrowed by it which are
then outstanding, in whole or in part, without premium or penalty (subject to
the second proviso hereto), upon at least three Working Days' irrevocable
notice to the applicable Administrative Agent, in the case of Eurodollar Loans
or Eurocurrency Loans, one Business Day's irrevocable notice to the applicable
Administrative Agent, in the case of Alternate Base Rate Loans (other than
Swing Line Loans) and irrevocable notice to the Multi-Currency Administrative
Agent (which notice must be received by the Multi-Currency Administrative Agent
prior to 1:00 P.M., New York City time) on the date of prepayment, in the case
of Swing Line Loans, specifying (i) the date and amount of such prepayment,
(ii) the principal amount to be prepaid, (iii) whether the prepayment is of
Term Loans, Revolving Credit Loans or Swing Line Loans or a combination
thereof, and, if of a combination thereof, the amount of prepayment allocable
to each and (iv) whether the prepayment is of Eurodollar Loans, Eurocurrency
Loans or Alternate Base Rate Loans or a combination thereof, and, if of a
combination thereof, the amount of prepayment allocable to each (and, with
respect to such Eurodollar Loans and Eurocurrency Loans, each Tranche thereof),
provided, however, that the Company shall not prepay any Swing Line Loans on
any day on which the Company has requested a borrowing thereof, and provided,
further, that (A) any Term Loans prepaid pursuant to this Section 7.2
(including under clause (B) below) on or before the third anniversary of the
Closing Date shall be accompanied by a premium in an amount equal to the
Prepayment Fee, and (B) any prepayment of the Term Loans in whole upon a
refinancing thereof (whether with proceeds of equity or indebtedness) shall be
deemed to be an optional prepayment. Upon receipt of any such notice, the
applicable Administrative Agent will promptly notify each affected Lender
thereof. If any such notice is given, the Company will make the prepayment
specified therein, and such prepayment shall be due and payable on the date
specified therein. Each partial prepayment pursuant to this Section 7.2 shall
be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof (or, in the case of Swing Line Loans, $500,000 or a whole multiple of
$100,000 in excess thereof) and shall comply with Section 7.7(g). Any such
optional prepayments of the Term Loans shall be applied, first, in the direct
order of maturity to the remaining installments thereof maturing in the next
twelve (12) months, and second, ratably to the remaining installments thereof
maturing thereafter.
(b) The Company and each Local Borrowing Subsidiary may,
subject to Section 7.11, at any time and from time to time, prepay any Local
Loans borrowed by it or Acceptances created for its account which are then
outstanding, in whole or in part, without premium or penalty, upon at least
three Working Days' irrevocable notice to the relevant Local Fronting Lender
(with a copy to the Multi-Currency Administrative Agent), in the case of
Eurodollar Loans or Eurocurrency Loans, and two Business Days' irrevocable
notice to such Local Fronting Lender, in the case of Alternate Base Rate Loans,
Local Rate Loans or Acceptances, specifying (i) the date and amount of such
prepayment, (ii) whether the amounts prepaid are on account of Acceptances or
Local Loans (and, if on account of Local Loans, whether such Local Loans to be
prepaid are denominated in Dollars or in a Denomination Currency, as the case
may be) or a combination thereof, and, if a combination thereof, the amount of
prepayment allocable to each and (iii) whether the prepayment is of Eurodollar
Loans or Alternate Base Rate Loans (in the case of any prepayment of any such
Loans denominated in Dollars) or Eurocurrency Loans or Local Rate Loans
(otherwise) or (in either case) a combination thereof, and, if of a combination
thereof, the amount of prepayment allocable to each (and, with respect to such
Eurodollar Loans, Eurocurrency Loans or, to the extent applicable, Local Rate
Loans, each Tranche thereof); provided, however, that Local Loans borrowed by
way of overdrafts may be repaid on same-day notice without regard to any
minimum amount of repayment required by this Section 7.2(b), with any deposit
of funds (whether by clearance of a check, receipt of a wire transfer or
otherwise) in the account of the relevant Local Borrowing Subsidiary maintained
by the Local Fronting Lender with respect to such overdrafts being deemed to
constitute such notice of prepayment. If any such notice is given, the relevant
Local Borrower will make the prepayment specified therein, and such prepayment
shall be due and payable on the date specified therein. Each partial prepayment
of the Local Loans pursuant to this Section 7.2 shall be in such minimum amount
as may be mutually agreed upon by the relevant Local Fronting Lender and the
relevant Borrower and shall comply with Section 7.7(g); provided, however, that
in no event shall such minimum amount be greater than $500,000 or the
Equivalent thereof in the relevant Denomination Currency.
Section 7.3 Mandatory Prepayments and Commitment Reductions.
(a) Unless the Required Multi-Currency Lenders otherwise agree, if at any time
and from time to time the Aggregate Outstanding Multi-Currency Extensions of
Credit exceed the Maximum Multi-Currency Availability at such time, the Company
and/or the Local Borrowing Subsidiaries shall immediately repay the Revolving
Credit Loans, the Swing Line Loans, the Local Loans, the Acceptances and/or the
L/C Reimbursement Obligations (and, to the extent necessary, cause the then
outstanding Undrawn L/C Obligations to be Fully Secured) in accordance with the
provisions of Section 7.4 by the amount equal to such excess.
(b) Unless the Required Multi-Currency Lenders otherwise
agree, if at any time and from time to time the sum (based on the Borrowing
Base Certificate most recently delivered to the Multi-Currency Administrative
Agent pursuant to Section 10.17 or at the request of the Multi-Currency
Administrative Agent) of (i) the aggregate outstanding principal amount of
Local Loans denominated in Dollars which are owing by the Local Borrowers to a
Local Fronting Lender, (ii) the Equivalent in Dollars of 105% of the aggregate
outstanding principal amount of Local Loans denominated in the relevant
Denomination Currency which are owing by the Local Borrowers to such Local
Fronting Lender and (iii) the Equivalent in Dollars of 105% of the aggregate
undiscounted face amount of Acceptances in the relevant Denomination Currency
which are owing by the relevant Local Borrowing Subsidiary to such Local
Fronting Lender, exceeds the Currency Sublimit for such Local Fronting Lender,
such Local Borrowers shall, within three Business Days, repay the Local Loans
and Acceptances owing by them to such Local Fronting Lender by the amount equal
to such excess.
(c) Unless the Required Term Loan Lenders otherwise agree,
the Term Loans owing to each Term Loan Lender shall be repaid, without premium,
within 100 days after the last day of each fiscal year of the Company by an
amount equal to 50% of Excess Cash Flow for such fiscal year in accordance with
the provisions of Section 7.4; provided, however, that any Term Loan Lender may
elect to waive its rights to any payment owing to it pursuant to this Section
7.3(c) and, if any Term Loan Lender so elects, the amounts otherwise payable to
such Term Loan Lender (if not made from proceeds of Revolving Credit Loans)
shall instead be applied to repay the Revolving Credit Loans (without any
permanent reduction of the Aggregate Multi-Currency Commitment).
(d) On the Multi-Currency Termination Date, the Aggregate
Multi-Currency Commitment shall terminate and the Borrowers shall cause all
Payment Obligations in respect of the Aggregate Actual Outstanding
Multi-Currency Extensions of Credit to be Fully Satisfied.
(e) Promptly following a Net Proceeds Event (and in any event
within one Business Day following receipt by the relevant Person of the Net
Proceeds from such Net Proceeds Event):
(i) unless the Required Lenders otherwise agree, the Term
Loans shall be repaid and the Aggregate Multi-Currency Commitments shall be
permanently reduced, in the manner set forth in Section 7.4(a), by the amount
equal to the aggregate amount of Net Proceeds received from Net Proceeds Events
described in clause (a) of such definition;
(ii) unless the Required Lenders otherwise agree, the Term
Loans and the Revolving Credit Loans shall be repaid (without any corresponding
reduction of the Aggregate Multi-Currency Commitment), in the manner set forth
in Section 7.4(a), by the amount equal to the portion of the aggregate amount
of Net Proceeds (other than the Net Proceeds from Resale Transactions) received
by the Company and its Subsidiaries from all Net Proceeds Events described in
clause (b) of such definition; provided, however, that (x) no such prepayment
of the Term Loans or the Revolving Credit Loans shall be required pursuant to
this Section 7.3(e)(ii) with respect to any sale, lease, transfer or other
disposition of Term Loan Collateral during any twelve-month period ending on an
anniversary of the date hereof to the extent that the aggregate amount of such
Net Proceeds, together with all other Net Proceeds described in this Section
7.3(e)(ii) received during such period from any sale, lease, transfer or other
disposition of Term Loan Collateral, is less than $10,000,000 or the Equivalent
in any other currency thereof; provided, further, that in the event that the
aggregate Net Proceeds described in this clause (x) received during such
twelve-month period (the "Annual Net Proceeds") is less than $10,000,000, the
difference between $10,000,000 and the Annual Net Proceeds may be added to the
$10,000,000 permitted to be excluded from the prepayment of the Term Loans or
the Revolving Credit Loans pursuant to this clause (x) applicable to any
subsequent twelve-month period (up to a maximum excluded amount not to exceed
$25,000,000 in any such twelve-month period) and (y) for purposes of this
Section 7.3(e)(ii) only, the term "Net Proceeds" shall not include the Net
Proceeds from any Specified Disposition to the extent that the aggregate amount
of Net Proceeds from all Specified Dispositions since the date hereof does not
exceed $25,000,000;
(iii) unless the Required Term Loan Lenders otherwise agree,
the Term Loans shall be repaid by the first $109,700,000 (the "Capital
Contribution Prepayment Amount") of Net Proceeds received by the Company from
all Net Proceeds Events described in clause (c) of such definition; provided,
however, that the Capital Contribution Prepayment Amount shall be reduced by
(A) the amount of proceeds from such Capital Contributions which are applied by
the Company in connection with the Subordinated Notes Redemption, the 8-1/8%
Senior Notes Redemption, the 9% Senior Notes Redemption and any other
repurchase, repayment, defeasance or redemption of any other Indebtedness for
borrowed money of the Company scheduled to mature prior to the Term Loan
Maturity Date and (B) the amount of proceeds from any Equity Offering by Revlon
that are applied by Revlon to repurchase, repay, defease or redeem any
Subordinated Notes, 8-1/8% Senior Notes, 9% Senior Notes or other Indebtedness
for borrowed money of the Company scheduled to mature prior to the Term Loan
Maturity Date, which Indebtedness so purchased is concurrently contributed by
Revlon to the capital of the Company or transferred to the Company in exchange
for the issuance to Revlon of additional Stock or Stock Equivalents of the
Company; and
(iv) unless the Required Multi-Currency Lenders otherwise
agree, the Revolving Credit Loans shall be repaid (without any corresponding
reduction of the Aggregate Multi-Currency Commitment) by the Net Proceeds
received by the Company and its Subsidiaries from all Net Proceeds Events in
respect of Specified Dispositions to the extent excluded from clause (ii)
above;
provided, however, that any Term Loan Lender may elect to waive its rights to
any payment owing pursuant to Sections 7.3(e)(i), (ii) (to the extent such
prepayment results from any sale, lease, transfer or other disposition
requiring the consent of the Required Lenders) and (iii) and, if any Term Loan
Lender so elects, the amounts otherwise payable to such Term Loan Lender shall
instead be applied to repay the Revolving Credit Loans (without any permanent
reduction of the Aggregate Multi-Currency Commitment); provided, further, that
any Term Loans prepaid on or before the third anniversary of the Closing Date
pursuant to this Section 7.3(e) shall be accompanied by a premium in an amount
equal to the Prepayment Fee applicable at such time.
(f) If, any Borrower would incur costs pursuant to Section
7.11 as a result of any payment due pursuant to this Section 7.3 (other than
clause (h) below), such Borrower may deposit the amount of such payment with
the applicable Administrative Agent, for the benefit of the relevant Lenders,
in a Cash Collateral Account under the control of the applicable Administrative
Agent, until the end of the applicable Interest Period at which time such
payment shall be made (provided that such deposit does not violate any
provision of any Indenture then in effect). Each Borrower hereby grants to the
applicable Administrative Agent, for the benefit of such Lenders, a security
interest (or, if the applicable Borrower is a Local Borrowing Subsidiary
organized under the laws of the Commonwealth of Australia or any political
subdivision thereof, the applicable Administrative Agent shall have a right to
apply and setoff such payment toward any amount payable by such Local Borrowing
Subsidiary at the end of the applicable Interest Period) in all amounts in
which such Borrower has any right, title or interest which are from time to
time on deposit in such Cash Collateral Account and expressly waives all rights
(which rights such Borrower hereby acknowledges and agrees are vested
exclusively in the applicable Administrative Agent) to exercise dominion or
control over any such amounts.
(g) Upon the borrowing of Term Loans pursuant to Section 2.1,
the Term Loan Commitment of each Term Loan Lender shall be automatically and
permanently reduced in the amount of the Term Loan made by each Term Loan
Lender pursuant to such borrowing. The Aggregate Term Loan Commitment, if any,
shall terminate on the Closing Date after the funding of the Term Loans.
(h) The Borrowers hereby irrevocably waive the right to
direct, during a Liquidity Event Period or, prior to the delivery of a Notice
of Actionable Default, at any time an Event of Default has occurred and is
continuing, the application of all funds in the Cash Concentration Account or
any other Approved Deposit Account (or any Cash Collateral Account under the
direction of any Loan Party, if any) and agrees that the Multi-Currency
Administrative Agent may (in its sole discretion exercised reasonably) and,
upon the written direction of the Required Multi-Currency Lenders given at any
time during such Liquidity Event Period, shall (i) deliver a Blockage Notice
(or similar term, as defined in each Deposit Account Control Agreement) to each
Deposit Account Bank for each Approved Deposit Account and (ii) apply all
available funds in (A) the Cash Concentration Account or any other Approved
Deposit Account on a daily basis (but only so long as such Liquidity Event
Period or Event of Default, as the case may be, is continuing) as follows:
first, to repay the outstanding principal amount of the Swing Line Loans until
such Swing Line Loans have been repaid in full; and second, to repay the
outstanding principal balance of the Revolving Credit Loans until such
Revolving Credit Loans shall have been repaid in full and (B) such Cash
Collateral Account for the purposes contemplated under the Loan Documents in
its sole discretion exercised reasonably. The Multi-Currency Administrative
Agent agrees to use its commercially reasonable efforts to apply such funds in
accordance with this Section 7.3(h), and the Borrowers consent to such
application. Without diminishing the control of the Collateral Agent (under the
direction of the applicable Agent) over amounts from time to time on deposit in
any Cash Collateral Account, the applicable Agent shall from time to time (upon
the request of the Company so long as no Default or Event of Default shall have
occurred and be continuing) direct the Collateral Agent to promptly return to
the Company any amounts on deposit in such Cash Collateral Account which are in
excess of the amount required to be deposited therein under the Loan Documents.
If no Liquidity Event or Event of Default shall be continuing, the
Multi-Currency Administrative Agent shall not deliver any Blockage Notice and
shall, upon receipt of three Business Days' prior written notice and a
certificate of a Responsible Officer of the Company that no Liquidity Event or
Event of Default is continuing, withdraw all Blockage Notices in effect at such
time.
Section 7.4 Application of Payments and Commitment
Reductions. (a) Any prepayment of the Term Loans or reduction of the Aggregate
Multi-Currency Commitment required pursuant to Section 7.3(e)(i) shall be
applied, first, to the repayment of the Term Loans then outstanding and,
second, to the permanent reduction of the Aggregate Multi-Currency Commitment
then in effect. Any prepayment of the Term Loans and Revolving Credit Loans
required pursuant to Section 7.3(e)(ii) shall be applied, if in respect of the
sale, lease, transfer or other disposition of Term Loan Collateral, to the
repayment of the Term Loans, and if in respect of the sale, lease, transfer or
other disposition of Multi-Currency Facility Collateral or any other assets to
the repayment of the Revolving Credit Loans (without any permanent reduction of
the Aggregate Multi-Currency Commitment).
(b) To the extent that any reduction of the Aggregate
Multi-Currency Commitment necessitates the prepayment of amounts outstanding
thereunder pursuant to Section 7.3, such prepayment shall be applied to repay
the Multi-Currency Loans, the Acceptances and/or the L/C Reimbursement
Obligations (and, to the extent necessary, cause the then outstanding Undrawn
L/C Obligations to be Fully Secured), as the Company and the Local Borrowing
Subsidiaries so determine, subject to Section 7.4(c).
(c) To the extent that any reduction of the Aggregate
Multi-Currency Commitment necessitates the prepayment of Local Loans and
Acceptances outstanding thereunder pursuant to Section 7.3, such prepayment
shall be applied, first, to the Local Loans of such Local Borrowers as the
Company (on its own behalf and as agent of the Local Borrowing Subsidiaries)
may elect and, second, to the Acceptances; provided, however, that, during such
time as an Event of Default has occurred and is continuing, such prepayment
shall be applied to the Local Loans and (to the extent relevant) Acceptances of
such Local Borrowers as the Multi-Currency Administrative Agent may elect.
(d) Any prepayment of the Term Loans required pursuant to
Section 7.3 shall be applied, first, in the direct order of maturity to the
then outstanding installments thereof maturing in the next twelve months and,
second, ratably to the remaining installments thereof.
Section 7.5 Interest Rate and Payment Dates; Risk
Participation Fees; Local Administrative Fee. (a) The Eurodollar Loans shall
bear interest on the unpaid principal amount thereof for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate for such day plus the Applicable Margin.
(b) The Alternate Base Rate Loans shall bear interest on the
unpaid principal amount thereof at a rate per annum equal to the Alternate Base
Rate plus the Applicable Margin.
(c) Each Eurocurrency Loan shall bear interest on the unpaid
principal amount thereof for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate applicable to the
relevant Denomination Currency for such day plus the Applicable Margin.
(d) Each Local Rate Loan shall bear interest on the unpaid
principal amount thereof at a rate per annum equal to the Local Rate applicable
to the relevant Denomination Currency plus the Applicable Margin.
(e) Notwithstanding the rates of interest specified in
clauses (a) through (d) of this Section 7.5 or elsewhere in this Agreement,
effective immediately upon the occurrence of an Event of Default and for as
long thereafter as such Event of Default shall be continuing, all of the
aggregate unpaid principal amount of the Loans, Acceptances and unpaid L/C
Reimbursement Obligations, and (to the extent permitted by applicable law) any
overdue interest, fees and other amounts due under the Loan Documents, shall
(i) bear interest at a rate per annum (the "Default Rate") which is equal to 2%
above (x) the rate which would otherwise be applicable thereto pursuant to this
Section 7.5 or, (y) if no such rate would otherwise be applicable, if due to a
Multi-Currency Lender, the rate applicable to Multi-Currency Loans that are
Alternate Base Rate Loans and, if due to a Term Loan Lender, the rate
applicable to Term Loans that are Alternate Base Rate Loans and (ii) if such
amount is on account of a Eurodollar Loan or a Eurocurrency Loan, be converted
to an Alternate Base Rate Loan or a Local Rate Loan, as the case may be, at the
end of the Interest Period applicable thereto.
(f) Interest on each Syndicated Loan accrued to but not
including each Interest Payment Date applicable thereto shall be payable in
arrears on each such Interest Payment Date; provided, however, that interest
accruing on the principal of or (to the extent permitted by applicable law)
interest or any other amount payable in connection with any such Syndicated
Loan not paid when due (whether at stated maturity, by acceleration or
otherwise), shall be payable from time to time upon demand of the applicable
Administrative Agent acting on the affected Lenders' behalf.
(g) Interest on each Local Loan accrued to but not including
each Interest Payment Date applicable thereto shall be payable in arrears to
the relevant Local Fronting Lender on each such Interest Payment Date;
provided, however, that interest accruing on the principal of, or (to the
extent permitted by applicable law) interest or any other amount payable in
connection with, any Local Loan not paid when due (whether at stated maturity,
by acceleration or otherwise), shall be payable from time to time upon demand
of the Multi-Currency Administrative Agent acting on the affected Local
Fronting Lender's behalf. Interest on each Local Loan shall be payable to the
relevant Local Fronting Lender in the Denomination Currency applicable to it
(or, with respect to Local Loans which are denominated in Dollars, in Dollars).
On each Interest Payment Date (including, without limitation, each Interest
Payment Date with respect to Acceptances), the Local Fronting Lender shall
deliver to the Multi-Currency Administrative Agent, the Company and the
relevant Local Borrowing Subsidiary an Interest Allocation Statement,
substantially in the form of Exhibit P-2, and the Company and the relevant
Local Borrowing Subsidiary shall (in the absence of manifest error) pay the
amount specified therein on such Interest Payment Date.
(h) As promptly as is practicable following each date upon
which a Local Fronting Lender receives a payment of interest under this
Agreement on account of Local Loans and/or Acceptances, such Local Fronting
Lender shall convert into Dollars (at the exchange rate then applicable to it)
the amount equal to (i) the portion of such payment which constitutes the
Applicable Margin thereon (or, with respect to each Multi-Currency Lender which
funded the purchase of a participating interest in such Local Loan or
Acceptance pursuant to Section 6.4(a), as the case may be, such Multi-Currency
Lender's Multi-Currency Commitment Percentage of the full amount of such
interest payment) minus (ii) 1/4 of 1% per annum on the aggregate undiscounted
face amount of the extensions of credit on account of which such interest
payment was made (which unconverted amount shall be retained by such Local
Fronting Lender for its own account). In consideration of the agreement of the
Multi-Currency Lenders to purchase participating interests in the Local Loans
and Acceptances, each Local Fronting Lender hereby agrees to pay to the
Multi-Currency Administrative Agent, for the ratable account of each
Multi-Currency Lender, a risk participation fee in the amount equal to the
proceeds received by such Local Fronting Lender from such conversion (other
than any such proceeds payable for the account of a Non-Funding Lender, which
proceeds shall be retained by such Local Fronting Lender for its own account)
or, if no such conversion is required, the amount which would have been
converted if such interest had been paid in a Denomination Currency; provided,
however, that, in the event that the Multi-Currency Lenders have funded the
purchase of participating interests in the extensions of credit on account of
which such interest payment was made pursuant to Section 6.4(a), such Local
Fronting Lender shall instead pay to the Multi-Currency Administrative Agent,
for the account of each Multi-Currency Lender which has so funded such
purchase, the amount equal to such Multi-Currency Lender's Multi-Currency
Commitment Percentage of the proceeds received by such Local Fronting Lender
from such conversion. Such amount shall be payable to the Multi-Currency
Administrative Agent in Dollars on the date upon which such Local Fronting
Lender receives the proceeds of such conversion. For purposes of this Section
7.5(h), interest shall be deemed to have been received by the Local Fronting
Lender on account of an Acceptance on the last day of the calendar month in
which such Acceptance matures.
(i) On each date upon which any Local Borrower pays interest
to a Local Fronting Lender hereunder on account of any Local Loan and on each
date upon which any Acceptance is created by a Local Lender for the account of
a Local Borrower hereunder, such Local Borrower shall pay to such Local
Fronting Lender (for its own account) a local administrative fee in the amount
equal to 1/4 of 1% per annum on the aggregate principal amount of the Local
Loans with respect to which such interest is being paid or on the aggregate
undiscounted face amount of such Acceptance, as the case may be.
Section 7.6 Letter of Credit Fees, Commissions and Other
Charges. (a) The Company shall pay to the Multi-Currency Administrative Agent,
for the account of the relevant Issuing Lender and the applicable L/C
Participants with respect to each Letter of Credit, a letter of credit
commission with respect to such Letter of Credit in an amount per annum equal
to (i) the Applicable Margin applicable to Revolving Credit Loans that are
Eurodollar Loans on the date of payment of such letter of credit commission
(of which 1/4 of 1% per annum shall be for the account of the relevant Issuing
Lender and the remainder of such fee shall be for the accounts of the relevant
L/C Participants and such Issuing Lender to be shared ratably among them in
accordance with their respective Multi-Currency Commitment Percentages)
multiplied by (ii) the undrawn face amount of such Letter of Credit; provided,
however, that in no event shall such letter of credit commission in respect of
any Commercial Letter of Credit be less than the amount which would be paid in
respect of such Commercial Letter of Credit if it had a tenor of 120 days.
(b) Letter of credit commissions which are payable pursuant
to clause (a) above shall be non-refundable and shall be payable to the
Multi-Currency Administrative Agent in arrears on account of the period from
the issuance date with respect to such Letter of Credit through the day
immediately preceding the next L/C Fee Payment Date (or, if earlier, the expiry
date for such Letter of Credit) and on each succeeding L/C Fee Payment Date on
account of the period from such L/C Fee Payment Date through the day
immediately preceding the next L/C Fee Payment Date (or, if earlier, the expiry
date for such Letter of Credit).
(c) In addition to the foregoing fees and commissions, the
Company shall pay or reimburse the relevant Issuing Lender directly (and not
through the Multi-Currency Administrative Agent) in respect of each Letter of
Credit for such normal and customary costs and expenses as are incurred or
charged by such Issuing Lender in issuing, effecting payment under, amending or
otherwise administering any Letter of Credit issued by it.
(d) The Multi-Currency Administrative Agent shall pay to each
applicable L/C Participant and the relevant Issuing Lender all fees and
commissions (including, without limitation, any fees and commissions paid to
the Multi-Currency Administrative Agent for the account of each such L/C
Participant and such Issuing Lender on the issuance date of any Letter of
Credit) received from time to time by the Multi-Currency Administrative Agent
for their respective accounts pursuant to this Section 7.6 within one Business
Day following each L/C Fee Payment Date.
Section 7.7 Conversion Options, Minimum Tranches and Maximum
Interest Periods. (a) The Borrowers may elect from time to time to convert
outstanding Syndicated Loans from Eurodollar Loans to Alternate Base Rate Loans
by giving the applicable Administrative Agent at least one Business Day's prior
irrevocable notice of such election. The Borrowers may elect from time to time
and at any time to convert outstanding Syndicated Loans from Alternate Base
Rate Loans to Eurodollar Loans by giving the applicable Administrative Agent at
least three Working Days' irrevocable notice of such election; provided,
however, that no Syndicated Loan may be converted into a Eurodollar Loan when
any Event of Default has occurred and is continuing and the applicable
Administrative Agent or the Required Term Loan Lenders or Required
Multi-Currency Lenders, as applicable, so elect by notice to the Company. Upon
receipt of such notice, the applicable Administrative Agent shall promptly
notify each affected Syndicated Lender thereof. On the date on which such
conversion is being made, each such affected Syndicated Lender shall take such
action as is necessary to effect such conversion. All or any part of the
outstanding Syndicated Loans may be converted as provided herein. Each such
notice by the Borrowers shall be in substantially the form of Exhibit I (a
"Notice of Conversion or Continuation"),
(b) Any Syndicated Loans which are Eurodollar Loans may be
continued as such upon the expiration of an Interest Period with respect
thereto by giving the applicable Administrative Agent at least three Working
Days' irrevocable notice for continuation thereof; provided, however, that no
such Eurodollar Loan may be continued as such when any Event of Default has
occurred and is continuing and the applicable Administrative Agent or the
Required Term Loan Lenders or Required Multi-Currency Lenders, as applicable,
so elect by notice to the Company, and, instead, such Eurodollar Loans shall be
automatically converted to an Alternate Base Rate Loan on the last day of the
Interest Period for such Eurodollar Loans. The applicable Administrative Agent
shall notify each affected Syndicated Lender promptly that such automatic
conversion shall occur. Each such notice by the Borrowers shall be in
substantially the form of the Notice of Conversion or Continuation.
(c) Each Borrower may elect from time to time to convert
outstanding Local Loans from Eurodollar Loans to Alternate Base Rate Loans (in
the case of Local Loans which are in Dollars) by giving (or causing the Company
to give) the relevant Local Fronting Lender (with a copy to the Multi-Currency
Administrative Agent) at least two Business Days' prior irrevocable notice of
such election. Each Local Borrower may elect from time to time to convert
outstanding Local Loans from Eurocurrency Loans to Local Rate Loans (in the
case of Local Loans which are in a Denomination Currency) by giving (or causing
the Company to give) the relevant Local Fronting Lender at least two Business
Days' prior irrevocable notice of such election. Each Borrower may elect from
time to time and at any time to convert outstanding Local Loans from Alternate
Base Rate Loans to Eurodollar Loans (in the case of Local Loans which are in
Dollars) by giving (or causing the Company to give) the relevant Local Fronting
Lender (with a copy to the Multi-Currency Administrative Agent) at least three
Working Days' irrevocable notice of such election; provided, however, that no
Alternate Base Rate Loans may be converted to Eurodollar Loans when any Event
of Default has occurred and is continuing and the Multi-Currency Administrative
Agent or the Required Multi-Currency Lenders so elect by notice to the Company.
Each Local Borrower may elect from time to time and at any time to convert
outstanding Local Rate Loans to Eurocurrency Loans (in the case of Local Loans
which are in a Denomination Currency) by giving (or causing the Company to
give) the relevant Local Fronting Lender (with a copy to the Multi-Currency
Administrative Agent) at least three Working Days' irrevocable notice of such
election; provided, further, that no Local Rate Loans may be converted to
Eurocurrency Loans when any Event of Default has occurred and is continuing and
the Multi-Currency Administrative Agent or the Required Multi-Currency Lenders
so elect by notice to the Company. On the date on which such conversion is
being made, the relevant Local Fronting Lender shall take such action as is
necessary to effect such conversion. All or any part of the outstanding Local
Loans may be converted as provided herein.
(d) Any Local Loans which are Eurodollar Loans or
Eurocurrency Loans or (to the extent applicable) Local Rate Loans may be
continued as such upon the expiration of an Interest Period with respect
thereto by giving the relevant Local Fronting Lender (with a copy to the
Multi-Currency Administrative Agent) at least three Working Days' irrevocable
notice for continuation thereof; provided, however, that no such Eurodollar
Loan or Eurocurrency Loan may be continued as such when any Event of Default
has occurred and is continuing and the Multi-Currency Administrative Agent or
the Required Multi-Currency Lenders so elect by notice to the Company and,
instead, such Eurodollar Loans shall be automatically converted to Alternate
Base Rate Loans and such Eurocurrency Loans shall be automatically converted to
Local Rate Loans on the last day of the Interest Period for such Eurodollar
Loans or Eurocurrency Loans. The Multi-Currency Administrative Agent shall
notify the relevant Local Fronting Lenders promptly that such automatic
conversion shall occur.
(e) In the event that a timely notice of conversion or
continuation with regard to Syndicated Loans which are Eurodollar Loans is not
given in accordance with this Section 7.7, then, unless the applicable
Administrative Agent shall have received timely notice from the Company in
accordance with Section 7.2 that such Eurodollar Loans are to be prepaid on the
last day of such Interest Period, the Company shall be deemed irrevocably to
have requested that such Eurodollar Loans be converted into Alternate Base Rate
Loans on the last day of such Interest Period.
(f) In the event that a timely notice of conversion or
continuation with regard to Local Loans which are Eurodollar Loans or
Eurocurrency Loans is not given in accordance with this Section 7.7, then,
unless the relevant Local Fronting Lender shall have received timely notice
from the relevant Borrower in accordance with Section 7.2 that such Eurodollar
Loans or Eurocurrency Loans, as the case may be, are to be prepaid on the last
day of such Interest Period, such Borrower shall be deemed irrevocably to have
requested that such Eurodollar Loans be converted into Alternate Base Rate
Loans or such Eurocurrency Loans be converted into Local Rate Loans, as the
case may be, on the last day of such Interest Period. In the event that a
timely notice of continuation with regard to Local Rate Loans which are subject
to an Interest Period is not given in accordance with this Section 7.7, then,
unless the relevant Local Fronting Lender shall have received timely notice
from the relevant Borrower in accordance with Section 7.2 that such Local Rate
Loans are to be converted into Eurocurrency Loans or prepaid on the last day of
such Interest Period, such Borrower shall be deemed irrevocably to have
requested that such Local Rate Loans be continued as such on the last day of
such Interest Period for a new Interest Period which is the shortest such
Interest Period available to such Borrower from the relevant Local Fronting
Lender.
(g) Any borrowing or continuation of Eurodollar Loans or
Eurocurrency Loans, or conversion to or from Eurodollar Loans or Eurocurrency
Loans, or payments or prepayments of Eurodollar Loans or Eurocurrency Loans,
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (i) the aggregate principal amount of each Tranche of
Syndicated Loans which are Eurodollar Loans or Eurocurrency Loans shall be
$5,000,000 or a whole multiple (to the extent possible) of $1,000,000 in excess
thereof, (ii) the aggregate principal amount of each Tranche of Local Loans
which are Eurodollar Loans, Alternate Base Rate Loans, Eurocurrency Loans and
Local Rate Loans in each Denomination Currency shall be in such amount as may
be mutually agreed upon by the relevant Local Fronting Lender and the relevant
Borrower, (iii) the aggregate principal amount of all Syndicated Loans which
are Alternate Base Rate Loans (other than Swing Line Loans) shall be $2,500,000
or a whole multiple (to the extent possible) of $500,000 in excess thereof and
(iv) there shall not be more than (A) 15 Tranches of Syndicated Loans which are
Eurodollar Loans at any one time outstanding and (B) two Tranches (or such
other number of Tranches as may be mutually agreed upon by the relevant Local
Fronting Lender and the relevant Borrowers) of Local Loans which are Eurodollar
Loans, Eurocurrency Loans and (to the extent that an Interest Period is
applicable thereto) Local Rate Loans in each Denomination Currency at any one
time outstanding.
Section 7.8 Inability to Determine Interest Rate. (a) In the
event that the Designated Multi-Currency Administrative Agent or the relevant
Local Fronting Lender shall have determined (which determination, in the
absence of manifest error, shall be conclusive and binding upon each Borrower)
that by reason of circumstances affecting the relevant interbank eurocurrency
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate or any relevant Eurocurrency Rate for any Interest Period with
respect to (i) any proposed Loan that the relevant Borrower has requested be
made as Eurodollar Loans or Eurocurrency Loans, (ii) a Eurodollar Loan that
will result from the requested conversion of all or part of the Alternate Base
Rate Loans into Eurodollar Loans, (iii) a Eurocurrency Loan that will result
from the requested conversion of all or part of the Local Rate Loans in any
Denomination Currency into Eurocurrency Loans, (iv) the continuation of a
Eurodollar Loan or a Eurocurrency Loan as such for an additional Interest
Period (any such Loan described in clauses (i), (ii), (iii), or (iv) of this
Section 7.8(a) being herein called an "Affected Loan"), the Designated
Multi-Currency Administrative Agent or the relevant Local Fronting Lender (as
the case may be) shall forthwith give telecopy or telephonic notice of such
determination, confirmed in writing, to the relevant Borrower (with a copy to
the Company, the Designated Multi-Currency Administrative Agent and any
affected Lenders) at least two Business Days prior to, as the case may be, the
borrowing date for such Eurodollar Loan or Eurocurrency Loan, the conversion
date for such Alternate Base Rate Loan or Local Rate Loan or the last day of
the Interest Period applicable to such Eurodollar Loan or Eurocurrency Loan.
Unless the relevant Borrower shall have notified the Designated Multi-Currency
Administrative Agent (in the case of any Syndicated Loan), the relevant Local
Fronting Lender (in the case of any Local Loan) or the Designated
Multi-Currency Administrative Agent promptly upon receipt of such telecopy or
telephonic notice that it wishes to rescind or modify its request regarding
such Affected Loans, then, as the case may be, (x) any requested Eurodollar
Loan shall be made as an Alternate Base Rate Loan, continued as an Alternate
Base Rate Loan or converted into an Alternate Base Rate Loan or (y) any
requested Local Loan which is a Eurocurrency Loan shall be made as a Local Rate
Loan, continued as a Local Rate Loan or converted into a Local Rate Loan. Until
any such notice has been withdrawn by the Designated Multi-Currency
Administrative Agent or the relevant Local Fronting Lender, as the case may be,
no further Affected Loans shall be made.
(b) In the event that the Lenders holding the majority of the
relevant Commitment determine that the Eurocurrency Rate determined or to be
determined for such Interest Period will not accurately reflect the cost to
them of making or maintaining any Syndicated Loans that a Borrower has
requested that they make or maintain as, or convert to, Eurodollar Loans or
Eurocurrency Loans, as the case may be, the applicable Administrative Agent
shall forthwith give telecopy or telephonic notice of such determination to
such Borrower (with a copy to the Company, to the extent that the Company is
not such Borrower) on or before the requested borrowing, conversion or
continuation date for such Syndicated Loans or the next succeeding Interest
Period with respect thereto. Unless the relevant Borrower shall have notified
the applicable Administrative Agent promptly after receipt of such telecopy or
telephonic notice that it wishes to rescind or modify its borrowing request,
then any such Eurodollar Loans shall be made as or converted to Alternate Base
Rate Loans.
Section 7.9 Illegality. (a) Notwithstanding any other
provision herein, if any change in law, rule, regulation, treaty or directive
or in the interpretation or application thereof, shall make it unlawful for any
Lender (other than a Local Fronting Lender) to make or maintain Eurodollar
Loans or Eurocurrency Loans as contemplated by this Agreement or to accept
deposits in order to make or maintain such Eurodollar Loans or Eurocurrency
Loans, as the case may be, (i) such Lender shall promptly notify the applicable
Administrative Agent and the Company thereof, (ii) the agreements of such
Lender hereunder to make, continue or convert to Eurodollar Loans or
Eurocurrency Loans, as the case may be, shall be suspended forthwith and (iii)
such Lender's Syndicated Loans then outstanding as Eurodollar Loans or
Eurocurrency Loans, if any, shall in the case of Eurodollar Loans or
Eurocurrency Loans, automatically become Alternate Base Rate Loans for the
duration of the respective Interest Periods applicable thereto (or, if
permitted by applicable law, at the end of such Interest Periods).
(b) Notwithstanding any other provision herein, if any change
in law, rule, regulation, treaty or directive or in the interpretation or
application thereof, shall make it unlawful for any Local Fronting Lender to
make or maintain Local Loans as Eurodollar Loans in Dollars or Eurocurrency
Loans in the Denomination Currency applicable to it as contemplated by this
Agreement or to accept deposits in order to make or maintain such Eurocurrency
Loans, (i) such Local Fronting Lender shall promptly notify the Multi-Currency
Administrative Agent, the Company and the relevant Local Borrowing Subsidiary
thereof, (ii) the agreements of such Local Fronting Lender hereunder to make or
convert to Eurodollar Loans or Eurocurrency Loans, as the case may be, shall be
suspended forthwith, (iii) such Local Fronting Lender's Local Loans then
outstanding as (A) Eurocurrency Loans, if any, shall automatically become Local
Rate Loans for the duration of the respective Interest Periods applicable
thereto (or, if permitted by applicable law, at the end of such Interest
Periods) or (B) Eurodollar Loans, if any, shall automatically become Alternate
Base Rate Loans for the duration of the respective Interest Periods applicable
thereto (or, if permitted by applicable law, at the end of such Interest
Periods).
(c) Notwithstanding any other provision herein, if any change
in law, rule, regulation, treaty or directive or in the interpretation or
application thereof, shall make it unlawful for any Multi-Currency Lender to
purchase a participating interest in any Local Loan or Acceptance, such
Multi-Currency Lender shall use reasonable efforts (including reasonable
efforts to change the office in which it is booking such participating
interest) to avoid such prohibition; provided, however, that such efforts shall
not cause the imposition on such Multi-Currency Lender of any additional costs
or legal or regulatory burdens deemed by such Multi-Currency Lender to be
material or otherwise be deemed by such Multi-Currency Lender to be
disadvantageous to it or contrary to its policies. In the event that such
efforts are not sufficient to avoid such prohibition, (i) such Multi-Currency
Lender shall be deemed to be a Non-Funding Lender with respect to such
participating interest and the Local Loan or Acceptance, as the case may be, to
which it relates (except that such Multi-Currency Lender shall not forfeit its
voting rights under this Agreement solely as a result of becoming a Non-Funding
Lender pursuant to the provisions of this clause (c)), (ii) such Multi-Currency
Lender shall promptly notify the Multi-Currency Administrative Agent, the
relevant Local Fronting Lender, the Company and the relevant Local Borrowing
Subsidiary thereof and (iii) the agreements of such Local Fronting Lender to
make further Local Loans (or, to the extent applicable, to make further Local
Loans upon such interest rate basis) and Acceptances hereunder shall be
suspended forthwith.
(d) The Company agrees promptly to pay to any Syndicated
Lender, and each Borrower agrees promptly to pay to any Local Fronting Lender,
any additional amounts necessary to compensate such Lender for any costs
incurred by it as a consequence of such Borrower making any repayment in
accordance with this Section 7.9, including, without limitation, any interest
or fees payable by such Lender to lenders of funds obtained by it in order to
make or maintain its Eurodollar Loans or Eurocurrency Loans, as the case may
be. A certificate as to any such costs payable pursuant to this Section 7.9
submitted by an officer of any Lender, through the applicable Administrative
Agent, to the Company (on its own behalf or as agent of the Borrowers) shall be
conclusive, in the absence of manifest error.
Section 7.10 Requirements of Law; Changes of Law. (a) In the
event that the adoption of or any change in law, rule, regulation, treaty or
directive or in the interpretation or application thereof, or compliance by any
Lender with any request or directive (whether or not having the force of law)
issued after the date hereof from any central bank or other Governmental
Authority:
(i) imposes upon such Lender any tax of any kind whatsoever
with respect to this Agreement, its Notes, any Letter of Credit, any
Application or any Loan, or changes the basis of taxation of payments to such
Lender of principal, commitment fee, interest or any other amount payable
hereunder (except for (w) income and franchise taxes imposed on such Lender by
the jurisdiction under the laws of which such Lender is organized or any
political subdivision or taxing authority thereof or therein, or by the
jurisdiction of the principal office of such Lender or any political
subdivision or taxing authority thereof or therein or the office of such Lender
from which it is making its Loans or any political subdivision or taxing
authority thereof or therein, (x) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction
described in clause (w) above, (y) taxes resulting from the substitution of any
such system by another system of taxation, provided, however, that the taxes
payable by such Lender subject to such other system of taxation are not
generally charged to borrowers from such Lender having loans or advances
bearing interest at a rate similar to the Eurodollar Rate, the Eurocurrency
Rate or the Local Rate and (z) Non-Excluded Taxes, Other Taxes, and taxes
imposed by way of deduction or withholding, which shall be exclusively governed
by Section 7.12);
(ii) imposes, modifies or holds applicable any reserve,
special deposit, compulsory loan or similar requirement against any Loan made,
or assets held by, or credit extended by, or deposits or other liabilities in
or for the account of, or acquisition of funds by or for the account of, any
office of such Lender, which is not otherwise included in the determination of
the Eurodollar Rate, the Eurocurrency Rate or the Local Rate, as the case may
be, hereunder; or
(iii) imposes on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender
of making, renewing, maintaining or participating in advances or extensions of
credit (including, without limitation, Acceptances) or issuing or participating
in Letters of Credit or to reduce any amount receivable by it in respect of its
Eurodollar Loans, Eurocurrency Loans or Local Rate Loans, then, in any such
case, the relevant Borrower shall promptly pay such Lender any additional
amounts necessary to compensate such Lender for such additional cost or reduced
amount receivable as reasonably determined by it with respect to this Agreement
(including, without limitation, its participating interests in Letters of
Credit, Acceptances and Local Loans), its Notes or its Loans after taking into
account any amounts paid or payable pursuant to Section 7.12(a). If a Lender
becomes entitled to claim any additional amounts pursuant to this Section
7.10(a), it shall promptly notify the relevant Borrower, through the applicable
Administrative Agent, of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to the
foregoing sentence submitted by an officer of a Lender, through the applicable
Administrative Agent, to the relevant Borrower shall be conclusive, in the
absence of manifest error.
(b) In the event that any Lender shall have determined that
the adoption of any law, rule, regulation or guideline adopted pursuant to or
arising out of the International Convergence of Capital Measurement and Capital
Standards or of any Requirement of Law otherwise regarding capital adequacy, or
any change therein or in the interpretation or application thereof or
compliance by any Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) from any central bank or
Governmental Authority, does or shall have the effect of reducing the rate of
return on such Lender's capital as a consequence of its obligations hereunder
or under any Acceptance or Letter of Credit to a level below that which such
Lender could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's policies with respect to capital adequacy) by
an amount which is reasonably deemed by such Lender to be material, then from
time to time, promptly after submission by such Lender, through the applicable
Administrative Agent, to the relevant Borrower of a written request therefor,
such Borrower shall promptly pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.
(c) The agreements in this Section 7.10 shall survive the
termination of this Agreement and payment of the Loans, the Notes, the Drafts,
the L/C Reimbursement Obligations and all other amounts payable hereunder.
Section 7.11 Indemnity. Each Borrower agrees to promptly pay
and indemnify each Lender for, and to hold such Lender harmless from, any loss
or expense which such Lender may sustain or incur in its reemployment of funds
obtained in connection with the making or maintaining of, or converting to,
Eurodollar Loans, Eurocurrency Loans or Local Rate Loans (including, without
limitation, its participating interests therein) as a consequence of (a) any
default by such Borrower in borrowing such Eurodollar Loans, Eurocurrency Loans
or Local Rate Loans after such Borrower has given a notice in respect thereof
or (b) any default by such Borrower in converting (i) Alternate Base Rate Loans
to Eurodollar Loans or Eurocurrency Loans, (ii) Eurocurrency Loans to Local
Rate Loans or (iii) Local Rate Loans to Eurodollar Loans or Eurocurrency Loans,
after such Borrower has given a notice in respect thereof or (c) any failure by
such Borrower to prepay Eurodollar Loans, Eurocurrency Loans or Local Rate
Loans, as the case may be, after such Borrower has given notice in respect
thereof or (d) any payment, prepayment (whether optional or mandatory) or
conversion (whether optional or mandatory) of any Eurodollar Loan or
Eurocurrency Loan (or, to the extent applicable, Local Rate Loan) by such
Borrower on a day which is not the last day of an Interest Period with respect
thereto. A certificate as to any additional amounts payable pursuant to this
Section 7.11 submitted by an officer of a Lender, through the applicable
Administrative Agent, to the relevant Borrower shall be conclusive, absent
manifest error. The agreements in this Section 7.11 shall survive termination
of this Agreement and payment of the Loans, the Notes, the Drafts, the L/C
Reimbursement Obligations and all other amounts payable hereunder.
Section 7.12 Taxes. (a) All payments made by each Borrower
under this Agreement shall be made free and clear of, and without reduction
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding, in the case of the Administrative Agents, the Collateral
Agent and each Lender, (i) income and franchise taxes imposed on the
Administrative Agents, the Collateral Agent or such Lender by the jurisdiction
under the laws of which it is organized or any political subdivision or taxing
authority thereof or therein, or by the jurisdiction of the principal office
of the Administrative Agents, the Collateral Agent or such Lender or the
office of such Lender from which it is making its Loans or any political
subdivision or taxing authority thereof or therein, but not excluding any such
tax imposed on or with respect to a Multi-Currency Lender that is required to
be withheld by a Local Fronting Lender or Borrower with respect to any
payments due to a Multi-Currency Lender from such Local Fronting Lender or
Borrower pursuant to this Agreement and (ii) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction described in clause (i) above (all such non-excluded Taxes being
called "Non-Excluded Taxes"). If any Non-Excluded Taxes are required to be
withheld from any amounts payable to the Administrative Agents, the Collateral
Agent, or any Lender hereunder, under the Notes or in respect of any Loan,
Draft or Letter of Credit, the amounts so payable to it shall (without any
obligation on the part of any Borrower to pay such amounts ratably in
accordance with the provisions of Section 7.5) be increased to the extent
necessary to yield to the Administrative Agents, the Collateral Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and the Notes. Whenever any Non-Excluded Taxes or Other Taxes are
payable by a Borrower, as promptly as possible thereafter, such Borrower shall
send to the Administrative Agents, for its own account or for the account of
the Collateral Agent, or such Lender, as the case may be, a certified copy of
an original official receipt showing payment thereof. If any Borrower fails to
pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agents the required receipts
or other required documentary evidence, such Borrower shall indemnify the
Administrative Agents, the Collateral Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agents, the Collateral Agent or any Lender as a result of any
such failure. For purposes of this Section 7.12 all payments made by a Local
Fronting Lender pursuant to this Agreement shall be treated as if such
payments were made by the relevant Borrower.
(b) In addition, each Borrower shall pay, or cause to be
paid, any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) Except as the Company shall otherwise consent, each
Lender hereby severally (but not jointly) represents that, under applicable law
and treaties in effect on the date of this Agreement (or, in the case of a
Transferee, the date such Person became a Transferee), no United States federal
taxes will be required to be withheld by the Administrative Agents or the
Company with respect to any payments to be made to such Lender in respect of
this Agreement. Each Lender or Transferee which itself is not a U.S. person as
defined in Section 7701(a)(30) of the Code for federal income tax purposes or
which is lending from an office that is not incorporated under the laws of the
United States of America or a state thereof agrees severally (but not jointly)
that it will:
(i) (1) prior to the Closing Date (or, in the case of a
Transferee, prior to the date it becomes a Transferee), deliver to the Company
and the applicable Administrative Agent two duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI, or successor applicable
form, as the case may be, certifying in each case that such Lender or
Transferee is entitled to receive all payments under this Agreement, the Notes
and the Drafts payable to it, without deduction or withholding of any United
States federal income taxes;
(2) deliver to the Company and the applicable Administrative
Agent two further copies of the such Form W-8BEN or W-8ECI, or successor
applicable form, or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Company; and
(3) use its reasonable efforts to obtain such extensions or
renewals thereof as may reasonably be requested by the Company, certifying that
such Lender or Transferee is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
Non-Excluded Taxes; or
(ii) in the case of any such Lender or Transferee that is not
a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (i) represent
to the Company (for the benefit of the Company and the applicable
Administrative Agent) that it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, a "10-percent shareholder" within the meaning of
Section 881(c)(3)(B) of the Code or a controlled foreign corporation receiving
interest from a related person for purposes of Section 881(c)(3)(C) of the
Code, (ii) agree to furnish to the Company on or before the date of any payment
by the Company, with a copy to the applicable Administrative Agent, (A) a
certificate substantially in the form of Exhibit Q hereto (any such certificate
a "U.S. Tax Compliance Certificate") and (B) two accurate and complete original
signed copies of United States Internal Revenue Service Form W-8BEN, or
successor applicable form certifying to such Lender's or Transferee's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Code with respect
to payments to be made under this Agreement (and to deliver to the Company and
the applicable Administrative Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form and, if necessary,
obtain any extensions of time reasonably requested by the Company or the
applicable Administrative Agent for filing and completing such forms), and
(iii) agree, to the extent legally entitled to do so, upon reasonable request
by the Company, to provide to the Company (for the benefit of the Company and
the applicable Administrative Agent) such other forms as may be reasonably
required to establish the legal entitlement of such Lender or Transferee to an
exemption from withholding with respect to payments under this Agreement;
unless in any such case any change in law, rule, regulation, treaty or
directive, or in the interpretation or application thereof, has occurred prior
to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender or
Transferee from duly completing and delivering any such form with respect to it
and such Lender or Transferee advises the Company that it is not capable of
receiving payments without any deduction or withholding of United States
federal income tax. Notwithstanding any provision of Section 7.12(a) to the
contrary, the Company shall have no obligation to pay any amount to or for the
account of any such Lender or Transferee on account of any Non-Excluded Taxes
pursuant to Section 7.12(a) (including, without limitation, the second sentence
thereof) to the extent that such amount results from (i) the failure of any
such Lender or Transferee to comply with its obligations pursuant to this
Section 7.12(c) or (ii) any representation or warranty made or deemed to be
made by any such Lender or Transferee pursuant to this Section 7.12(c) proving
to have been incorrect, false or misleading in any material respect when so
made or deemed to be made.
(d) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change the office in which it is booking its Loans) to
avoid or to minimize any amounts in respect of taxes which might otherwise be
payable pursuant to Section 7.10 or this Section 7.12; provided, however, that
such efforts shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender to be material or
otherwise be deemed by such Lender to be disadvantageous to it or contrary to
its policies.
(e) In the event that such reasonable efforts pursuant to
Section 7.12(c)(i) are insufficient to avoid all withholding taxes which would
be payable pursuant to this Section 7.12, then such Lender (the "Taxable
Lender") shall use its reasonable efforts to transfer, at the cost of the
Company, to any other Lender (which is not subject to such withholding taxes)
its Dollar Loans and its Commitments hereunder; provided, however, that such
transfer shall not be deemed by such Taxable Lender, in its sole discretion, to
be disadvantageous to it or contrary to its policies. In the event that the
Taxable Lender is unable, or otherwise is unwilling, so to transfer its Dollar
Loans and Commitments, the Company may, at its own cost, designate an alternate
bank or other financial institution to purchase the Taxable Lender's Dollar
Loans and Commitments and, subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld), the Taxable Lender shall
transfer, at the cost of the Company, its Dollar Loans and Commitments to such
alternate bank or other financial institution and such alternate bank or other
financial institution shall become a Lender hereunder.
(f) The agreements in this Section 7.12 shall survive
termination of this Agreement and payment of the Loans, the Notes, the Drafts,
the L/C Reimbursement Obligations and all other amounts payable hereunder.
(g) If a Lender or an Administrative Agent receives a refund
in respect of any Non-Excluded Taxes or Other Taxes with respect to which the
Company has paid additional amounts pursuant to this Section 7.12, it shall
within a reasonable time from the date of such receipt pay over the amount of
such refund to the Company, net of all reasonable out-of-pocket expenses of
such Lender or Administrative Agent and without interest (other than interest
paid by the relevant taxation authority with respect to such refund); provided,
however, that the Company, upon the request of such Lender or Administrative
Agent, agrees to repay the amount paid or portion thereof over to the Company
(plus penalties, interest or other reasonable charges) to such Lender or
Administrative Agent in the event such Lender or Administrative Agent is
required to repay such refund or portion thereof to such taxation authority.
Section 7.13 Commitment Fee. (a) The Company agrees to pay
to the Multi-Currency Administrative Agent, for the account of each
Multi-Currency Lender, a commitment fee from and including the Closing Date in
the amount equal to the Commitment Fee Rate on the amount equal to the
Multi-Currency Commitment Percentage of such Multi-Currency Lender multiplied
by the average daily amount by which the Aggregate Multi-Currency Commitment
exceeds the Aggregate Actual Outstanding Multi-Currency Extensions of Credit
(without taking into account any amount of Swing Line Loans from time to time
outstanding) during the period for which such fee is payable.
(b) Each commitment fee owing pursuant to Section 7.13(a)
shall be payable, in arrears, (x) for each fiscal quarter of the Company (or
portion thereof) following the Closing Date, on the date which is two Business
Days following the last day of each such fiscal quarter (commencing on
September 30, 2004); provided, however, that if the Company shall not have
received from the Multi-Currency Administrative Agent the documentation
supporting calculations of such commitment fee prior to such date, then, on the
date which is two Business Days after the date of the Company's receipt from
the Multi-Currency Administrative Agent of such supporting documentation and
(y) on the last day of the Commitment Period.
Section 7.14 Computation of Interest and Fees. (a) Interest
in respect of the Alternate Base Rate Loans bearing interest at a rate based
upon clause (i) of the definition of "Alternate Base Rate" shall be calculated
on the basis of a 365 or 366-day year, as the case may be, for the actual days
elapsed. Interest in respect of the Local Rate Loans and Acceptances shall be
calculated on the basis of a 365 or 366-day year, as the case may be, for the
actual days elapsed or on such other basis as may be agreed from time to time
by the relevant Local Fronting Lender and the relevant Borrowers to reflect
customary practices in the relevant jurisdiction. Interest in respect of the
Alternate Base Rate Loans bearing interest at a rate based upon the Federal
Funds Effective Rate, the Eurodollar Loans, the Eurocurrency Loans, Letter of
Credit commissions and commitment fees shall be calculated on the basis of a
360-day year for the actual days elapsed (or, in the case of Eurocurrency
Loans, such other basis as may be agreed from time to time by the relevant
Local Fronting Lender and the relevant Borrower to reflect customary practices
in the relevant jurisdiction). The Designated Multi-Currency Administrative
Agent will, as soon as practicable, notify the Company and the Syndicated
Lenders of each determination of a Eurodollar Rate with respect to Syndicated
Loans and of any change in the Alternate Base Rate with respect to Syndicated
Loans and the effective date thereof. Each Local Fronting Lender will, as soon
as practicable, notify the relevant Borrower and the Multi-Currency
Administrative Agent of each determination of a Eurocurrency Rate for its
Denomination Currency, of a Eurodollar Rate for its Local Loans which are
Dollar Loans, of any change in the Local Rate for its Denomination Currency, of
any change in the Alternate Base Rate for its Local Loans which are Dollar
Loans and (in each case) the effective date thereof. Any change in the interest
rate on a Syndicated Loan which is an Alternate Base Rate Loan resulting from a
change in the Alternate Base Rate shall become effective as of the opening of
business on the day on which such change shall become effective. Any change in
the interest rate on a Local Loan which is an Alternate Base Rate Loan
resulting from a change in the Alternate Base Rate shall become effective as of
the opening of business in the jurisdiction of the local lending office of the
relevant Local Fronting Lender on the day on which such change shall become
effective. Any change in the interest rate on a Local Rate Loan resulting from
a change in the Local Rate shall become effective as of the opening of business
on the day on which such change in the Local Rate shall become effective.
(b) Except as set forth in Section 7.8, each determination of
an interest rate by the Designated Multi-Currency Administrative Agent or the
Local Fronting Lender, as the case may be, pursuant to any provision of this
Agreement shall be conclusive and binding on the relevant Borrower and the
Lenders, in the absence of manifest error.
Section 7.15 Pro Rata Treatment and Payments. (a) Each
borrowing by any Local Borrower of Local Loans and Acceptances shall be made
from the Local Fronting Lender with respect to the relevant Denomination
Currency.
(b) On any date when and to the extent that, in the
reasonable determination of the Multi-Currency Administrative Agent in its sole
discretion, the Borrowers would be able, under the terms and conditions hereof,
to reborrow the amount of such payment (or otherwise obtain additional
extensions of credit) under the Aggregate Multi-Currency Commitment and to
satisfy any conditions precedent to such reborrowing (or other extension of
credit), no portion of any such payment shall be distributed to any Lender (a
"Non-Funding Lender") which has (x) failed to make a Revolving Credit Loan or
Refunded Swing Line Loan or to purchase (or otherwise make any payment on
account of) any participating interest held by such Non-Funding Lender in any
L/C Reimbursement Obligation, Acceptance or Local Loan or (y) given notice to
the Company, any Local Fronting Lender or the Multi-Currency Administrative
Agent that it will not make, or that it has disaffirmed or repudiated any
obligation to make, any Revolving Credit Loans or Refunded Swing Line Loans, or
to purchase (or otherwise make any payment on account of) any participating
interest held by such Non-Funding Lender in any L/C Reimbursement Obligation,
Acceptance or Local Loan, in any such case by reason of the provisions of the
Financial Institution Reform, Recovery and Enforcement Act of 1989 or otherwise
(other than as the result of a good faith belief that the conditions precedent
to borrowing set forth in Section 9.2 have not been satisfied).
(c) All payments (including prepayments) to be made by the
Company on account of principal, interest and fees (other than those relating
to Local Loans and Acceptances) shall be made without set-off or counterclaim
and shall be made to the applicable Administrative Agent for the account of the
relevant Lenders (or, in the case of payments on account of Swing Line Loans,
to the Multi-Currency Administrative Agent for the account of the Swing Line
Lender) at the office of the applicable Administrative Agent specified in
Section 14.2, or at such other location as such Administrative Agent may
direct, on or prior to 1:00 P.M., New York City time, in lawful money of the
United States of America and in immediately available funds. The applicable
Administrative Agent shall distribute such payments in accordance with the
provisions of Section 7.15(g) promptly upon receipt in like funds as received;
provided, however, that payments received by the Multi-Currency Administrative
Agent on account of interest or fees on the Local Loans and Acceptances may be
held by the Multi-Currency Administrative Agent and distributed to the
Multi-Currency Lenders not less frequently than weekly.
(d) All payments (including prepayments) to be made by any
Local Borrower on account of principal, interest and fees relating to Local
Loans and Acceptances shall be made without set-off or counterclaim and shall
be made to the Local Fronting Lender to which such amounts are owing at the
office of such Local Fronting Lender specified in Schedule III, or at such
other location as such Local Fronting Lender may direct, on or prior to 1:00
P.M., local time at the principal lending office of such Local Fronting Lender.
Each such payment shall, to the extent that it is owing on account of Local
Loans which are Dollar Loans, be paid in Dollars and, otherwise, shall be paid
in the relevant Denomination Currency and in immediately available funds. Each
Local Fronting Lender shall give prompt notice to the Multi-Currency
Administrative Agent of amounts from time to time received by it hereunder.
(e) If any payment hereunder (other than payments on
Eurodollar Loans or Eurocurrency Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension. If any
payment hereunder on a Eurodollar Loan or a Eurocurrency Loan becomes due and
payable on a day other than a Working Day, the maturity thereof shall be
extended to the next succeeding Working Day unless the effect of such
extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Working
Day.
(f) Unless the applicable Administrative Agent shall have
been notified by telephone, confirmed in writing, by any Syndicated Lender
prior to a borrowing date that such Lender will not make the amount which would
constitute its Commitment Percentage of the borrowing to be made on such date
available to such Administrative Agent on such borrowing date, such
Administrative Agent may assume that such Syndicated Lender has made such
amount available to such Administrative Agent and, in reliance upon such
assumption, make available to the relevant Borrower a corresponding amount. If
such amount is made available to the applicable Administrative Agent on a date
after such borrowing date, such Syndicated Lender shall pay to such
Administrative Agent on demand an amount equal to the product of (i) the daily
average Federal Funds Effective Rate during such period as determined by such
Administrative Agent multiplied by (ii) such amount multiplied by (iii) a
fraction of which the numerator is the number of days from and including such
borrowing date to the date on which such amount becomes immediately available
to such Administrative Agent and of which the denominator is 360. A certificate
of the applicable Administrative Agent submitted to any Syndicated Lender with
respect to any amounts owing under this paragraph (f) shall be conclusive, in
the absence of manifest error. If such amount is not in fact made available to
the applicable Administrative Agent by such Syndicated Lender within three
Business Days after such borrowing date, such Administrative Agent shall be
entitled to recover such amount, with interest thereon at the rate per annum
then applicable to Revolving Credit Loans that are Alternate Base Rate Loans
hereunder, within eight Business Days after demand, from the relevant Borrower.
(g) Unless a Notice of Actionable Default has been delivered
pursuant to the Intercreditor Agreement, except as otherwise expressly set
forth herein, all payments and any other amounts received by any Administrative
Agent from or for the benefit of the Borrowers shall be applied as follows:
first, to pay principal of, and interest on, any portion of the Loans any
Administrative Agent may have advanced pursuant to the express provisions of
this Agreement on behalf of any Lender, for which such Administrative Agent has
not then been reimbursed by such Lender or the Loan Parties; second, to pay
fees and expenses of the Agents then due and payable; third, all other Payment
Obligations then due and payable; and fourth, as the Company so designates. All
such payments shall be allocated ratably among such of the Agents, Lenders and
Issuing Lenders as are entitled thereto; provided, however, that all such
payments received (i) in respect of any Swing Line Loans shall be distributed
to the Swing Line Lender, (ii) in respect of any Local Loans to the applicable
Loan Fronting Lender and (iii) in respect of any L/C Reimbursement Obligations
to the applicable Issuing Lender.
(h) The Borrowers hereby irrevocably waive the right to
direct the application of any and all payments in respect of the Payment
Obligations (including all funds deposited in the Cash Concentration Account,
any other Approved Deposit Account or any Cash Collateral Account) after the
occurrence and during the continuance of an Event of Default and agree that,
notwithstanding the provisions of Section 7.3, Section 7.4 or Section 7.15(g),
after the delivery of a Notice of Actionable Default and prior to the
withdrawal of all Notices of Actionable Default then pending pursuant to the
Intercreditor Agreement, (i) all payments made to or received by any Agent,
Lender or Issuing Lender constituting proceeds of Collateral shall be applied
pursuant to the Intercreditor Agreement and (ii) all other payments made to or
received by any Agent, Lender or Issuing Lender shall be applied in the
following order:
(i) first, to pay interest on and then principal of any
portion of any Loans that any Agent may have advanced on behalf of any Lender
or Issuing Lender for which such Agent has not then been reimbursed by such
Lender or the Loan Parties;
(ii) second, to pay Payment Obligations in respect of any
expense reimbursements or indemnities then due to the Agents;
(iii) third, to pay Payment Obligations in respect of any
expense reimbursements or indemnities then due to the Lenders and
Issuing Lenders;
(iv) fourth, to pay Payment Obligations in respect of any
fees then due to the Agents;
(v) fifth, to pay Payment Obligations in respect of any fees
then due to the Lenders and Issuing Lenders;
(vi) sixth, to pay interest then due and payable in respect
of all Payment Obligations;
(vii) seventh, to pay or prepay principal payments (and, when
applicable, to provide cash collateral) for all Payment Obligations;
(viii) eighth, to pay all other Payment Obligations; and
(ix) ninth, as directed by the Company;
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any of the Payment Obligations set forth in
any of clauses first through eighth above, the available funds being applied
with respect to any such Payment Obligation (unless otherwise specified in such
clause) shall be allocated to the payment of such Payment Obligations ratably,
based on the proportion of each Agent's and each Lender's interest in the
aggregate outstanding Payment Obligations described in such clauses; provided,
further, that payments that would otherwise be allocated to the Multi-Currency
Lenders shall be allocated first to repay Protective Advances and Swing Line
Loans until paid in full, second to repay Local Loans until such Loans are paid
in full and then to repay the Revolving Credit Loans. The order of payment
application set forth in clauses (i) through (viii) above may be amended at any
time and from time to time by the Required Lenders without any notice to or
consent of or approval by any Loan Party or any other Person that is not a
party to this Agreement; provided, however, that (i) any such amendment
adversely affecting any Agent shall also require the prior written consent of
such Agent, (ii) any such amendment not adversely affecting the Multi-Currency
Lenders shall not require the consent of the Required Multi-Currency Lenders
and (iii) any such amendment not adversely affecting the Term Loan Lenders
shall not require the consent of the Required Term Loan Lenders.
(i) At the option of the Multi-Currency Administrative Agent,
principal on the Swing Line Loans, L/C Reimbursement Obligations, interest,
fees, expenses and other sums due and payable in respect of the Revolving
Credit Loans and Protective Advances may be paid from the proceeds of Swing
Line Loans or Revolving Credit Loans. The Company, each Lender and each Issuing
Lender hereby authorizes the Swing Line Lender to make such Swing Line Loans
pursuant to Article IV and the Multi-Currency Lenders to make such Revolving
Credit Loans pursuant to Article III from time to time in the amounts of any
and all principal payable with respect to the Swing Line Loans, L/C
Reimbursement Obligations, interest, fees, expenses and other sums payable in
respect of the Revolving Credit Loans and Protective Advances, and further
authorizes the Multi-Currency Administrative Agent to give the Multi-Currency
Lenders notice of any borrowing with respect to such Swing Line Loans and
Revolving Credit Loans and to distribute the proceeds of such Swing Line Loans
and Revolving Credit Loans to pay such amounts. The Borrowers agree that all
such Swing Line Loans and Revolving Credit Loans so made shall be deemed to
have been requested by it (irrespective of the satisfaction of the conditions
in Section 9.2, which conditions the Multi-Currency Lenders hereby irrevocably
waive for the purposes of this clause (i)) and directs that all proceeds
thereof shall be used to pay such amounts.
Section 7.16 Interest Act (Canada). For purposes of the
Interest Act (Canada), whenever any interest under this Agreement on account of
Local Loans or Acceptances which are made in Canada or made to any Local
Borrowing Subsidiary which is organized under the laws of Canada or any
Province thereof is calculated using a rate based upon a year of 360 days, such
rate determined pursuant to such calculation, when expressed as an annual rate,
is equivalent to (x) the applicable rate based upon a year of 360 days, (y)
multiplied by the actual number of days in the calendar year in which the
period for which such interest is payable ends, and (z) divided by 360. The
rates of interest specified in this Agreement are nominal rates and all
interest payments and computations are to be made without allowance or
deduction for deemed reinvestment of interest.
Article VIII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuing Lenders, the
Administrative Agents and the Collateral Agent to enter into this Agreement and
to make the Loans and to issue or participate in Letters of Credit hereunder,
the Company hereby represents and warrants to each of them that:
Section 8.1 Corporate Existence. Each Loan Party is duly
organized, validly existing and (to the extent applicable under the laws of the
jurisdiction of its organization) in good standing under the laws of the
jurisdiction of its incorporation, has the corporate (or other requisite legal)
power to own its assets and to transact the business in which it is presently
engaged, and is (to the extent applicable under the laws of the relevant
jurisdiction) duly qualified as a foreign corporation and (to the extent
applicable under the laws of the relevant jurisdiction) in good standing under
the laws of each jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification and where all such failures
to so qualify and be in good standing would, in the aggregate, be reasonably
likely to have a Material Adverse Effect.
Section 8.2 Corporate Power. (a) Each Loan Party has the
corporate power, authority and legal right to execute, deliver and perform this
Agreement and the other Loan Documents to which it is a party and, in the case
of each of the Borrowers, to borrow hereunder, and it has taken as of the
Closing Date all necessary corporate action to authorize the execution,
delivery and performance of this Agreement and the other Loan Documents to
which it is a party and, in the case of each of the Borrowers, to authorize its
borrowings on the terms and conditions of this Agreement.
(b) No consent of any other Person (including, without
limitation, stockholders or creditors of any Borrower or of any Parent of the
Company), and no consent, license, permit, approval or authorization of,
exemption by, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement and the other Loan Documents to
which any Loan Party is a party by or against such Loan Party, except for (i)
filing of the Mortgages referred to in Section 9.1(d), (ii) any filings
required under the UCC, (iii) any filings required to be made with the U.S.
Patent and Trademark Office and the U.S. Copyright Office, (iv) any filings,
notices, consents, licenses, permits, approvals, authorizations, registrations
or declarations required under the laws of jurisdictions other than the United
States or any political subdivision thereof in connection with the pledge of
stock of Foreign Subsidiaries or any assets located in, or created under, the
laws of any such jurisdiction or political subdivision and (v) any consents,
licenses, permits, approvals or authorizations, exemptions, registrations,
filings or declarations that have already been obtained and remain in full
force and effect.
(c) This Agreement has been, and the other Loan Documents to
which it is a party will be, executed and delivered by a duly authorized
officer of each Loan Party. This Agreement constitutes, and the other Loan
Documents to which it is a party, when executed and delivered by it and the
other parties thereto, will constitute, the legal, valid and binding
obligations of each Loan Party, enforceable against it in accordance with their
respective terms except as enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
creditors' rights generally and except as enforceability may be limited by
general principles of equity.
Section 8.3 No Legal Bar to Loans. The execution, delivery
and performance by each Loan Party of each Loan Document to which it is a party
will not violate any Contractual Obligation or material Requirement of Law to
which such Loan Party is a party, or, to the best knowledge of the Company, any
Parent of the Company is a party or by which such Loan Party or, to the best
knowledge of the Company, any Parent of the Company or any of their respective
material properties or assets may be bound, and will not result in the creation
or imposition of any Lien (other than under the Security Documents or as
contemplated by the Intercreditor Agreement) on any of their respective
material properties or assets pursuant to the provisions of any Contractual
Obligation.
Section 8.4 No Material Litigation. No litigation,
investigation or administrative proceeding of or before any court, arbitrator
or Governmental Authority is presently pending or, to the knowledge of any Loan
Party, threatened against it, any of the other Loan Parties, or any of its or
their properties or assets, (a) with respect to this Agreement, any other Loan
Document or any of the transactions contemplated hereby or thereby, (b) with
respect to the validity or enforceability of the obligations of any Borrower or
any Loan Party under this Agreement and the other Loan Documents to which it is
a party, (c) with respect to the rights of the relevant Issuing Lender, any L/C
Participant, or the Agents with respect to any Application or Letter of Credit,
(d) with respect to the rights of the relevant Local Fronting Lender or the
Multi-Currency Lenders with respect to any Local Loan or Acceptance or (e)
which would be reasonably likely to have a Material Adverse Effect, except (in
the case of this clause (e) only) for any litigation, investigation or
administrative proceeding which has been disclosed in any of the Company's or
Revlon's public filings with the Securities and Exchange Commission including
its Form 10-K for the fiscal year ended December 31, 2003 and its reports on
Form 10-Q for the fiscal quarter ended March 31, 2004 or which arises out of
the same facts and circumstances, and alleges substantially the same complaints
and damages, as any litigation, investigation or proceeding so disclosed and in
which there has been no material adverse change since the date of such
disclosure.
Section 8.5 No Default. No Borrower nor any of its
Subsidiaries is in default in any material respect in the payment or
performance of any material obligations or in the performance of any
Contractual Obligation to which it is a party or by which it or any of its
material properties or assets may be bound, and no Default hereunder has
occurred and is continuing. No Borrower nor any of its Subsidiaries is in
default under any material order, award or decree of any court, arbitrator or
Governmental Authority binding upon or affecting it or by which any of its
material properties or assets is bound or affected, and no such order, award or
decree would be reasonably likely to have a Material Adverse Effect.
Section 8.6 Ownership of Properties; Liens. Except as is or
would be permitted pursuant to Section 11.3, each Borrower and its Subsidiaries
has (a) good and marketable title to all its owned, and valid leasehold
interests in all its leased, real property and (b) good title to all its owned,
and valid leasehold interests in all its leased, personal properties and
assets, in each case subject to no Lien.
Section 8.7 Taxes. (a) Each Borrower and each of its
Subsidiaries and, to the best knowledge of the Company, any other member (as
such term is defined in Treasury Regulations ss.1.1502-1(b), or any similar
provision of state, local or foreign law) of the consolidated, combined or
unitary group (if any) of which the Company is or was a member, has timely
filed or caused to be timely filed all material tax returns (including, without
limitation, information returns) which are required to be filed, and have paid
all material taxes (whether or not shown to be due and payable on such returns)
or on any assessments made against them (other than those being contested in
good faith by appropriate proceedings for which adequate reserves (in
accordance with GAAP) have been provided on the books of such Borrower or such
Subsidiary, or other member of the consolidated, combined or unitary group, as
the case may be), and no tax Liens which violate Section 11.3(a) have been
filed. As of the date hereof, the period within which United States federal
income taxes may be assessed against any Borrower and each of its Subsidiaries
has expired without further extension or waiver for all taxable years ending on
or before December 31, 1988 and for the taxable years ending on December 31,
1996, December 31, 1997, December 31, 1998, and December 31, 1999; the Internal
Revenue Service has concluded its audit of all remaining years ending on or
before December 31, 2001, with no material adjustments, and the period within
which United States federal income taxes may be assessed against any Borrower
and each of its Subsidiaries are scheduled to expire on December 31, 2004, for
all of those years, excluding the taxable year ending December 31, 2000, for
which the period is scheduled to expire on January 10, 2005, and the taxable
year ending December 31, 2001, for which the period is scheduled to expire on
September 16, 2005.
(b) The Company does not intend to treat the Loans and the
Letters of Credit and the related transactions contemplated hereby as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4).
Section 8.8 ERISA. No Reportable Event has occurred during
the immediately preceding six-year period with respect to any Plan that
resulted or would be reasonably likely to result in any unpaid liability that
would be reasonably likely to have a Material Adverse Effect, and each Plan
(other than any Multiemployer Plan or any multiemployer health or welfare plan)
has complied and has been administered in compliance with applicable provisions
of ERISA and the Code except for such non-compliance that would not be
reasonably likely to have a Material Adverse Effect. The amount by which the
present value of all accrued benefits under each Single Employer Plan
maintained by each Borrower or any Commonly Controlled Entity (based on then
current assumptions used to fund such Plan), as of the last annual valuation
date applicable thereto, exceeds the value of the assets of each such Plan
allocable to such benefits, in the aggregate for all such Plans as to which
such present value of benefits exceeds the value of its assets (the "Unfunded
Pension Amount"), when aggregated with the Potential Withdrawal Liability (as
hereinafter defined), is less than $60,000,000. No Borrower nor any Commonly
Controlled Entity has during the immediately preceding six-year period had a
complete or partial withdrawal from any Multiemployer Plan that resulted or
would be reasonably likely to result in any unpaid withdrawal liability under
Section 4201 of ERISA that would be reasonably likely to have a Material
Adverse Effect, and the withdrawal liability under Section 4201 of ERISA to
which a Borrower or any Commonly Controlled Entity would become subject under
ERISA if such Borrower or any Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the most recent valuation date
applicable thereto (the "Potential Withdrawal Liability"), when aggregated with
the Unfunded Pension Amount, is not in excess of $60,000,000. No Borrower nor
any Commonly Controlled Entity has received notice that any Multiemployer Plan
is in Reorganization or Insolvent where such Reorganization or Insolvency has
resulted, or would be reasonably likely to result in an unpaid liability that
would be reasonably likely to have a Material Adverse Effect nor, to the best
knowledge of such Borrower, is any such Reorganization or Insolvency reasonably
likely to occur.
Section 8.9 Financial Condition. The audited consolidated
balance sheets of the Company and its Subsidiaries as at December 31, 2001,
December 31, 2002 and December 31, 2003 and the related audited consolidated
statements of operations and stockholders' equity and cash flows for the fiscal
years ended on such dates and the notes thereto present fairly the consolidated
financial condition of the Company and its Subsidiaries as of such dates, and
the consolidated results of their operations and cash flows for the fiscal
years then ended. The unaudited consolidated condensed balance sheet of the
Company and its Subsidiaries as at March 31, 2004 and the related unaudited
consolidated condensed statements of operations and stockholders' equity and
cash flows for the period ended on such date and the notes thereto present
fairly the consolidated financial condition of the Company and its Subsidiaries
as of such date, and the consolidated results of their operations and cash
flows for the period then ended (subject to normal year-end audit adjustments
and the absence of footnotes). All such financial statements, have been
prepared in accordance with GAAP (subject, in the case of the interim financial
statements, to normal year-end audit adjustments and the absence of footnotes)
applied consistently throughout the periods presented except as disclosed in
such financial statements and the notes thereto. Neither the Company nor any of
its Subsidiaries has any material Contingent Obligation or any material
obligation, liability or commitment, direct or contingent (including, without
limitation, any liability for taxes or any material forward or long-term
commitment), which is not (A) reflected in the foregoing statements and the
notes thereto or (B) permitted to be incurred under this Agreement.
Section 8.10 No Change. Since March 31, 2004, there has been
no material adverse change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of either of (a) Revlon or (b)
the Company and its Subsidiaries taken as a whole.
Section 8.11 Federal Regulations. No Borrower nor any of its
Subsidiaries is engaged or will engage, principally or as one of its important
activities, in the business of extending credit for the purpose of "purchasing"
or "carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board of Governors of the Federal
Reserve System. No part of the proceeds of the Loans or other extensions of
credit hereunder will be used for any purpose which violates the provisions of
Regulation U or X of such Board of Governors. In the event that any part of the
proceeds of the extensions of credit hereunder are used to "purchase" or
"carry" any such "margin stock," the Company will (and will cause its
Subsidiaries to) provide such documents and information (including, without
limitation, duly completed and executed originals of Federal Reserve Form G-3
or U-1) to the Administrative Agents and the Lenders as the Administrative
Agents reasonably may request in order to evidence that the representations and
warranties contained in this Section 8.11 remain true and correct in all
material respects.
Section 8.12 Investment Company Act; PUHCA. None of Revlon,
the Company or any Subsidiary of the Company is (a) an "investment company" or
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as each such term is defined and used in the Investment
Company Act of 1940, as amended, or (b) a "holding company" or an "affiliate",
a "holding company" or a "subsidiary company" of a "holding company", as each
such term is defined and used in the Public Utility Holding Company Act of
1935, as amended.
Section 8.13 Matters Relating to Subsidiaries. Set forth in
Schedule 8.13 is a complete and accurate list showing all Subsidiaries of
Revlon and the Company as of the date of this Agreement and, as to each such
Subsidiary, the jurisdiction of its organization, the percentage of the
outstanding shares of stock owned (directly or indirectly) by the Company and
the direct parent thereof.
Section 8.14 Mortgages. Each Mortgage is effective to grant a
legal, valid and enforceable mortgage lien on all of the mortgagor's right,
title and interest in the Mortgaged Property thereunder. When each Mortgage is
duly recorded in the appropriate county office or offices and the mortgage
recording fees and taxes in respect thereof are paid and compliance is
otherwise had with the formal requirements of state law applicable to the
recording of real estate mortgages generally, such Mortgage shall constitute a
fully perfected, first-priority lien on and security interest in such Mortgaged
Property, subject only to Customary Permitted Liens and such Liens, defects and
encumbrances as may be approved by the Multi-Currency Administrative Agent and
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
Section 8.15 Solvency. (a) The aggregate value of all of the
assets of the Company on a consolidated and an unconsolidated basis, at a fair
valuation, exceeds the total liabilities of the Company on a consolidated and
an unconsolidated basis (including contingent, subordinated, unmatured and
unliquidated liabilities). The Company has the ability to pay its debts as they
mature and it does not have unreasonably small capital with which to conduct
its business. For purposes of this Section 8.15, the "fair valuation" of such
assets shall be determined on the basis of that amount which may be realized
within a reasonable time, in any manner through realization of the value of or
dispositions of such assets at the regular market value, conceiving the latter
as the amount which could be obtained for the property in question within such
period by a capable and diligent business person from an interested buyer who
is willing to purchase under ordinary selling conditions.
(b) Each Borrower is in compliance with all material
Requirements of Law applicable to it with respect to capitalization and, to the
knowledge of the Company or such Local Borrowing Subsidiary, has sufficient
capital with which to conduct its business in accordance with past practice. No
Borrower is undercapitalized to such an extent that, solely as a result of such
undercapitalization, (i) any Lender would be deemed under the laws of the
relevant jurisdiction to owe a fiduciary duty to any other creditor of such
Borrower or (ii) the Local Loans made or the Acceptances created by the
relevant Local Fronting Lender to such Borrower would be subordinated to any
obligations of such Borrower owing to any other Person.
Section 8.16 Environmental Matters. (a) Except as set forth in
Schedule 8.16 hereto, and except to the extent provided in clause (b) below:
(i) the Mortgaged Properties do not contain any Hazardous
Materials in concentrations which violate any applicable Environmental
Laws governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of Hazardous
Materials;
(ii) the Mortgaged Properties are in compliance with all
Environmental Laws, including all applicable federal, state and local
standards and requirements regarding the generation, treatment,
storage, handling, use or disposal of Hazardous Materials at the
Mortgaged Properties and there is no Hazardous Materials contamination
which could materially interfere with the continued operation of the
Mortgaged Properties or materially impair the fair saleable value
thereof;
(iii) none of the Company or any Subsidiary of the Company
has received, or is aware of, any existing or contemplated notice of
violation or potential liability by any regulatory agency or Person
regarding environmental control matters or permit compliance with
regard to the Mortgaged Properties;
(iv) Hazardous Materials have not been transferred from the
Mortgaged Properties to any other location in violation of any
applicable Environmental Laws and the Company has not received notice
of any potential liability associated with such transferred materials;
and
(v) there are no administrative actions or judicial
proceedings by a Governmental Authority or other Person pending or
contemplated under any applicable Environmental Laws to which the
Company, any Subsidiary of the Company or any mortgagor is or will be
named as a party with respect to the Mortgaged Properties.
(b) Each of the representations and warranties set forth in
Section 8.16(a) are true and correct with respect to each parcel of real
property owned or operated by the Company or any of its Subsidiaries, except to
the extent that individually or in the aggregate with all items set forth on
Schedule 8.16 and the facts and circumstances giving rise to any such failure
to be so true and correct would not be reasonably likely to have a Material
Adverse Effect.
(c) The Company and any Subsidiary of the Company is in
compliance with Environmental Laws and is not aware of any facts, circumstances
or conditions relating to the Company, any Subsidiary of the Company or any
real property currently or formerly owned, operated or leased by the Company or
any Subsidiary of the Company that would result in the Company or any
Subsidiary incurring liability under Environmental Laws, except for such
noncompliance or liability which individually or in the aggregate would not be
reasonably likely to have a Material Adverse Effect.
Section 8.17 Models. (a) The financial models and pro forma
financial statements referenced in Section 9.1(j), together with any notes
thereto, were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were reasonable in light of conditions existing at
the time of delivery of such models and pro forma financial statements, and
represented, at the time of delivery, the Company's best estimate of its future
financial performance.
(b) After giving effect to the transactions contemplated by
this Agreement, the Company and its Subsidiaries will have recorded assets and
liabilities substantially similar to the recorded assets and liabilities
contemplated for such date by the pro forma balance sheet referenced in Section
9.1(j).
(c) The financial models (if any) relating to the Company and
provided to each Lender pursuant to Section 10.1(b), together with any notes
thereto, were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were reasonable in light of conditions existing at
the time of delivery of such models and represented, at the time of delivery,
the Company's best estimate of its future financial performance.
Section 8.18 Disclosure. No information, schedule, exhibit or
report or other document furnished by the Company, its Subsidiaries or
Affiliates to any Agent or any Lender in connection with the negotiation of
this Agreement and the Security Documents or pursuant to the terms of this
Agreement and the Security Documents, as such information, schedule, exhibit or
report or other document has been amended, supplemented or superseded by any
other information, schedule, exhibit or report or other document later
delivered to the same parties receiving such information, schedule, exhibit or
report or other document, contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the statements
contained therein, in light of the circumstances when made, not materially
misleading.
Section 8.19 Senior Indebtedness. The Payment Obligations of
the Company constitute "Senior Debt" (or any analogous term) for purposes of
the Subordinated Notes and any Indebtedness issued pursuant to Section 11.2(b),
the Net Proceeds of which are used for the Subordinated Notes Redemption.
Section 8.20 Regulation H. No Mortgaged Property is located
in an area that has been identified by the Secretary of Housing and Urban
Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of
1968.
Section 8.21 Affiliate Obligations. Other than trade
payables, other Indebtedness in the ordinary course of business or any interest
payable from time to time in respect of and in accordance with the terms of any
such Indebtedness, no Indebtedness is owing to the Company or any of its
Subsidiaries from the Affiliates of the Company on the Closing Date, other than
amounts permitted pursuant to Section 11.8(f).
Section 8.22 Indebtedness Owing to Affiliates. No Affiliate
of the Company (other than officers and directors of the Company and its
Subsidiaries) holds any Indebtedness of the Company or any of its Subsidiaries
(not including (i) any trade credit in the ordinary course of business, (ii)
any Capital Contribution Note, (iii) any Indebtedness in respect of the M&FH
Loans, (iv) any Indebtedness permitted under Section 11.2(o) or (v) any
Indebtedness of the Company or any of its Subsidiaries of a class that is
publicly held or issued pursuant to a Rule 144A offering, including
Indebtedness issued under an Indenture), except to the extent that such
Affiliate has duly executed and delivered to the Administrative Agents an
Affiliate Subordination Letter which remains in full force and effect.
Article IX
CONDITIONS PRECEDENT
Section 9.1 Conditions to Initial Extensions of Credit. The
agreement of the relevant Lenders to make the initial extensions of credit
(regardless of whether such extensions of credit are to be made in the form of
Loans, Acceptances or Letters of Credit) requested to be made by it hereunder
and the effectiveness of this Agreement shall be subject to the satisfaction or
waiver by such Lender of the following conditions precedent (the date on which
such conditions are satisfied or waived (except to the extent set forth in
Section 10.16) being herein called the "Closing Date"):
(a) Execution of Agreement. This Agreement shall have become
binding upon the parties hereto in accordance with Section 14.12 and the
Administrative Agents shall have received a Local Fronting Lender Joinder
Agreement, duly executed and delivered by each Local Fronting Lender listed on
Schedule III.
(b) Notes. The Administrative Agents shall have received:
(i) for the account of each Term Loan Lender which has so
requested, a Term Loan Note conforming to the requirements hereof and
executed and delivered by a duly authorized officer of the Company;
and
(ii) for the account of each Multi-Currency Lender which has
so requested, a Revolving Credit Note conforming to the requirements
hereof and executed and delivered by a duly authorized officer of the
Company.
(c) Pledge and Security Agreement. The Administrative Agents
shall have received the Pledge and Security Agreement, duly executed by the
Company and each Guarantor, together with each of the following:
(i) evidence satisfactory to the Administrative Agents that,
upon the filing and recording of instruments delivered on the Closing
Date, the Collateral Agent (for the benefit of the Secured Parties)
shall have a valid and perfected security interest in the Collateral,
including such documents duly executed by each Loan Party as the
Administrative Agents may request with respect to the perfection of
the Collateral Agent's security interests in the Collateral (including
financing statements under the UCC, patent, trademark and copyright
security agreements suitable for filing with the U.S. Patent and
Trademark Office or the U.S. Copyright Office, as the case may be, and
other applicable documents under the laws of the United States and the
United Kingdom and any political subdivision thereof with respect to
the perfection of Liens created by the Pledge and Security Agreement);
(ii) all certificates, instruments and other documents
representing all Pledged Stock being pledged pursuant to such Pledge
and Security Agreement and stock powers for such certificates,
instruments and other documents executed in blank;
(iii) all instruments representing Pledged Debt Instruments
being pledged pursuant to such Pledge and Security Agreement duly
endorsed in favor of the Collateral Agent or in blank; and
(iv) all Deposit Account Control Agreements, duly executed by
the corresponding Deposit Account Bank and Loan Party, that, in the
reasonable judgment of the Multi-Currency Administrative Agent, shall
be required for the Loan Parties to comply with Section 10.19.
(d) Mortgages. The Administrative Agents shall have received
(i) Mortgages for the Real Property identified on Schedule 9.1(d) in form and
substance reasonably satisfactory to the Administrative Agent, duly executed
and delivered by a duly authorized officer of the Company, and (ii) all
Mortgage Supporting Documents relating thereto.
(e) Lien Searches. The Administrative Agents shall have
received the results of Lien searches as of a recent date, conducted by a
search service reasonably satisfactory to the Administrative Agents, and the
Administrative Agents shall be satisfied that no Liens are outstanding on the
property or assets of any Loan Party, other than any such Liens (i) which are
permitted pursuant to the terms of the Loan Documents or (ii) as to which the
Administrative Agents have received documentation reasonably satisfactory to
them evidencing the termination or concurrent termination of such Liens.
(f) Corporate Proceedings. The Administrative Agents shall
have received (a) certified copies of the Charter and by-laws (or analogous
organizational documents) of each Borrower and each Loan Party (together with a
certified English translation thereof with respect to any such document which
is not in English) and (b) the resolutions (or analogous authorizations), in
form and substance reasonably satisfactory to the Administrative Agents, of the
Board of Directors of each Borrower and each Loan Party (together with a
certified English translation thereof with respect to any such document which
is not in English), authorizing in each case the execution, delivery and
performance of this Agreement, the Notes and the other Loan Documents to which
such Borrower or such Loan Party is a party, in each case certified by the
Secretary or an Assistant Secretary of such Borrower or such Loan Party as of
the Closing Date and each such certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded as of
the date of such certificate.
(g) Incumbency Certificates. The Administrative Agents shall
have received a certificate of the Secretary or an Assistant Secretary (or
analogous officer) of each Borrower and each Loan Party dated the Closing Date,
as to the incumbency and signature of the officers of such Borrower and such
Loan Party executing each of this Agreement, the Notes and each other Loan
Document to which such Borrower and such Loan Party is a party, and any
certificate or other documents to be delivered by it pursuant thereto, together
with evidence of the incumbency of such Secretary or Assistant Secretary as the
case may be.
(h) Certain Legal Opinions. The Administrative Agents shall
have received executed legal opinions of:
(i) Paul, Weiss, Rifkind, Wharton & Garrison LLP, as counsel
to the Company and as special New York counsel to the Borrowing
Subsidiaries, substantially in the form of Exhibit L-1;
(ii) the Executive Vice President, Chief Legal Officer and
General Counsel of the Company, substantially in the form of Exhibit
L-2;
(iii) Weil, Gotshal & Manages LLP, as counsel to the
Administrative Agents, substantially in the form of Exhibit L-3;
(iv) each of the domestic local counsel listed on Schedule
9.1(h)(iv), in form and substance reasonably acceptable to the
Administrative Agents; and
(v) each of the international local counsel listed on
Schedule 9.1(h)(v), in form and substance reasonably acceptable to the
Administrative Agents.
Each of the foregoing legal opinions shall be accompanied by copies of the
legal opinions, if any, upon which such counsel rely, and in each case shall
contain such changes thereto as may be approved by, and as shall otherwise be
in form and substance reasonably satisfactory to, the Administrative Agents and
shall cover such other matters incident to the transactions contemplated by the
Loan Documents as the Administrative Agents may reasonably require. Each of the
counsel delivering the foregoing legal opinions is expressly instructed to
deliver its opinion for the benefit of each of the Administrative Agents, the
Collateral Agent, each Lender and each Issuing Lender.
(i) Fees. The Administrative Agents shall have received or
shall concurrently receive, for the accounts of the Lenders, each Agent and the
Arranger, all accrued fees and expenses owing hereunder or in connection
herewith to such Persons (including, without limitation, accrued fees and
disbursements of primary counsel, local counsel and special counsel to the
Administrative Agents and the Collateral Agent), to the extent that such fees
and expenses have been presented for payment a reasonable time prior to the
Closing Date.
(j) Financial Models. The Administrative Agents shall have
received consolidated financial models (including, without limitation,
projections through the Company's 2010 fiscal year) and pro forma financial
statements relating to the Company and its Subsidiaries (which financial models
and pro forma consolidated financial statements shall be in form and substance
reasonably satisfactory to the Administrative Agents), certified by a
Responsible Officer of the Company as (i) being the financial models and pro
forma financial statements referenced in Section 8.17(a) and (ii) having been
delivered to each Lender prior to the date of execution by such Lender of this
Agreement.
(k) Financial Statements. The Administrative Agents shall
have received copies of the financial statements referenced in Section 8.9.
(l) Compliance with Indentures. The making of the extensions
of credit hereunder and the granting of the Liens under the Security Documents
shall not violate any provisions of the Indentures, and the Administrative
Agents shall have received a certificate of a Responsible Officer of the
Company (which certificate shall be in form and substance reasonably
satisfactory to the Administrative Agents) certifying that the transactions
contemplated hereby do not necessitate the sharing (on an equal and ratable
basis or otherwise) of collateral security granted pursuant to the Security
Documents with any trustee or holder of Indebtedness under the Indentures.
(m) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal, diligence and financial matters
in connection with the transactions contemplated by the Loan Documents shall be
reasonably satisfactory in form and substance to the Administrative Agents and
their counsel.
(n) Intercreditor Agreement. The Administrative Agents shall
have received the Intercreditor Agreement, duly executed and delivered by duly
authorized officers of each of the parties thereto.
(o) Refinancing, Repurchase and/or Redemption. The
Administrative Agents shall have received satisfactory evidence that (i)(A) the
Company shall have obtained consents to the extent necessary under the
Designated Senior Secured Indenture, if any, to permit the incurrence of the
Term Loans and the extensions of credit then made under the Multi-Currency
Facility, and (B) all Indebtedness outstanding under the Designated Senior
Secured Indenture shall have been repurchased, repaid or redeemed in full or,
to the extent that any Designated Senior Secured Notes shall remain outstanding
after the Closing Date, an amount of the proceeds of the Term Loans and, if
necessary, Revolving Credit Loans made on the Closing Date, sufficient to
purchase, redeem or defease such Designated Senior Secured Notes and pay
interest and any premium thereon shall, at the Company's option, be deposited
in a defeasance trust with the trustee under the Designated Senior Secured
Indenture or placed in a Cash Collateral Account under the direction of the
Term Loan Administrative Agent pending their use to repurchase, redeem or
defease such Designated Senior Secured Notes, and (ii) all Liens granted, and
guarantees made, in connection with the Designated Senior Secured Notes shall
have been, or shall concurrently be released or terminated, as the case may be,
or arrangements reasonably satisfactory to the Administrative Agents shall have
been made for such release or termination.
(p) Solvency Certificate. The Administrative Agents shall
have received a solvency certificate, in the form attached hereto as Exhibit R
from the Chief Financial Officer of the Company.
(q) USA Patriot Act. Each of the Lenders shall have received,
sufficiently in advance of the Closing Date, all documentation and other
information required by the applicable Governmental Authorities under
applicable "know your customer" and anti-money laundering rules and
regulations, including without limitation the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act").
(r) Cash Management. The Multi-Currency Administrative Agent
shall have received evidence that, as of the Closing Date, the procedures with
respect to cash management required by the Security Documents have been
established and are currently being maintained by the Company and each
Subsidiary Guarantor, together with copies of all executed lockbox agreements
and Deposit Account Control Agreements executed by the Company and such
Subsidiary Guarantor in connection therewith.
(s) Refinancing of Existing Credit Agreement. (i) All
obligations under the Existing Agreement shall have been repaid in full, (ii)
the Existing Agreement and all Loan Documents (as defined therein) shall have
been terminated on terms satisfactory to the Administrative Agents and (iii)
the Administrative Agents shall have received a payoff letter duly executed and
delivered by the Company and the Administrative Agent under the Existing
Agreement or other evidence of such termination, in each case in form and
substance satisfactory to the Administrative Agents.
(t) Debt Rating Condition. The Term Loan Facility shall be
rated at least B- by S&P and at least B3 by Moody's, both of which ratings
shall remain in effect on the Closing Date.
(u) Field Examination; Initial Appraisals. The Multi-Currency
Administrative Agent shall be satisfied with the results of a field examination
of the Company and its Subsidiaries conducted by Citicorp's internal auditors
no more than 10 days prior to the Closing Date and shall have received
appraisals (the "Initial Appraisals") of all Inventory, Accounts, Real Property
and Equipment of the Company and the Subsidiary Guarantors, each in form and
substance satisfactory to the Multi-Currency Administrative Agent.
(v) Intellectual Property. The Administrative Agents shall
have received a certificate of a Responsible Officer of the Company (which
certificate shall be in form and substance reasonably satisfactory to the
Administrative Agents) certifying that the Company has received from Murray,
Devine & Co., Inc. an appraisal of its and its Subsidiaries' Trademarks,
Patents and certain other intangible assets valuing such Trademarks, Patents
and intangible assets in excess of 167% of the aggregate principal amount of
Term Loans made on the Closing Date.
(w) Insurance. The Administrative Agents shall have received
evidence reasonably satisfactory to them that the insurance policies required
by Section 10.5 and any Collateral Document are in full force and effect,
together with endorsements naming the Collateral Agent, on behalf of the
Secured Parties, as an additional insured or loss payee under all insurance
policies to be maintained with respect to the properties of the Company and its
Subsidiaries.
Section 9.2 Conditions to Each Extension of Credit. The
agreement of each Lender to make any Loan (other than any Revolving Credit Loan
the proceeds of which are to be used exclusively to repay Refunded Swing Line
Loans) requested to be made by it on any date, the agreement of each Local
Fronting Lender to create any Acceptances to be created by it on any date and
the agreement of the Issuing Lender to issue any Letter of Credit to be issued
by it on any date (including, without limitation, its initial extension of
credit), are subject to the satisfaction of the following conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit.
With respect to any Loan, the applicable Administrative Agent (and, with
respect to Swing Line Loans, the Swing Line Lender and, with respect to Local
Loans, the relevant Local Fronting Lender) shall have received a duly executed
Notice of Borrowing (or, in the case of Swing Line Loans, a duly executed Swing
Line Loan Request), and, with respect to any Letter of Credit, the
Multi-Currency Administrative Agent and the Issuing Lender shall have received
a duly executed Application.
(b) Representations and Warranties. Each of the
representations and warranties made by each party to each Loan Document in or
pursuant to this Agreement or any other Loan Document, or contained in any
certificate or financial statement (other than estimates and projections which
are (x) identified as such and (y) contained in any financial statement)
furnished at any time under or in connection with this Agreement or any other
Loan Document shall be true and correct in all material respects on and as of
such date as if made on and as of such date (except to the extent that such
representations and warranties relate to a particular date, in which case such
representations and warranties shall be true and correct in all material
respects on and as of such date), both before and after giving effect to such
Loan, the creation of such Acceptance or the issuance of such Letter of Credit,
as the case may be, and to all other extensions of credit to be made on such
date and the use of the proceeds thereof.
(c) No Default. No Event of Default and no Default shall have
occurred and be continuing on such date, before and after giving effect to the
extensions of credit requested to be made on such date.
(d) Borrowing Base. The Company shall have delivered the
Borrowing Base Certificate most recently required to be delivered by Section
10.17. After giving effect to the Loans requested to be made, the Acceptances
requested to be created or the Letters of Credit requested to be issued on any
such date and the use of proceeds thereof, the Aggregate Outstanding
Multi-Currency Extensions of Credit shall not exceed the Maximum Multi-Currency
Availability at such time.
(e) Liquidity Event Period. On such date, and after giving
effect to the extensions of credit requested to be made on such date, either
(i) no Liquidity Event Period shall have commenced and be continuing or (ii) if
a Liquidity Event Period shall have commenced and be continuing, the
Consolidated Fixed Charge Coverage Ratio of the Company and its Subsidiaries
for the period of four consecutive fiscal quarters of the Company ending on the
last day of the most recent fiscal quarter prior to such date shall be greater
than or equal to 1.00 to 1.00.
Each borrowing by, and Letter of Credit issued on behalf of,
a Borrower hereunder (including, without limitation, each borrowing effected
through the creation of an Acceptance) shall constitute a representation and
warranty by the Company and (to the extent that such Borrower is not the
Company) such Borrower, as of the date of such borrowing or other extension of
credit, that the conditions contained in paragraphs (b), (c), (d) and (e) of
this Section 9.2 have been satisfied.
Section 9.3 Conditions to Each Facilities Increase. Each
Facilities Increase shall not become effective prior to the satisfaction of all
of the following conditions precedent:
(a) Certain Documents. The Multi-Currency Administrative
Agent shall have received on or prior to the Facilities Increase Date for such
Facilities Increase each of the following, each dated such Facilities Increase
Date unless otherwise indicated or agreed to by the Multi-Currency
Administrative Agent and each in form and substance satisfactory to the
Multi-Currency Administrative Agent:
(i) written commitments duly executed by existing Lenders (or
their Affiliates or Approved Funds) or Eligible Assignees in an
aggregate amount equal to the amount of the proposed Facilities
Increase (as agreed between the Company and the Multi-Currency
Administrative Agent but in any case not to exceed, in the aggregate
for all such Facilities Increases, the maximum amount set forth in
Section 3.1(b)) and, in the case of each such Eligible Assignee or
Affiliate or Approved Fund that is not an existing Lender, an
assumption agreement in form and substance satisfactory to the
Multi-Currency Administrative Agent and duly executed by the Company,
the Multi-Currency Administrative Agent and such Affiliate, Approved
Fund or Eligible Assignee;
(ii) an amendment to this Agreement (including to Schedule
II), effective as of the Facilities Increase Date and executed by the
Company and the Administrative Agents, to the extent necessary to
implement terms and conditions of the Facilities Increase as agreed by
the Company and the Multi-Currency Administrative Agent but which, in
any case, shall not be materially different from the existing
Multi-Currency Facility;
(iii) certified copies of resolutions of the Board of
Directors of the Company and each Guarantor approving the consummation
of such Facilities Increase and the execution, delivery and
performance of the corresponding amendments to this Agreement and the
other documents to be executed in connection therewith;
(iv) a favorable opinion of counsel for the Company and each
Guarantor, addressed to the Administrative Agents, the Lenders and the
Issuing Lenders and in form and substance and from counsel reasonably
satisfactory to the Multi-Currency Administrative Agent; and
(v) such other document as the Multi-Currency Administrative
Agent may reasonably request or as any Lender participating in such
Facilities Increase may require as a condition to its commitment in
such Facilities Increase.
(b) Fee and Expenses Paid. There shall have been paid to the
Multi-Currency Administrative Agent, for the account of the Multi-Currency
Administrative Agent and the Lenders participating in such Facilities Increase
on such Facilities Increase Date, as applicable, all fees and expenses
(including reasonable fees and expenses of counsel) due and payable on or
before the Facilities Increase Date.
(c) Other Conditions. (i) The conditions precedent set forth
in Section 9.2 shall have been satisfied both before and after giving effect to
such Facilities Increase and (ii) such Facilities Increase shall be made on the
terms and conditions set forth in Section 3.1(b).
Article X
AFFIRMATIVE COVENANTS
The Company hereby agrees that, until the Payment Obligations
have been Fully Satisfied:
Section 10.1 Financial Statements. The Company will furnish
to each Lender, through the Administrative Agents:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Company and its Subsidiaries as at the end of such fiscal
year and the related consolidated statements of operations and stockholders'
equity and cash flows for such year, setting forth in each case in comparative
form (to the extent that such information has not previously been provided to
the Lenders in form substantially similar to that required pursuant to this
Section 10.1(a)) the figures for the previous year, certified without a "going
concern" or like qualification or exception, or qualification arising out of
the scope of the audit, by KPMG LLP or other independent certified public
accountants of nationally recognized standing reasonably acceptable to the
Administrative Agents;
(b) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Company, a copy of (i) the annual
business plan of the Company and its Subsidiaries for the next succeeding
fiscal year, including model quarterly balance sheets and statements of
operations and of cash flow, (ii) a two-year model (including, without
limitation, model annual balance sheets and statements of operations and of
cash flow) for the Company and its Subsidiaries and (iii) a two-year model
(including, without limitation, model annual balance sheets and statements of
operations and of cash flow) for Revlon and its Subsidiaries, and all of the
foregoing shall be in form and detail reasonably satisfactory to the
Administrative Agents and shall be certified by a Responsible Officer of the
Company; and
(c) as soon as available, but in any event within 45 days
after the end of each of the first three fiscal quarters of each fiscal year of
the Company, a copy of (i) the unaudited consolidated, condensed balance sheets
of the Company and its Subsidiaries as at the end of each such quarter, (ii)
the related unaudited consolidated, condensed statements of operations and of
cash flows for the portion of the fiscal year through such date and (iii) the
related unaudited consolidated, condensed statements of operations for such
quarterly period, setting forth in each case in comparative form (to the extent
that such information has not previously been provided to the Lenders in form
substantially similar to that required pursuant to this Section 10.1(c)) the
figures for the corresponding fiscal period of the previous year (other than
the balance sheets, which shall present such corresponding figures at the last
day of the previous fiscal year), certified (subject to normal year-end audit
adjustments) by a Responsible Officer of the Company;
all such financial statements to be prepared in reasonable detail and (except
as approved by such accountants or Responsible Officer, as the case may be, and
disclosed therein) in accordance with GAAP applied consistently throughout the
periods reflected therein (subject, in the case of interim periods, to normal
year-end adjustments and the absence of notes).
Section 10.2 Certificates; Other Information. The Company
will furnish to each Lender, through the Administrative Agents:
(a) concurrently with the delivery of its financial
statements referred to in Section 10.1(a), a certificate of the independent
certified public accountants certifying such financial statements, to the
extent available pursuant to the policies and procedures of such independent
certified public accountants, stating that in making the examination necessary
therefor, no knowledge was obtained of any Default or Event of Default with
respect to Section 11.1, except as specified in such certificate (which
certificate may be limited by applicable accounting rules or guidelines);
(b) concurrently with the delivery of its financial
statements referred to in Section 10.1(a) and (c), a certificate of a
Responsible Officer of the Company, substantially in the form of Exhibit M
(Form of Compliance Certificate);
(c) within five days after the same are sent, copies of all
financial statements and reports which the Company or any of its Subsidiaries
and any Parent of the Company sends to holders of its publicly traded debt or
equity securities, and within five days after the same are filed, copies of all
financial statements and reports (including copies of all registration
statements, proxy statements and regular and periodic reports, if any) which
any of such Persons may make to, or file with, the Securities and Exchange
Commission or any successor thereto;
(d) within 10 days following the last day of each fiscal
quarter of the Company (commencing with the fiscal quarter ended September 30,
2004), a schedule listing (i) all Subsidiaries of the Company as of the last
day of the fiscal quarter most recently ended, (ii) all Subsidiaries of the
Company which have been acquired or created during the fiscal quarter then
ended and (iii) all Persons which have ceased to be Subsidiaries of the Company
during such prior fiscal quarter of the Company;
(e) at least 10 days prior to the issuance thereof, a
certificate of a Responsible Officer of the Company as to the issuance of any
letter of credit permitted by Section 11.2(m), which certificate shall include
(i) the amount of such letter of credit (including, with respect to any such
letter of credit that is denominated in a currency other than Dollars, the
Equivalent in Dollars thereof), (ii) the stated expiry date thereof, (iii) the
issuer thereof and (iv) the beneficiary thereof;
(f) promptly after the delivery of the same to the M&FH
Lender, any request for a borrowing of a M&FH Loan; and
(g) promptly, such additional documents and financial and
other information (including, without limitation, amendments to the Certificate
of Incorporation and By-Laws of such Person) relating to REV Holdings and its
Subsidiaries (or, at any time when REV Holdings ceases to have any significant
Indebtedness, Revlon and its Subsidiaries) as any Agent, or any Lender acting
through the Administrative Agents, may from time to time reasonably request.
Section 10.3 Payment of Obligations. The Company will, and
will cause each of its Subsidiaries to, pay, discharge or otherwise satisfy at
or (to the extent not otherwise prohibited hereunder) before maturity or before
they become delinquent, as the case may be, all its Indebtedness and other
material obligations of whatever nature, except when the amount or validity
thereof is then being contested in good faith by appropriate proceedings and
reserves with respect thereto to the extent, if any, required by GAAP have been
provided on the books of the Company or such Subsidiary, as the case may be.
Notwithstanding anything to the contrary in the foregoing sentence, the Company
shall not be in default under this Section 10.3 unless the aggregate amount of
non-contested Indebtedness or obligations which it and its Subsidiaries have so
failed to pay, discharge or satisfy before they become delinquent and which
remain delinquent at the time of determination is more than $10,000,000 (or,
with respect to any other currency, the Equivalent thereof) in the aggregate.
Section 10.4 Conduct of Business and Maintenance of
Existence. Except as permitted by this Agreement, the Company will continue to
engage in business of the same general type as now conducted by it; and, except
as permitted by this Agreement, the Company will, and will cause each of its
Subsidiaries to, preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except as otherwise permitted pursuant to Sections 11.5 and 11.6, and
comply with all Contractual Obligations and Requirements of Law except to the
extent that all failures to comply therewith would not in the aggregate, be
reasonably likely to have a Material Adverse Effect. The Company will not make
any material change in its present method of conducting business. The Company
will cause each of its Subsidiaries to engage primarily in no business other
than the business of developing, manufacturing, distributing and/or selling
(including marketing and advertising) beauty, skin care, fragrance, personal
care and/or related products (or of holding properties incidental to such
businesses).
Section 10.5 Maintenance of Property; Insurance. The Company
will, and will cause each of its Subsidiaries to, (a) keep all property useful
and necessary in its business in good working order and condition, except where
the failure to do so would not, in the aggregate, be reasonably likely to have
a Material Adverse Effect and (b) maintain with financially sound and reputable
insurance companies insurance on such of its property and against such
liabilities in at least such amounts and against at least such risks as are
customarily insured against in the same general area by companies engaged in
the same or a similar business and furnish to the Agents, upon written request,
and to each Lender which makes a written request through the Administrative
Agents, reasonable information as to the insurance carried.
Section 10.6 Inspection of Property; Books and Records;
Discussions. The Company will, and will cause each of its Subsidiaries to, (a)
keep proper books of accounts and records in which entries in conformity in all
material respects with all Requirements of Law shall be made of all dealings
and transactions in relation to its businesses and activities and which shall
permit the preparation of financial statements in conformity with GAAP and (b)
permit representatives of any Administrative Agent or the Collateral Agent to
visit and inspect such of its properties during normal business hours as such
Administrative Agent or Collateral Agent reasonably may request and (during
such visit or inspection, or otherwise upon request by an Administrative Agent
or Collateral Agent) examine and make abstracts from such of its books and
records as it may reasonably request at any reasonable time and as often as may
reasonably be desired, and to discuss the business, condition (financial or
otherwise), performance, properties and prospects of the Company and its
Subsidiaries with officers and employees of the Company and its Subsidiaries
and with its then independent certified public accountants.
Section 10.7 Notices. The Company will promptly give notice
to the Administrative Agents and each Lender, through the Administrative
Agents:
(a) of the occurrence of any Default or Event of Default;
provided, however, that with respect to any Default or Event of Default arising
under Section 12(q), the Company will give notice thereof to the Administrative
Agents no later than the first Business Day after its becoming aware of the
occurrence of any Default or Event of Default thereunder;
(b) of any default or event of default by the Company or any
of its Subsidiaries under any Contractual Obligation of the Company or any of
its Subsidiaries or the institution of, or the occurrence of any material
adverse change, in the status or likely result of, any litigation,
investigation or proceeding which may exist at any time between the Company or
any of its Subsidiaries and any Governmental Authority or any other Person
which, in any of the foregoing cases, would be reasonably likely to have a
Material Adverse Effect;
(c) of any default or event of default by Revlon or (to its
actual knowledge) REV Holdings, Revlon Holdings, Mafco, M&FH, M&FG, RGI, Mafco
Guarantor Corp. or Revlon Finance Corporation under any agreements or other
instruments governing Indebtedness of such Person involving an aggregate amount
in excess of $5,000,000 (or, with respect to any other currency, the Equivalent
thereof);
(d) of (i) any violation or noncompliance by the Company or
any of its Subsidiaries or, to the best of its knowledge, any other Person of
any Environmental Laws which would be reasonably likely to have a Material
Adverse Effect or (ii) any liability or potential liability to the Company or
any of its Subsidiaries or, to the best of its knowledge, to any other Person
under, any Environmental Laws which would be reasonably likely to have a
Material Adverse Effect;
(e) of any of the following events, as soon as possible, and
in any event, within 30 days after the Company knows or has reason to know
thereof:
(i) the occurrence or expected occurrence of any Reportable
Event with respect to any Plan; or
(ii) the institution of proceedings or the taking or expected
taking of any other action by PBGC or the Company or any Commonly
Controlled Entity to terminate, withdraw or partially withdraw from
any Plan and with respect to a Multiemployer Plan, the Reorganization
or Insolvency of such Plan;
if such Reportable Event, termination, withdrawal or partial withdrawal (and,
in the case of any Multiemployer Plan, its Reorganization or Insolvency) would
be reasonably likely to result in liability to the Company and the Guarantors,
in the aggregate, in excess of $1,000,000;
(f) of a material adverse change in the business, condition
(financial or otherwise), operations, performance, properties or prospects of
the Company and its Subsidiaries taken as a whole, or of any event which would
be reasonably likely to materially adversely affect the ability of the Company
and its Subsidiaries taken as a whole to perform their obligations under the
Loan Documents; and
(g) of the consummation of any transaction permitted by
Section 11.8(e), and the consummation of any transaction contemplated by the
proviso in Section 7.3(e)(iii), which notices shall, in any event, be given
within five Business Days thereafter.
Each notice pursuant to this Section 10.7 shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company proposes to take with
respect thereto.
Section 10.8 Maintenance of Corporate Identity. The Company
will operate its businesses, and will cause its Subsidiaries to operate their
respective businesses, and maintain their records, independently from any
Person (a "Parent") which, directly or indirectly, is in control (as defined in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended) of the
Company and independently from any Subsidiary of such Parent other than the
Company and its Subsidiaries; and the Company will maintain bank accounts
separate from the bank accounts of each Parent of the Company and act solely in
its own corporate name and through its own authorized officers and agents.
Section 10.9 Environmental Laws. The Company will, and will
cause each of its Subsidiaries to:
(a) Comply with and require compliance by all tenants and
subtenants, if any, with all Environmental Laws and obtain and comply with and
maintain, and require that all tenants and subtenants obtain and comply with
and maintain, any and all licenses, approvals, registrations or permits
required by Environmental Laws except to the extent that the failure to do so
either individually or in the aggregate would not be reasonably likely to have
a Material Adverse Effect; and
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply with all orders and directives of
all Governmental Authorities respecting Environmental Laws, except (i) to the
extent that the failure to perform any obligations contained in this clause (b)
would not be reasonably likely to have a Material Adverse Effect or (ii) to the
extent that such obligations are being contested in good faith by appropriate
proceedings and provided that the pendency of any and all such proceedings
would not be reasonably expected to have a Material Adverse Effect.
Section 10.10 Additional Guaranties. The Company will from
time to time cause each Domestic Subsidiary thereof which has not previously
done so to execute and deliver to the Administrative Agents duly executed
supplements and amendments to the Guaranty, in each case, in form and substance
satisfactory to the Administrative Agents. In the event that there shall be a
change in law that eliminates the adverse tax consequences to the Company or
any of its Subsidiaries that would have resulted on the date hereof (so that
such consequences, if any, are immaterial) from the guaranty by any Foreign
Subsidiary of the Payment Obligations, the Company will cause each of its
Foreign Subsidiaries to execute and deliver to the Administrative Agents duly
executed supplements and amendments to the Guaranty, in each case, in form and
substance satisfactory to the Administrative Agents. Each such supplement or
amendment shall be accompanied by such resolutions, incumbency certificates and
legal opinions as are reasonably requested by the Administrative Agents and are
in form and substance reasonably satisfactory to the Administrative Agents.
Section 10.11 Additional Stock Pledges. (a) The Company will,
and will cause each of its Domestic Subsidiaries to, pledge to the Collateral
Agent 100% of the issued and outstanding Stock and Stock Equivalents (other
than directors' qualifying shares) of each Domestic Subsidiary of the Company
which has not previously been pledged hereunder. Such pledge shall be granted
pursuant to duly executed joinders and amendments to the Pledge and Security
Agreement and, if applicable, the other Security Documents, in each case in
form and substance reasonably satisfactory to the Administrative Agents.
(b) Except to the extent set forth in Section 10.16, the
Company will, and will cause each of the Subsidiary Guarantors to, pledge to
the Collateral Agent 66% (rounded downward to eliminate any fraction of a
share) of the issued and outstanding shares of each class of Stock and Stock
Equivalents entitled to vote (within the meaning of Treasury Regulation
Section 1.956-2(c)(2)) ("Voting Stock") and 100% of the issued and outstanding
shares of each class of Stock and Stock Equivalents not entitled to vote
(within the meaning of such regulation) ("Non-Voting Stock") of each
first-tier Foreign Subsidiary of the Company or such Subsidiary Guarantor
which (in each case) is owned of record by the Company or such Subsidiary
Guarantor and which has not previously been pledged hereunder; provided,
however, that in no event shall the Company and the Subsidiary Guarantors
pledge an aggregate amount of Voting Stock that exceeds 66% of the total
outstanding Voting Stock (taken as a whole) of any first-tier Foreign
Subsidiary of the Company or such Subsidiary Guarantor. Each such pledge shall
be granted pursuant to duly executed joinders and amendments to the Pledge and
Security Agreement and if applicable, the other Security Documents, in each
case, as (x) the Term Loan Administrative Agent deems necessary or advisable
in order to effectively grant a valid, perfected and enforceable security
interest in the Pledged Stock delivered thereto under the laws of the State of
New York and, if such issuer of Pledged Stock is organized under the laws of
the United Kingdom, Canada or Bermuda and, if requested by the Term Loan
Administrative Agent in its sole discretion exercised reasonably and in
accordance with customary business practices for comparable financing
transactions, such other jurisdiction in which the issuer of such Pledged
Stock is organized to the extent such jurisdiction constitutes, directly or
indirectly, one of the top five net revenue generating markets of the Company
and its Subsidiaries and (y) is in form and substance reasonably satisfactory
to the Term Loan Administrative Agent. Notwithstanding the foregoing, unless
either the Term Loan Administrative Agent or the Required Term Loan Lenders
shall at any time otherwise reasonably request, no such pledge shall be
required pursuant to this Section 10.11(b) with respect to the Stock and Stock
Equivalents of any first-tier Foreign Subsidiary listed on Schedule 8.13 which
is not pledged on the Closing Date or is acquired or formed after the date
hereof and either (A) is listed on Schedule 8.13 as being slated for
liquidation, dissolution or merger or (B) does not have assets in excess of
$5,000,000 (or, with respect to any other currency, the Equivalent thereof).
(c) Each joinder and amendment to the Pledge and Security
Agreement and the other Security Documents required to be executed and
delivered pursuant to this Section 10.11 shall be promptly executed and
delivered after the organization, acquisition or identification of any such
Subsidiary Guarantor or first-tier Foreign Subsidiary and shall be accompanied
by share certificates evidencing the Pledged Stock thereunder (to the extent
that such Pledged Stock is certificated), together with an undated stock power
for each such share certificate (duly executed in blank and delivered by a duly
authorized officer of the pledgor of the Pledged Stock represented by such
certificate). Each joinder and amendment to the Pledge and Security Agreement
and the other Security Documents executed and delivered pursuant to this
Section 10.11 shall be accompanied by (i) in the case of the pledge of Stock or
Stock Equivalents of any Foreign Subsidiary, evidence of the taking of all such
other actions as may be necessary or appropriate for the perfection and first
priority of such pledge, and (ii) in the case of any Subsidiary, such
resolutions, incumbency certificates and legal opinions as are reasonably
requested by the Administrative Agents and shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agents.
(d) In the event that there shall be a change in law that
eliminates the adverse tax consequences to the Company or any of its
Subsidiaries that would have resulted on the date hereof (so that such
consequences, if any, are immaterial) from the pledge of 66-2/3% or more of the
Voting Stock of any Foreign Subsidiary, the Company will, and will cause each
of its Subsidiaries to, (i) pledge such additional amount of shares of such
Voting Stock (with respect to each Foreign Subsidiary the Voting Stock of which
then is pledged hereunder) and (ii) notwithstanding the provisions of Section
10.11(b), pledge the maximum amount of shares of such Voting Stock (with
respect to each Foreign Subsidiary the Voting Stock of which is pledged
thereafter), in each case which can be so pledged without the incurrence of
adverse tax consequences and take or cause to be taken such further action as
the Administrative Agents may reasonably request (including, without
limitation, the delivery of legal opinions) in order to perfect its security
interest in such stock.
Section 10.12 Additional Collateral. The Company will cause
each of its Subsidiary Guarantors which has not previously done so to execute
and deliver to the Administrative Agents duly executed joinders and amendments
to the Pledge and Security Agreement and, if applicable, the other Security
Documents, in each case, in form and substance reasonably satisfactory to the
Administrative Agents, and to take such other action as reasonably shall be
necessary or as the Administrative Agents reasonably shall request to grant to
the Collateral Agent a valid and enforceable first priority perfected security
interest in all Collateral of such Subsidiary Guarantor (subject to any Liens
permitted by Section 11.3). Each such joinder and amendment shall be
accompanied by such evidence of the taking of all actions as may be necessary
or appropriate for the perfection and first priority of such security interest
(including, without limitation, the filing of any necessary Uniform Commercial
Code financing statements) and such resolutions, incumbency certificates and
legal opinions as are reasonably requested by the Administrative Agents, all of
which shall be in form and substance reasonably satisfactory to the
Administrative Agents.
Section 10.13 Asset Transfers. (a) Each of the Company and the Subsidiary
Guarantors will grant to the Collateral Agent a first priority, perfected
security interest (subject to any Liens thereon which are permitted to encumber
the relevant asset pursuant to Section 11.3) in all properties and assets
(whether tangible or intangible) of a type that constitutes Collateral under
any Security Document to which the Company or any Subsidiary Guarantor is a
party which are sold, transferred, conveyed or otherwise distributed to the
Company or any such Subsidiary Guarantor (including, without limitation, by way
of merger or consolidation) from any Subsidiary of the Company simultaneously
with the effectiveness of such sale, transfer, conveyance or other
distribution.
(b) The Company and each Subsidiary Guarantor will take such
action from time to time as is necessary (or otherwise reasonably requested by
the Administrative Agents) to ensure that the Collateral Agent at all times
holds a perfected security interest in all Collateral under the Security
Documents, except as otherwise permitted hereunder.
Section 10.14 Intellectual Property. (a) The Company will,
and will cause each of the Subsidiary Guarantors to, take such action as is
necessary (or as otherwise is reasonably requested by the Term Loan
Administrative Agent) in order to grant to the Collateral Agent a first
priority, perfected security interest in any copyright registration in which
the Company or any of the Subsidiary Guarantors may from time to time obtain
any interest. The Company will submit, and will cause each Subsidiary Guarantor
to submit, to the Administrative Agents, by each January 31st and July 31st of
each year following the Closing Date, commencing January 31, 2005 (or, if the
Term Loan Administrative Agent reasonably so requests in writing, more often;
provided, however, that, except during such time as a Default or Event of
Default has occurred and is continuing, the Term Loan Administrative Agent
shall not so request more frequently than monthly), a Copyright Security
Agreement (substantially in the form attached to the Pledge and Security
Agreement or such other form reasonably acceptable to the Term Loan
Administrative Agent) confirming the security interest of the Collateral Agent
in any Copyright acquired or with respect to which the Company or any
Subsidiary Guarantor filed an application for copyright registration during the
two prior calendar quarters, duly executed and in proper form for recordation
in the United States Copyright Office.
(b) The Company will, to the extent permitted by Title 15 of
the United States Code, submit, and will cause each Subsidiary Guarantor to
submit, to the United States Patent and Trademark Office for registration or
recordation, as applicable:
(i) a completed application for trademark registration, in
such class or classes as is in conformity with its ordinary business
practice then in effect, of each Trademark acquired or adopted and
used or intended to be used by it, with respect to any mark which, in
the Company's reasonable judgment, is a Significant Trademark;
provided, however, that within 30 days after receipt of notice from
the Term Loan Administrative Agent, the Company shall, or shall cause
the applicable Subsidiary Guarantor to, submit to the United States
Patent and Trademark Office for registration a completed application
for trademark registration, in such class or classes as is in
conformity with its ordinary business practice then in effect, of any
Trademark acquired or adopted and used or intended to be used by it,
with respect to any mark which the Required Term Loan Lenders
reasonably deem to be of such significance as to require the Company
or such Subsidiary Guarantor to take such steps as may be necessary or
desirable to grant to the Collateral Agent a perfected, first priority
security interest in such Trademark to the extent that it has any
ownership interest in such Trademark which is registerable by it under
trademark or other applicable law; and
(ii) with respect to any interest acquired after the date
hereof by the Company or any of its Subsidiaries in a Significant
Trademark, any appropriate assignment to the Company or such
Subsidiary Guarantor of the interest acquired by it in the United
States in such Significant Trademark, including, without limitation,
all previously unrecorded assignments to the Company's or such
Subsidiary Guarantor's predecessors-in-interest of which the Company
or any Subsidiary Guarantor is or becomes aware.
The Company will, and will cause each Subsidiary Guarantor to, use its
respective commercially reasonable best efforts to comply with all requirements
of the Lanham Act and the rules and regulations thereunder, as from time to
time in effect, or other applicable law necessary in order to validly register
and maintain the registration of any such Significant Trademark with the United
States Patent and Trademark Office, except as permitted pursuant to Sections
10.4, 11.5 and 11.6 hereof. The Company will submit, and will cause each
Subsidiary Guarantor to submit, to the Administrative Agents, by each January
31st and July 31st of each year following the Closing Date, commencing January
31, 2005 (or, if the Term Loan Administrative Agent reasonably so requests in
writing, more often; provided, however, that, except during such time as a
Default or Event of Default has occurred and is continuing, the Term Loan
Administrative Agent shall not so request more frequently than monthly), a
Trademark Security Agreement (substantially in the form attached to the Pledge
and Security Agreement or such other form reasonably acceptable to the Term
Loan Administrative Agent) confirming the security interest of the Collateral
Agent in any Trademark acquired or with respect to which the Company or any
Subsidiary Guarantor filed an application for trademark registration during the
two prior calendar quarters, duly executed and in proper form for recordation
in the United States Patent and Trademark Office.
(c) The Company will, to the extent permitted by Title 35 of
the United States Code, submit, and will cause each Subsidiary Guarantor to
submit, to the United States Patent and Trademark Office for issuance or
recordation, as applicable:
(i) an application for letters patent for each patentable
invention acquired by or invented by or for it which invention is of
such a nature that the Company or its Subsidiaries, in accordance with
its ordinary business practice then in effect, would file a patent
application in the United States Patent and Trademark Office with
respect to it; and
(ii) with respect to any interest acquired after the date
hereof by the Company or any of its Subsidiaries in a Patent, any
appropriate assignment to the Company or such Domestic Subsidiary of
the interest acquired by it in the United States in such Patent,
including, without limitation, all previously unrecorded assignments
to the Company's or such Domestic Subsidiary's predecessors-in-interest
of which the Company or any Subsidiary Guarantor is or becomes aware.
The Company will, and will cause each Subsidiary Guarantor to, use its
respective commercially reasonable best efforts to comply with all requirements
of the United States Patent Act and the rules and regulations thereunder, as
from time to time in effect, or other applicable law necessary in order to
validly obtain and maintain any Patent with the United States Patent and
Trademark Office, except as permitted pursuant to Sections 10.4, 11.5 and 11.6
hereof. The Company will submit, and will cause each Subsidiary Guarantor to
submit, to the Administrative Agents, by each January 31st and July 31st of
each year following the Closing Date, commencing January 31, 2005 (or, if the
Administrative Agents reasonably so requests in writing, more often; provided,
however, that, except during such time as a Default or Event of Default has
occurred and is continuing, the Administrative Agents shall not so request more
frequently than monthly), a Patent Security Agreement (substantially in the
form attached to the Pledge and Security Agreement or such other form
reasonably acceptable to the Term Loan Administrative Agent) confirming the
security interest of the Collateral Agent in any Patent acquired or with
respect to which the Company or any Subsidiary Guarantor filed an application
for letters patent during the two prior calendar quarters, duly executed and in
proper form for recordation in the United States Patent and Trademark Office.
(d) Notwithstanding anything to the contrary contained in
this Section 10.14, the Company and its Subsidiaries shall have the right to
license their respective Patents and Trademarks to third parties on an arms'
length basis; provided, however, that, except with respect to Trademarks and
Patents which constitute Disposition Assets or with respect to which the only
substantial use by the Company and its Subsidiaries is in connection with a
business constituting a Disposition Asset, that any such license of (i) a
Trademark shall be for use with respect to products which are not reasonably
likely to be competitive with those produced and/or marketed by the Company and
its Subsidiaries and (ii) a Patent shall be for applications which would not be
reasonably likely to diminish the value of any product line of the Company and
its Subsidiaries, except for, in the case of each of clause (i) and (ii),
licenses or cross-licenses granted by the Company or any such Subsidiary in
connection with the settlement or other disposition of litigation or other
disputes with respect to Patents or Trademarks, provided, however, that such
licenses or cross-licenses shall be granted (x) in the reasonable business
judgment of the Company or any such Subsidiary, or (y) as may be required by
any Governmental Authority having jurisdiction over any such litigation or
dispute. Each Administrative Agent and each Lender hereby acknowledges and
agrees that any security interest held by the Collateral Agent in any Patent or
Trademark which is licensed in accordance with the provisions of this Section
10.14(d) shall be subordinate to such license agreement and each Lender hereby
instructs the Administrative Agents to execute and deliver such instruments,
documents and agreements as the Company reasonably may request in order to
confirm such subordination.
Section 10.15 Additional Mortgages. With respect to any fee
interest in any real property located in the United States having a value
(together with improvements thereon) of at least $7,500,000 acquired after the
Closing Date by the Company or any of its Domestic Subsidiaries, the Company or
such Subsidiary shall promptly (and in any event within 45 days after (x) the
acquisition thereof or (y) in the case of costs and expenses referred to in
clause (c) below, the receipt of an invoice in respect thereof) (a) execute and
deliver a first-priority and a second-priority Mortgage, in favor of the
Collateral Agent, for the benefit of the holders of the Secured Obligations,
covering such real property (subject to Customary Permitted Liens and other
Liens approved by the Multi-Currency Administrative Agent), (b) if requested by
the Multi-Currency Administrative Agent, provide all Mortgage Supporting
Documents relating thereto and (c) pay all costs and expenses associated with
the foregoing.
Section 10.16 Post-Closing Matters. The Company shall, and
shall cause each of its Subsidiaries to, deliver each of the documents,
instruments and agreements set forth on Schedule 10.16 within the time periods
set forth on such Schedule.
Section 10.17 Borrowing Base Determination. (a) The Company
may deliver from time to time a Borrowing Base Certificate, but in any event
shall deliver a Borrowing Base Certificate (i) as soon as available but in any
event not later than 15 days after the end of each fiscal month and (ii)
during a Liquidity Event Period or if an Event of Default has occurred and is
continuing, not later than 5 days after the end the last day of each week
(containing available updated figures for Eligible Receivables but not, unless
otherwise available, Eligible Inventory), in each case, executed by a
Responsible Officer of the Company.
(b) The Company may and, upon request of the Multi-Currency
Administrative Agent, shall conduct, or cause to be conducted, at its expense,
and present to the Multi-Currency Administrative Agent for approval, such
Appraisals, investigations and reviews as the Multi-Currency Administrative
Agent shall request for the purpose of determining the Borrowing Base, all upon
reasonable notice and at such times during normal business hours and as often
as may be reasonably requested; provided, however, that unless a Default or
Event of Default shall be continuing, the Multi-Currency Administrative Agent
shall request no more than four such Appraisals, investigations and reviews
during any calendar year. The Company shall furnish to the Multi-Currency
Administrative Agent any information that the Multi-Currency Administrative
Agent may reasonably request regarding the determination and calculation of the
Borrowing Base including correct and complete copies of any invoices,
underlying agreements, instruments or other documents and the identity of all
Account Debtors in respect of the Accounts referred to therein.
(c) The Company shall promptly notify the Multi-Currency
Administrative Agent in writing in the event that at any time the Company
receives or otherwise gains knowledge that (i) the Borrowing Base is less than
90% of the Borrowing Base reflected in the most recent Borrowing Base
Certificate delivered pursuant to clause (a) above, (ii) the outstanding
Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum
Multi-Currency Availability as a result of a decrease therein, in which case
such notice shall also include the amount of such excess or (iii) a Liquidity
Event Period has begun.
(d) The Multi-Currency Administrative Agent may, at the
Company's sole cost and expense, make test verifications of the Accounts and
physical verifications of the Inventory in any manner and through any medium
that the Multi-Currency Administrative Agent reasonably considers advisable,
and the Company shall furnish all such assistance and information as the
Multi-Currency Administrative Agent may reasonably require in connection
therewith; provided, however, that unless a Default or Event of Default shall
be continuing, the Multi-Currency Administrative Agent shall request no more
than four such verifications during any calendar year. At any time and from
time to time, upon the Multi-Currency Administrative Agent's request and at the
expense of the Company, the Company shall cause independent public accountants
or others reasonably satisfactory to the Multi-Currency Administrative Agent to
furnish to the Multi-Currency Administrative Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
Accounts; provided, further, that unless a Default or Event of Default shall be
continuing, (i) the Multi-Currency Administrative Agent shall request no more
than four such reports during any calendar year and (ii) the Multi-Currency
Administrative Agent shall request reports showing reconciliations only at the
end of a fiscal quarter.
Section 10.18 Tax Reporting. Promptly after the Company
determines that it intends to treat the Loans and the Letters of Credit and
the related transactions contemplated hereby as a "reportable transaction"
(within the meaning of Treasury Regulation Section 1.6011-4), the Company
shall give the Administrative Agents written notice thereof and shall deliver
to the Administrative Agents all U.S. Internal Revenue Service forms required
in connection therewith.
Section 10.19 Control Accounts; Approved Deposit Accounts.
(a) The Company shall, and shall cause each of the Subsidiary
Guarantors to, except cash or Cash Equivalents subject to a Lien permitted
under Section 11.3(c), (d), (p) or (q), (i) deposit in an Approved Deposit
Account all cash and all Proceeds of any Account or General Intangible they
receive from any other Person, (ii) not maintain any funds or other assets in
any Securities Account that is not a Control Account and (iii) not establish or
maintain any Deposit Account other than with a Deposit Account Bank; provided,
however, that the Company and each of its Subsidiaries may deposit cash into
and maintain (A) payroll, benefits, withholding tax, escrow, customs and other
fiduciary accounts and (B) other accounts as long as the aggregate balance in
all such other accounts does not exceed $5,000,000 at any time.
(b) The Company shall, and shall cause each of the Subsidiary
Guarantors, to instruct (or, with respect to General Intangibles, use
commercially reasonable efforts to instruct) each Account Debtor with a
principal place of business located in the jurisdictions permitted in clause
(f) of the definition of "Eligible Receivables" obligated to make a payment to
any of them under any Account or General Intangible to make payment, or to
continue to make payment, to an Approved Deposit Account.
(c) In the event (i) the Company, any Subsidiary Guarantor or
any Deposit Account Bank shall, after the date hereof, terminate an agreement
with respect to the maintenance of an Approved Deposit Account for any reason,
(ii) the Multi-Currency Administrative Agent shall demand such termination as a
result of the failure of a Deposit Account Bank to comply in any material
respect with the terms of the applicable Deposit Account Control Agreement or
(iii) the Multi-Currency Administrative Agent determines in its sole discretion
exercised reasonably that the financial condition of a Deposit Account Bank has
materially deteriorated, the Company shall, and shall cause each Subsidiary
Guarantor to, notify all of their respective obligors that were making payments
to such terminated Approved Deposit Account to make all future payments to
another Approved Deposit Account.
(d) In the event (i) the Company, any Subsidiary Guarantor or
any Approved Securities Intermediary shall, after the date hereof, terminate an
agreement with respect to the maintenance of a Control Account for any reason,
(ii) the Multi-Currency Administrative Agent shall demand such termination as a
result of the failure of an Approved Securities Intermediary to comply with the
terms of the applicable Securities Account Control Agreement or (iii) the
Multi-Currency Administrative Agent determines in its sole discretion exercised
reasonably that the financial condition of an Approved Securities Intermediary
has materially deteriorated, the Company shall, and shall cause each Subsidiary
Guarantor to, notify all of its obligors that were making payments to such
terminated Control Account to make all future payments to another Control
Account.
(e) Any Administrative Agent may establish one or more Cash
Collateral Accounts with such depositaries and Securities Intermediaries as it
in its sole discretion shall determine to the extent expressly contemplated in
any Loan Document and shall (or direct the Collateral Agent to) apply the all
funds on deposit in such Cash Collateral Account as so contemplated. Funds on
deposit in any Cash Collateral Account may be invested (but the applicable
Administrative Agent shall be under no obligation to make any such investment)
in Cash Equivalents at the direction of the applicable Administrative Agent
and, except during a Liquidity Event Period or the continuance of an Event of
Default, the applicable Administrative Agent agrees with the Company to direct
the Collateral Agent to issue Entitlement Orders for such investments in Cash
Equivalents as requested by the Company; provided, however, that neither any
Administrative Agent nor the Collateral Agent shall have any responsibility
for, or bear any risk of loss of, any such investment or income thereon.
Section 10.20 Landlord Waiver and Bailee's Letters
The Company shall, and shall cause each of the Subsidiary
Guarantors to, use commercially reasonable best efforts to deliver Landlord
Waivers and Bailee's Letters pursuant to Section 10.16 and as the
Multi-Currency Administrative Agent shall request from time to time in its sole
discretion exercised reasonably and in accordance with customary business
practices for comparable asset-based transactions.
Article XI
NEGATIVE COVENANTS
The Company hereby agrees that, until the Payment Obligations
are Fully Satisfied:
Section 11.1 Financial Covenants. The Company will not:
(a) Senior Secured Leverage Ratio. Permit the Senior Secured
Leverage Ratio of the Company and its Subsidiaries for the period of four
consecutive fiscal quarters of the Company ending during any period set forth
below to be more than the amount set forth opposite such period:
Senior Secured
Period Leverage Ratio
------ --------------
December 31, 2004 through 5.50 to 1.00
September 30, 2005
December 31, 2005 through 5.00 to 1.00
December 31, 2006
March 31, 2007 and each 4.50 to 1.00
fiscal quarter thereafter
(b) Consolidated Fixed Charge Coverage Ratio. Until all
Payment Obligations arising under the Multi-Currency Facility have been Fully
Satisfied, without the consent of the Required Multi-Currency Lenders, in the
event a Liquidity Event Period has continued for at least 30 consecutive days,
permit the Consolidated Fixed Charge Coverage Ratio of the Company and its
Subsidiaries for any period of four consecutive fiscal quarters of the Company
ending on the last day of the most recent fiscal quarter ending prior to or
during such Liquidity Event Period to be less than 1.00 to 1.00.
Section 11.2 Indebtedness. The Company will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except for:
(a) Indebtedness in respect of the Payment Obligations;
(b) Indebtedness under the 8-1/8% Senior Notes Indenture, the
9% Senior Notes Indenture and the Subordinated Notes Indenture; and any
Indebtedness resulting from the refinancing of any such Indebtedness, or the
refinancing of any of the Term Loans in whole or in part (subject to the
payment of any applicable Prepayment Fee); provided, however, that (i) the
primary obligor with respect to any such refinancing Indebtedness is the same
as the primary obligor on the Indebtedness refinanced thereby and any
contingent obligor of such refinancing Indebtedness was or would have been
required to be a contingent obligor of the Indebtedness refinanced thereby
(except to the extent that such primary obligor and/or contingent obligor may
be substituted by a new primary obligor or contingent obligor, as the case may
be, which has no material assets other than assets which, immediately prior to
such substitution, constituted the assets of the original primary obligor
and/or contingent obligor), (ii) the principal amount of any such refinancing
Indebtedness (as determined as of the date of the incurrence of such
refinancing Indebtedness in accordance with GAAP) does not exceed the principal
amount of the Indebtedness refinanced thereby together with any premium
actually paid thereon and reasonable costs and expenses (including underwriting
discounts) incurred in connection with such refinancing Indebtedness, (iii) the
interest rate applicable to such refinancing Indebtedness shall not be less
favorable to the obligor than it would obtain in an arm's length transaction
with a Person that is not an Affiliate thereof and shall reflect the prevailing
market conditions at the time of such refinancing, (iv) such refinancing
Indebtedness does not have any scheduled installments of principal thereof due
prior to the date that is six months after the Term Loan Maturity Date, (v)
with respect to each issue of refinancing Indebtedness in excess of $5,000,000
(or, with respect to any other currency, the Equivalent thereof) in the
aggregate, either (A) the covenants, defaults and similar provisions applicable
to such refinancing Indebtedness or obligations are no more restrictive, taken
as a whole, than the provisions contained in and otherwise consistent with
market terms of agreements governing Indebtedness of similar companies in the
high yield market at the time of such refinancing and do not conflict with the
provisions of this Agreement or (B) such refinancing Indebtedness is otherwise
upon terms and subject to definitive documentation which is in form and
substance reasonably satisfactory to the Administrative Agents, and (vi) if the
Indebtedness being refinanced is Indebtedness under the Subordinated Notes
Indenture, such refinancing Indebtedness shall be subordinated to the Payment
Obligations on terms that are reasonably satisfactory to the Administrative
Agents (it being understood that subordination terms substantially similar to
those applicable to the Subordinated Notes are deemed to be satisfactory);
(c) Indebtedness (i) of the Company owing to any of its
wholly-owned Subsidiaries, (ii) of any wholly-owned Subsidiary of the Company
owing to any other wholly-owned Subsidiary of the Company and (iii) of any
wholly-owned Subsidiary of the Company owing to the Company; provided, however,
in each case, that the aggregate principal amount of such Indebtedness of any
Subsidiary that is not a Guarantor incurred after the date hereof shall be
subject to Section 11.8(j);
(d) Indebtedness of any Foreign Subsidiary or any foreign
branch of a Domestic Subsidiary principally doing business outside of the
United States (including, without limitation, Indebtedness on account of
letters of credit not issued under this Agreement) incurred for working capital
purposes (and, without duplication, any Contingent Obligation of the Company in
respect thereof) in an aggregate principal amount at any time outstanding not
exceeding for the Foreign Subsidiaries and foreign branches of Domestic
Subsidiaries in the aggregate $30,000,000 (or, with respect to any other
currency, the Equivalent in Dollars thereof); provided, however, that for
purposes of this Section 11.2(d), such aggregate principal amount shall not
include (x) an amount equal to the aggregate principal amount of Indebtedness
of the Foreign Subsidiaries and foreign branches of Domestic Subsidiaries to
any bank which is offset by compensating balances at such bank (which
Indebtedness shall be permitted hereunder) and (y) Indebtedness otherwise
permitted by this Section 11.2;
(e) Indebtedness of the Company to Affiliates in respect of
Capital Contribution Notes which evidence cash amounts actually received by the
Company from such Affiliates on account of Capital Contributions;
(f) Indebtedness to employees or former employees of the
Company or any of its Subsidiaries in the nature of deferred compensation;
(g) Indebtedness of the Company and its Subsidiaries under
Interest Rate Agreements which are in existence on the date hereof, and other
Indebtedness of the Company and its Subsidiaries under Interest Rate
Agreements, which (i) have a tenor which is not in excess of six years, (ii)
are not leveraged, (iii) are in an aggregate notional amount (net of any
offsetting economic positions among such Interest Rate Agreements) not to
exceed $300,000,000 at any one time outstanding (including, without limitation,
all Interest Rate Agreements in effect on the date hereof) and (iv) have the
sole purpose of hedging interest rate exposure of the Company and its
Subsidiaries;
(h) Hedging Contracts of the Company and its Subsidiaries
entered into in the ordinary course of business of the Company and its
Subsidiaries for the purpose of providing foreign exchange for their respective
operating requirements or of hedging currency exposure;
(i) unsecured Indebtedness of the Company to an M&FH Lender
in an aggregate amount not to exceed $152,000,000 at any one time outstanding
(as may be increased due to the accrual and capitalization of interest) (the
"Permitted M&FH Loan Amount"), consisting of Indebtedness (i) in respect of the
M&FH 2004 Multiple-Draw Term Loan, (ii) in respect of the M&FH Supplemental
Line of Credit and (iii) any refinancing or replacement of any such
Indebtedness (whether upon repayment of such Indebtedness or at any time
thereafter) on terms and conditions (taken as whole) that are no less favorable
to the Company or the Lenders than the terms and conditions of the M&FH Loans
as in effect on the Closing Date (taken as a whole); provided, however, that
such Indebtedness may be refinanced or replaced by any Person other than an
M&FH Lender (or any Affiliate thereof) to the extent (A) the final maturity
date for such refinancing Indebtedness shall be at least 90 days after the Term
Loan Maturity Date, (B) the aggregate principal amount of any Indebtedness
permitted under this clause (i) shall not exceed Permitted M&FH Loan Amount and
(C) the covenants, defaults and similar provisions applicable to such
refinancing Indebtedness or obligations are no more restrictive, taken as a
whole, than the provisions contained in and otherwise consistent with market
terms of agreements governing Indebtedness of similar companies in the high
yield market at the time of such refinancing and do not conflict with the
provisions of this Agreement;
(j) Indebtedness of the Company or any of its Subsidiaries in
the nature of guarantees as referred to in clause (k) of the definition of
"Indebtedness" in Section 1.1 which is permitted by Section 11.3(m);
(k) Indebtedness of any Foreign Subsidiary or a foreign
branch of a Domestic Subsidiary principally doing business outside of the
United States to any Person (other than an Affiliate of the Company), in an
aggregate principal amount at any one time outstanding not to exceed
$50,000,000 (or with respect to any other currency, the Equivalent in Dollars
thereof); provided, however, that, such Indebtedness (i) is not guaranteed by
the Company (except to the extent that the Lien permitted by Section 11.3(m),
in itself, constitutes a guarantee) and (ii) is either offset or secured by a
counterpart deposit, compensating balance or a pledge of cash deposit;
provided, further, that such counterpart deposit, compensating balance or cash
deposit pledge does not constitute Collateral (as defined in any Security
Document) or any of the Unpledged International Property;
(l) Capital Lease Obligations and purchase money Indebtedness
of the Company or any of its Subsidiaries to finance the acquisition of capital
assets; provided, however, that the Dollar Equivalent of the aggregate
outstanding principal amount of all such Capital Lease Obligations and purchase
money Indebtedness shall not exceed $35,000,000 at any time;
(m) Indebtedness to any Person (other than an Affiliate of
the Company) in respect of the undrawn portion of the face amount of or unpaid
reimbursement obligations in respect of letters of credit not issued under this
Agreement for the account of the Company or any of its Subsidiaries in an
aggregate amount at any one time outstanding not to exceed $30,000,000 (or with
respect to any other currency, the Equivalent in Dollars thereof); provided,
however, that such Indebtedness is offset or secured by a counterpart deposit,
compensating balance or a pledge of cash deposits;
(n) Indebtedness of the Company under the Designated Senior
Secured Indenture so long as such Indebtedness is repurchased or redeemed on or
prior to the date that is 60 days after the Closing Date;
(o) additional Indebtedness in an aggregate principal amount
not to exceed $100,000,000 at any one time outstanding; provided, however, that
such Indebtedness shall be unsecured at all times during the term of this
Agreement;
provided, however, that in no event may the Company or any of its Subsidiaries
incur any Indebtedness to REV Holdings or RPH.
Section 11.3 Limitation on Liens. The Company will not, and
will not permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any of their properties, assets (including shares of stock)
or revenues, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or any of its Subsidiaries,
as the case may be, in accordance with GAAP;
(b) carriers', warehousemens', mechanics', materialmens',
repairmens' or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 45 days or which are being
contested in good faith and by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
provided, however, that no such Lien shall encumber any Collateral (other than
cash or Cash Equivalents) under any of the Security Documents or any of the
Unpledged International Property;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business, provided, however, that no
such Lien shall encumber any Collateral (other than cash or Cash Equivalents)
under any of the Security Documents or any of the Unpledged International
Property;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Company or any of its
Subsidiaries;
(f) Liens in favor of the United States of America for
amounts paid by the Company or any of its Subsidiaries as progress payments
under government contracts entered into by them; provided, however, that no
such Lien shall encumber any Collateral under any of the Security Documents or
any of the Unpledged International Property;
(g) Liens existing on the date of this Agreement which are
disclosed in the title insurance policies delivered pursuant to Section 9.1(d)
or Schedule 11.3;
(h) Liens under the Security Documents (including, without
limitation, Liens which secure Designated Eligible Obligations as provided for
in the Intercreditor Agreement) or any other Lien securing all or any portion
of the Payment Obligations;
(i) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings; provided, however, that the
same are discharged, or that execution or enforcement thereof is stayed pending
appeal, within 30 days or (in the case of any execution or enforcement pending
appeal) such lesser time during which such appeal may be taken;
(j) other Liens incidental to the conduct of the business of
the Company and its Subsidiaries or the ownership of any of their assets not
incurred in connection with Indebtedness or Contingent Obligations, which Liens
do not in any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Company
or any of its Subsidiaries; provided, however, that no such Lien shall encumber
any Collateral under any Security Document or any of the Unpledged
International Property;
(k) Liens securing any Indebtedness permitted by Section
11.2(d) or any Liens replacing such permitted Liens; provided, however, that
(i) no such Lien shall encumber any asset of the Company or any of its
Subsidiaries organized under the laws of a jurisdiction within the United
States or any Collateral under any Security Document or any of the Unpledged
International Property and (ii) any such Lien which secures reimbursement
obligations under letters of credit not issued under this Agreement shall be
limited to (A) the assets acquired or shipped with the support of such letter
of credit and (B) any assets of a Foreign Subsidiary which are in the care,
custody or control of such issuer of such letter of credit in the ordinary
course of business;
(l) Liens securing any Indebtedness permitted by Section
11.2(g), Section 11.2(h) or obligations of any Foreign Subsidiary or a foreign
branch of any Domestic Subsidairy principally doing business outside of the
United States in respect of treasury, depository, overdraft and other cash
management arrangements maintained with any Lender, any Affiliate of a Lender
or any other Person reasonably acceptable to the Administrative Agents or any
Liens replacing such permitted Liens; provided, however, that no such Lien
shall encumber any asset of the Company or any of its Subsidiaries organized
under the laws of a jurisdiction within the United States or any Collateral
under any Security Document or any of the Unpledged International Property;
(m) Liens in the nature of counterpart deposits or pledges of
cash deposits of the Company or any of its Subsidiaries to secure Indebtedness
of Foreign Subsidiaries of the Company or a foreign branch of a Domestic
Subsidiary principally doing business outside of the United States, which
Indebtedness is permitted pursuant to Section 11.2(k)); provided, however, that
no such Lien shall encumber any Collateral under any of the Security Documents
or any of the Unpledged International Property;
(n) possessory Liens in favor of securities intermediaries,
commodity intermediaries, brokers and dealers arising in connection with the
acquisition or disposition of investments of the type permitted by Section
11.8; provided, however, that such Liens (i) attach only to such investments
and (ii) secure only obligations incurred in the ordinary course and arising in
connection with the acquisition or disposition of such investments and not any
obligation in connection with margin financing; and provided, further, that
such Liens attach only to the property of the Company or its Subsidiary, as the
case may be, for whose account any such obligations have been incurred;
(o) purchase money Liens granted by the Company or any of its
Subsidiaries (including the interest of a lessor under a Capital Lease and
purchase money Liens to which any property is subject at the time, on or after
the date hereof, of the Company's or such Subsidiary's acquisition thereof)
securing Indebtedness permitted under Section 11.2(l) and limited in each case
to the property purchased with the proceeds of such purchase money Indebtedness
or subject to such Capital Lease (or proceeds thereof or additional property in
the nature of improvements thereto);
(p) Liens in the nature of counterpart deposits or pledges of
cash deposits of the Company or any of its Subsidiaries to secure Indebtedness
permitted pursuant to Section 11.2(m); provided, however, that the amount of
any such deposit does not exceed the amount of the Indebtedness it secures; and
(q) additional Liens incurred in the ordinary course of
business of the Company and its Subsidiaries securing Indebtedness or other
obligations of the Company and/or any of its Subsidiaries (other than such
Indebtedness or other obligation owing to an Affiliate of the Company) not to
exceed $10,000,000 (or, with respect to any other currency, the Equivalent
thereof) in the aggregate at any one time outstanding; provided, however, that
no such Lien shall encumber any Collateral (other than cash or Cash
Equivalents) under any of the Security Documents or any of the Unpledged
International Property.
Section 11.4 Limitation on Contingent Obligations. The
Company will not, and will not permit any of its Subsidiaries to, agree to, or
assume or incur, or otherwise in any way be or become responsible or liable,
directly or indirectly, with respect to, any Contingent Obligation, except for:
(a) the Guaranty;
(b) Contingent Obligations set forth on Schedule 11.4;
(c) any Contingent Obligation of the Company in the nature of
a guarantee in the ordinary course of business of any Indebtedness or other
obligations of any of its Subsidiaries permitted under this Agreement;
(d) any Contingent Obligation of any Subsidiary of the
Company in the nature of a guarantee in the ordinary course of business of any
Indebtedness or other obligations of any of the Subsidiaries of such Subsidiary
permitted under this Agreement;
(e) any Contingent Obligation of any Subsidiary of the
Company in the nature of a guarantee in the ordinary course of business of
Indebtedness (other than the Subordinated Notes, the Designated Senior Secured
Notes or any Indebtedness referred to in Section 11.2(b)) or other obligations
of the Company or any other Subsidiary of the Company;
(f) any Contingent Obligation of the Company or any of its
Subsidiaries in the nature of a guarantee of Indebtedness of any Permitted
Joint Venture; provided, however, that the incurrence of such Contingent
Obligation is permitted by Section 11.8(e); and
(g) any Contingent Obligation of the Company or any of its
Subsidiaries in the nature of a guarantee of Indebtedness of officers and
directors of the Company and its Subsidiaries in the ordinary course of
business; provided, however, that the sum of the aggregate principal amount of
the Indebtedness so guaranteed and the aggregate principal amount of all then
outstanding loans permitted by Section 11.8(f) does not exceed $7,000,000 at
any one time outstanding.
Section 11.5 Limitation on Fundamental Changes. The Company
will not, and will not permit any of its Subsidiaries to, enter into any
transaction in the nature of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), convey, sell, lease, assign, transfer (including any transfer,
relocation, situation or registration of any asset owned by any Loan Party to
the Commonwealth of Australia other than in the ordinary course of business) or
otherwise dispose of, in one transaction or a series of related transactions,
all or a substantial part of the business or assets of the Company, or enter
into any such transaction or series of related transactions with regard to a
group of Subsidiaries which, if merged into a single Subsidiary, would
constitute a substantial part of the business or assets of the Company, or
acquire by purchase or otherwise all or substantially all the business or
assets of, or stock or other evidences of beneficial ownership of, any Person,
except that during such time as no Specified Default or Event of Default has
occurred and is continuing (or would result therefrom):
(a) the Company and its Subsidiaries may engage in Permitted
Intercompany Transfers; and
(b) the Company and any of its Subsidiaries may engage in
transactions permitted under Section 11.6 or Section 11.8(d) or (e).
Section 11.6 Limitation on Sale of Assets. The Company will
not, and will not permit any of its Subsidiaries to, sell, lease, assign,
transfer or otherwise dispose of any of its assets (including, without
limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any of the Subsidiaries of the Company,
issue any Stock or Stock Equivalents (other than any director's qualifying
shares), to any Person, except:
(a) sales, transfers and other dispositions by the Company
and its Subsidiaries of (i) obsolete or worn out property in the ordinary
course of business or (ii) contemplated by clause (b)(ii) of the definition of
"Net Proceeds Event";
(b) sales, transfers and other dispositions of property
(including, without limitation, inventory) by the Company and its Subsidiaries
to third parties in the ordinary course of business for fair market value;
(c) during such time as no Specified Default or Event of
Default has occurred and is continuing (or would result therefrom), Permitted
Intercompany Transfers;
(d) during such time as no Specified Default or Event of
Default has occurred and is continuing (or would result therefrom), any
Specified Dispositions for fair market value (which property, in the aggregate,
the Company hereby represents and warrants is not material to the conduct of
the business of the Company and its Subsidiaries);
(e) during such time as no Specified Default or Event of
Default has occurred and is continuing (or would result therefrom), sales,
transfers and other dispositions of assets of the Company and its Subsidiaries
to Permitted Joint Ventures in accordance with the provisions of Section 11.8;
(f) during such time as no Specified Default or Event of
Default has occurred and is continuing (or would result therefrom), any Resale
Transactions to Persons other than Affiliates for fair market value;
(g) other sales, transfers and other dispositions by the
Company and its Subsidiaries which are permitted by Section 10.14, 11.3 or
11.5; and
(h) sales, transfers and other dispositions by the Company
and its Subsidiaries of assets with an aggregate fair market value not to
exceed $25,000,000 in any calendar year; provided, however, that no Default or
Event of Default shall be in effect prior to or after giving effect to any such
sale, transfer or other disposition; provided, further, that in the event that
any amount of assets permitted to be disposed of in any calendar year pursuant
to this clause (h) is not disposed of during such calendar year, such amount
may be carried over for dispositions in any subsequent calendar year (up to a
maximum amount not to exceed $50,000,000 and limited to an aggregate fair
market value of $50,000,000 for any calendar year); provided, further, that all
Net Proceeds of such sale, transfer or other disposition are applied to the
payment of the Payment Obligations as set forth in, and to the extent required
by, Section 7.3(e)(ii)).
Section 11.7 Limitation on Restricted Payments. (a) The
Company will not, and will not permit any of its Subsidiaries to, make any
Restricted Payment, except that, so long as no Default or Event of Default has
occurred and is continuing at the time such Restricted Payment is made or
would result therefrom and the representations and warranties deemed to be
made pursuant to Section 11.7(b) are true and correct in all material respects
as of the date such Restricted Payment is made, the following Restricted
Payments may be made:
(i) Restricted Payments on account of amounts payable under
the Prior Tax Sharing Agreement, with respect to state and local taxes
and federal taxes; provided, however, that no such Restricted Payment
(whether in cash or otherwise) shall be made more than ten Business
Days prior to the date upon which the related liability to the
Internal Revenue Service (or the relevant state or local taxing
authority) for tax (including estimated taxes) is paid (or, if no such
taxes are payable, ordinarily would have been due);
(ii) Restricted Payments made to Permitted Joint Ventures, to
the extent that such Restricted Payments are permitted pursuant to
Section 11.8(e);
(iii) Restricted Payments made from time to time to finance
Revlon's purchase, redemption, acquisition or retirement for value of,
or payment of amounts owing in respect of, any shares, interests,
rights to purchase, warrants, options, participations, stock
appreciation rights, performance units or other equivalents or
interests in the equity of Revlon held by any current or former
director, officer, consultant or employee of Revlon, the Company or
any Subsidiary of the Company in such person's role as a director,
officer, consultant or employee (or by their estates or any
beneficiaries of their estates); provided, however, that (x) the sum
of (1) the aggregate amount of Restricted Payments made pursuant to
this clause (iii) and (2) the aggregate amount of open-market
purchases of common stock and restricted stock of Revlon together with
any other investments made as permitted under Section 11.8(g), does
not exceed $8,000,000 in any calendar year and (y) amounts available
pursuant to this clause (iii) to be utilized for Restricted Payments
during any calendar year which are not utilized during such year may
be carried forward and utilized in any succeeding calendar year; and
(iv) subject to the limitations set forth in Sections 11.8(f)
and 11.8(g), Restricted Payments made from time to time to finance the
investments contemplated by Sections 11.8(f) and 11.8(g).
(b) The making of each Restricted Payment pursuant to Section
11.7(a) shall constitute a representation and warranty by the Company that, on
and as of the date upon which such Restricted Payment is made (both before and
after giving effect to the making thereof), the representations and warranties
contained in Section 8.10 and Section 8.15(a) are true and correct.
Section 11.8 Limitation on Investments. The Company will not,
and will not permit any of its Subsidiaries to, make or commit to make any
advance, loan, extension of credit or capital contribution to, or purchase of
any stock, bonds, notes, debentures or other securities of, or make any other
investment in, any Person, except as otherwise permitted by Section 11.10 and
except that:
(a) each of the Company and its Subsidiaries may make or
commit to make investments in cash or Cash Equivalents held in a Deposit
Account or a Control Account, subject to Section 10.19, if applicable, with
respect to the Company and the Subsidiary Guarantors;
(b) each of the Company and its Subsidiaries may make or
commit to make investments in Accounts, contract rights and chattel paper (as
defined in the UCC), put and call foreign exchange options to the extent
necessary to hedge foreign exchange exposures or foreign exchange spot and
forward contracts, and notes receivable, arising or acquired in the ordinary
course of business and in Hedging Contracts;
(c) the Company may make or commit to make any loan or
advance or purchase any securities constituting a Restricted Payment permitted
by Section 11.7;
(d) if in the reasonable judgment of the Company, any
customer is deemed to be in a reorganization or unable to make a timely cash
payment on Indebtedness or other obligations of such customer owing to it, each
of the Company and its Subsidiaries may invest or commit to invest in
securities issued by such customer or any Affiliate thereof (other than any
Affiliate of the Company) in lieu of cash payment; provided, however, that the
Company or such Subsidiary, as the case may be, has paid no new consideration
(other than forgiveness of Indebtedness or other obligations) therefor;
(e) each of the Company and its Subsidiaries may make or
commit to make Investments; provided, however, that (i) no Default or Event of
Default has occurred and is continuing at the time of such Investment (or would
result therefrom) and (ii) the aggregate Investment Consideration (as reduced
by the amount equal to the Net Proceeds received by the Company and its
Subsidiaries from any Net Proceeds Event on account of any Resale Transaction
with respect to any Investment) with respect to all such Investments plus
Contingent Obligations incurred pursuant to Section 11.4(f) plus Intercompany
Investments made pursuant to Section 11.8(j)(iii)(z) does not exceed $7,500,000
per calendar year; provided, further, that none of the Company or any of its
Subsidiaries shall commit to make any Investment unless such Investment is then
permitted hereunder;
(f) each of the Company and its Subsidiaries may make or
commit to make loans to officers and directors of the Company and its
Subsidiaries in the ordinary course of business to the extent permitted by
applicable law, in an aggregate principal amount which, in the aggregate with
all then outstanding Contingent Obligations permitted by Section 11.4(g), does
not exceed $7,000,000 at any one time outstanding from the Company and its
Subsidiaries to all such officers and directors;
(g) the Company (and, in the case of clause (ii) below, the
Company's Domestic Subsidiaries) may make or commit to make investments in (i)
open-market purchases of common stock of Revlon and (ii) any other investment
available to highly compensated employees under any "excess 401-(k) plan" of
the Company (or any of its Domestic Subsidiaries, as applicable), in each case
to the extent necessary to permit the Company (or such Domestic Subsidiary, as
applicable) to satisfy its obligations under such "excess 401-(k) plan" for
highly compensated employees; provided, however, that the aggregate amount of
such purchases and other investments under this Section 11.8(g) together with
any Restricted Payments made as permitted under Section 11.7(a)(iii) does not
exceed $8,000,000 in any year and (ii) amounts available pursuant to this
Section 11.8(g) to be utilized for investments during any year which are not
utilized during such year may be carried forward and utilized in any succeeding
year;
(h) subject to the limitations set forth in Section
11.7(a)(iii), each of the Company and its Subsidiaries may make or commit to
make investments from time to time in connection with the transactions
contemplated by Section 11.7(a)(iii);
(i) each of the Company and its Subsidiaries may make or
commit to make Permitted Acquisitions; and
(j) each of the Company and its Subsidiaries may make or
commit to make any advance, loan, extension of credit or capital contribution
to, or purchase any Stock or Stock Equivalents, bonds, notes, debentures or
other securities of, or make any other investment in, any of the Company
(except for any Stock, Stock Equivalents or bonds, notes, debentures or other
securities or other Indebtedness, other than intercompany Indebtedness incurred
in the ordinary course of business, of the Company) or any Subsidiary (each an
"Intercompany Investment"); provided, however, that with respect to any
Intercompany Investment made after the date hereof by the Company or any
Domestic Subsidiary in any Subsidiary that is not a Guarantor, (i) such
Intercompany Investment shall only be made in the ordinary course of business
or consistent with past practice, (ii) if such Intercompany Investment is made
in cash as an advance, loan or other extension of credit, such Intercompany
Investment shall be evidenced by an intercompany note which, in the case of any
such note held by the Company or any Subsidiary Guarantor, shall be promptly
pledged to the Collateral Agent, for the benefit of the Secured Parties,
pursuant to the relevant Security Documents and (iii) if such Intercompany
Investment is made in cash as a capital contribution, such Intercompany
Investment shall only be made in a Foreign Subsidiary (w) in an aggregate
amount such that after giving effect thereto, such Foreign Subsidiary (A) is in
compliance with all material Requirements of Law applicable to it with respect
to capitalization, (B) has sufficient capital with which to conduct its
business in accordance with past practice and (C) is not undercapitalized to
such an extent that, solely as a result of such undercapitalization, (I) any
creditor of such Foreign Subsidiary would be deemed under the laws of any
relevant jurisdiction to owe a fiduciary duty to any other creditor of such
Foreign Subsidiary or (II) if applicable, the Local Loans made or the
Acceptances created by the relevant Local Fronting Lender to such Foreign
Subsidiary would be subordinated to any obligations of such Foreign Subsidiary
owing to any other Person, (x) to the extent that on the date of such
contribution, the cash contributed to the capital of the applicable Foreign
Subsidiary, if loaned or advanced through an intercompany loan evidenced by a
note, would either (A) not cause the Company or the Domestic Subsidiary of the
Company acquiring such note to be deemed to be doing business in any
jurisdiction outside of the United States or otherwise subject to taxation or
regulation in such jurisdiction or (B) not require the Foreign Subsidiary
issuing such note to withhold from any payment made in respect thereof any
amount now or hereafter imposed, levied, collected or assessed by any relevant
jurisdiction, or any political subdivision or taxing authority thereof or
therein, (y) in connection with any sale, transfer or other disposition of
capital stock or other equity interests or assets of such Foreign Subsidiary
permitted hereunder, to the extent that the aggregate amount of such capital
contribution does not exceed the aggregate amount outstanding of any
Indebtedness and other obligations of such Foreign Subsidiary owing to the
Company or any of its Domestic Subsidiaries that was in each case created or
otherwise incurred on or prior to the date of such sale, transfer or other
disposition and which Indebtedness and other obligations are outstanding
immediately prior to such sale, transfer or other disposition or (z) in
connection with the formation or organization of such Foreign Subsidiary, to
the extent that the amounts expended pursuant to this Section 11.8(j)(iii)(z)
plus amounts expended pursuant to Section 11.8(e) do not exceed $7,500,000 per
calendar year.
Section 11.9 Limitation on Payments on Account of Debt;
Synthetic Purchase Agreements. The Company will not, and will not permit any of
its Subsidiaries to:
(a) amend, waive, supplement or otherwise modify in any
material respect (including without limitation, amendments of the interest rate
or payment terms thereof) (i) any Indenture or any agreement governing the
Subordinated Notes or any agreement governing any refinancing Indebtedness of
the Indentures or the Term Loans incurred pursuant to Section 11.2(b), if the
proposed amendment, waiver or supplement is adverse to the Lenders, (ii) any
agreement governing the M&FH Loans on terms and conditions (taken as whole)
unless such amendment, waiver, supplement or modification is no less favorable
to the Company or the Lenders than the terms and conditions of the M&FH Loans
as in effect on the Closing Date (taken as a whole), (iii) any Indebtedness
permitted pursuant to Section 11.2(o), if the proposed amendment, waiver or
supplement is adverse to the Lenders or (iv) any other Indebtedness not
permitted pursuant to the terms of this Agreement as in effect on the date
hereof but entered into with the consent of the Required Lenders;
(b) amend, waive, supplement or otherwise modify any Capital
Contribution Note;
(c) directly or indirectly, defease, or make or commit to
make any optional prepayment of, or otherwise repurchase, any of its
Indebtedness, except:
(i) Indebtedness under this Agreement;
(ii) Indebtedness which is (A) permitted by paragraphs (c),
(d), (f), (g) through (m) and (o) of Section 11.2 or (B) described in
Section 7.3(e)(iii);
(iii) Indebtedness (other than under the Indentures)
permitted by Section 11.2(b) and (i) upon any refinancing thereof in
accordance with the provisions of such Section 11.2(b) and (i),
respectively;
(iv) (A) Indebtedness under the Designated Senior Secured
Indenture, (B) Indebtedness under the Subordinated Notes Indenture
with proceeds of any refinancing of such Indebtedness pursuant of
Section 11.2(b) or with proceeds of any Capital Contribution and any
Subordinated Notes remaining outstanding after such refinancing, (C)
Indebtedness under the 8-1/8% Senior Notes Indenture with proceeds of
any refinancing of such Indebtedness pursuant of Section 11.2(b) or
with proceeds of any Capital Contribution, (D) Indebtedness under the
9% Senior Notes Indenture with proceeds of any refinancing of such
Indebtedness pursuant of Section 11.2(b), and (E) Indebtedness under
the Subordinated Notes Indenture, the 8-1/8% Senior Notes Indenture or
the 9% Senior Notes Indenture or any other Indebtedness maturing prior
to the Term Loan Maturity Date in an aggregate amount not to exceed
50% of the Excess Cash Flow in any fiscal year; provided, however,
that (1) the prepayment required by Section 7.3(c) with respect to
such fiscal year has been made and (2) the Aggregate Actual
Outstanding Multi-Currency Extensions of Credit (other than Undrawn
L/C Obligations) at the time of such redemption, repurchase,
defeasance or repayment is $50,000,000 or less;
(v) Indebtedness that is repaid with the proceeds of Equity
Offerings by Revlon; and
(d) enter into or be party to, or make any payment under, any
Synthetic Purchase Agreement.
Section 11.10 Limitation on Transactions with Affiliates. The
Company will not, and will not permit any of its Subsidiaries to, (a) engage in
any transaction with any Affiliate of the Company, except upon terms no less
favorable to the Company or such Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person not an Affiliate,
or (b) sell, transfer, convey, assign or otherwise dispose of any material
asset to any Affiliate of the Company; provided, however, that nothing
contained in this Section 11.10 shall prohibit (x) the Company from making
Restricted Payments permitted by Section 11.7, (y) the Company or any of its
Subsidiaries from engaging in any transaction pursuant to and in accordance
with the Occupancy Agreement, dated as of June 1, 2001, between M&FG and the
Company, as amended by Amendments thereto dated as of October 14, 2003 and June
14, 2004 and (z) payments required to be made by the Company with respect to
its obligations under the Company Tax Sharing Agreement.
Section 11.11 Hazardous Materials. The Company will not, and
will not permit any of its Subsidiaries to, cause or knowingly permit any of
the Mortgaged Properties or any other of its assets to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer,
produce or process Hazardous Materials, except in compliance in all respects
with all applicable Environmental Laws and in a manner that would not
reasonably be expected to result in a liability under any applicable
Environmental Laws, nor release, discharge, dispose of or permit or suffer any
release or disposal as a result of any act or omission on its part, or on the
part of any tenant or subtenant, of Hazardous Materials onto any such property
or asset in violation of any Environmental Law or in a manner that would
reasonably be expected to result in a liability under any applicable
Environmental Laws, except where such non-compliance or liability would not be
reasonably likely to have a Material Adverse Effect.
Section 11.12 Accounting Changes. (a) The Company will not,
and will not permit any of its Subsidiaries to, make or permit to be made any
change in accounting policies affecting the presentation of financial
statements or reporting practices from those employed by the Company in the
audited financial statements contained in its Annual Report on Form 10-K for
its fiscal year ended December 31, 2003, unless (i) such changes are required
or permitted by GAAP, (ii) such changes are disclosed to the Lenders through
the Administrative Agents or otherwise and (iii) if requested by the
Administrative Agents, relevant prior financial statements are reconciled (in
form and detail reasonably satisfactory to the Administrative Agents) to show
comparative results and reconciliations.
(b) Notwithstanding anything to the contrary contained
herein, compliance with the financial covenants contained in Section 11.1 shall
be determined based upon GAAP as in effect as of the date of, and as used in,
the preparation of the audited consolidated financial statements of the Company
and its Subsidiaries for the fiscal year ended December 31, 2003.
Section 11.13 Limitation on Negative Pledge Clauses. The
Company will not, and will not permit any of its Subsidiaries to, enter into
any agreement (other than the Loan Documents and documents related to the M&FH
Loans) with any Person which prohibits or limits the ability of the Company or
any of its Subsidiaries to create, incur, assume or suffer to exist any Lien
securing the Payment Obligations upon any of its properties, assets or
revenues, whether now owned or hereafter acquired; provided, however, that any
of the Company and its Subsidiaries may enter into any such agreement to the
extent that such agreement is in connection with a Lien permitted by paragraph
(c), (d), (f), (h), (j), (k), (m), (n), (o), (p), or (q) of Section 11.3 and
any such prohibitions or limitations apply only to the property encumbered by
such Lien.
Section 11.14 Amendment of Company Tax Sharing Agreement. The
Company will not, and will not permit any of its Subsidiaries to, amend,
modify, change, waive, cancel or terminate any term or condition of the Company
Tax Sharing Agreement in a manner adverse to the interests of the Company or
the Lenders without the prior written consent of the Required Lenders.
Section 11.15 Limitations on Restrictions on Subsidiary
Distributions. The Company shall not, and shall not permit any of its
Subsidiaries to, agree to enter into or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of such
Subsidiary to pay dividends or make any other distribution or transfer of funds
or assets or make loans or advances to or other investments in, or pay any
Indebtedness owed to, the Company or any other Subsidiary of the Company,
except (i) pursuant to the Loan Documents, (ii) any agreements governing
purchase money Indebtedness or Capital Lease Obligations permitted by Section
11.2(l) (in which latter case, any prohibition or limitation shall only be
effective against the assets financed thereby) and (iii) pursuant to any
agreement relating to a disposition of property of the Company or any
Subsidiary permitted under this Agreement, to the extent such restrictions
restrict the transfer of the property subject to such agreement.
Section 11.16 Limitation on Activities of RPH.
Notwithstanding anything to the contrary in this Agreement or any other Loan
Document, the Company shall not cause or permit RPH to (a) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage in, any
business or operations, (b) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or financial obligations or (c) own, lease,
manage or otherwise operate any properties or assets (including cash and Cash
Equivalents), in each case, other than (i) those incidental to RPH's ownership
and licensing of the Intellectual Property transferred to it in connection with
the Company's disposition of its professional products business and (ii)
nonconsensual obligations imposed by Requirement of Law and obligations with
respect to its capital stock.
Section 11.17 Prohibition on Speculative Hedging
Transactions. The Company shall not, and shall not permit any of its
Subsidiaries to, engage in any speculative transaction involving Hedging
Contracts, except as expressly permitted under this Agreement and for the sole
purpose of hedging in the ordinary course of business.
Article XII
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following events:
(a) Payments. Failure by any Borrower to pay any principal of
any Loan, Note or Draft, or any L/C Reimbursement Obligation, when due in
accordance with the terms thereof and hereof; or failure by any Borrower to pay
any interest on any Loan, Note or Draft, or any L/C Reimbursement Obligation,
within five days after the date when due in accordance with the terms thereof
and hereof or any fee or other amount payable in connection with any Loan
Document within five days after the date when due; or
(b) Representations and Warranties. Any representation or
warranty made or deemed made by any Borrower or any other Loan Party in any
Loan Document or which is contained in any certificate or financial statement
furnished at any time under or in connection herewith or therewith 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; or
(c) Certain Covenants.
(i) Default by any Loan Party in the observance or
performance of any negative covenant or agreement contained in Section
11.1(b), which Default either (A) has been specified in a written
notice to the Company as an Event of Default by the Multi-Currency
Administrative Agent, at the direction of the Required Multi-Currency
Lenders, or (B) has continued for a period of 45 days without being
cured or waived by the Required Multi-Currency Lenders; or
(ii) Default by any Loan Party in the observance or
performance of any other negative covenant or agreement contained in
Article XI; or
(iii) Default by any Loan Party in the observance of any
covenant or agreement contained in Sections 10.4 (with respect to the
first sentence thereof) or 10.7(a); or
(d) Other Covenants. Default by any Loan Party in the
observance or performance of any other covenant or agreement contained or
incorporated by reference in this Agreement or any other Loan Document and the
continuance of such default unremedied for a period of 15 days; or
(e) Effectiveness of the Security Documents. On or after the
Closing Date and subject to Section 10.16, (i) for any reason (other than any
act on the part of any Agent or any Lender) any Security Document ceases to be
or is not in full force and effect or any of the Liens intended to be created
by any Security Document ceases to be or is not a valid and perfected Lien
having the priority contemplated thereby with respect to Collateral having an
aggregate fair market value in excess of $1,000,000 or (ii) any Borrower, or
any other Loan Party shall assert in writing that any Security Document has
ceased to be or is not in full force and effect; or
(f) Cross Default. Any of Revlon or any of its Subsidiaries
shall Cross Default;
(g) Control Persons. (i) Any Person (or group of Persons
acting in concert), other than Ronald O. Perelman or, in the event of his
incompetence or death, his estate, heirs, executor, administrator, committee or
other personal representative and his (or any of their) Affiliates (without
giving effect to clause (a) of the definition thereof) (collectively, "ROP"),
shall "control" the Company, as such term is used in Rule 405 promulgated under
the Securities Act of 1933, as amended, or (ii) in the event that ROP ceases to
so "control" the Company, any other Person (or group of Persons acting in
concert) shall own, directly or indirectly, equity interests representing more
than 25% of the total voting power represented by the issued and outstanding
equity interests of the Company then entitled to vote in the election of the
Board of Directors of the Company, or (iii) the Continuing Directors shall
cease to constitute at least a majority of the board of directors of the
Company; or
(h) Ownership. Revlon shall at any time for any reason cease
to be the beneficial and record owner of 100% of the outstanding shares of
capital stock and other equity interests of the Company; or
(i) Default under Company Tax Sharing Agreement. At any time,
any party (other than the Company or any of its Subsidiaries) shall default in
its payment obligations under the Company Tax Sharing Agreement; or
(j) Commencement of Bankruptcy or Reorganization Proceeding.
(i) Revlon, any Borrower or any of its Subsidiaries shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it as bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, wind-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets; or,
(ii) there shall be commenced against Revlon, any Borrower or any of its
Subsidiaries any such case, proceeding or other action referred to in clause
(h) which results in the entry of an order for relief or any such adjudication
or appointment remains undismissed, undischarged or unbonded for a period of 60
days; provided, however, that each Borrower, for itself and as agent for each
of its Subsidiaries, hereby expressly authorizes each Agent and each Lender to
appear in any court conducting any such case, proceeding or other action during
such 60-day period to preserve, protect and defend their rights under the Loan
Documents; or (iii) there shall be commenced against Revlon, any Borrower or
any of its Subsidiaries any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) Revlon,
any Borrower or any of its Subsidiaries shall take any action authorizing, or
in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth above in this paragraph (j); or (v) Revlon, any
Borrower or any of its Subsidiaries shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become due;
or
(k) Material Judgments. (i) One or more judgments or decrees
shall be entered against the Company or any of its Subsidiaries involving in
the aggregate a liability of $5,000,000 or more or any judgment or decree shall
be entered against Revlon in excess of $20,000,000 (or, in each case, with
respect to any other currency, the Equivalent thereof) and all such judgments
or decrees shall not have been vacated, stayed, satisfied, discharged or bonded
(or, if available subject to the foreign equivalent thereof) pending appeal
within 60 days from the entry thereof (provided that no Event of Default shall
arise under this Section 12(k) as a result of any such judgment or decree to
the extent that (x) it is covered by a valid policy of insurance covering
payment thereof which has been provided by an Eligible Insurer and (y) such
Eligible Insurer has been notified of, and has not disputed the claim made for
payment of, the amount of such judgment or decree) or (ii) any non-monetary
judgment or order shall be rendered against the Company or any of its
Subsidiaries that is reasonably likely to have a Material Adverse Effect, and
in the case of either clause (i) or (ii), there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect unless such
judgment or order shall have been vacated, satisfied, discharged or bonded (or,
if available subject to the foreign equivalent thereof) pending appeal; or
(l) ERISA. (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan, (iii) a Reportable Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the reasonable
opinion of the Required Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Company or any Commonly
Controlled Entity of the Company shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan
or (vi) any other event or condition shall occur or exist, with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, would be
reasonably likely to have a Material Adverse Effect; or
(m) Matters Relating to Subordinated and Other Indebtedness.
On or after the Closing Date, (i) if for any reason (other than any act on the
part of any Agent or any Lender) (A) any Affiliate Subordination Letter then
required to be delivered by an Affiliate pursuant to the terms of this
Agreement shall cause to be or shall not be in full force and effect or (B) any
Affiliate which is party to an Affiliate Subordination Letter shall assert in
writing that the Affiliate Subordination Letter to which it is a party has
ceased to be or is not in full force and effect or (ii) any Subordinated Notes
or other Indebtedness (other than trade credit in the ordinary course of
business and any Capital Contribution Note) of the Company or any of its
Subsidiaries shall be held by (or otherwise owing to) any Affiliate of the
Company (other than officers and directors of the Company) if such Affiliate
has not executed and delivered an agreement substantially in the form of the
Affiliate Subordination Letter within ten Business Days following the
acquisition of such Indebtedness by such Affiliate; provided, however, that an
Affiliate Subordination Letter shall not be required to be delivered with
respect to (i) trade credit in the ordinary course of business, (ii) any
Capital Contribution Note, (iii) any M&FH Loan, (iv) any Indebtedness permitted
under Section 11.2(o) or (v) any Indebtedness of the Company or any of its
Subsidiaries of a class that is publicly held or issued pursuant to a Rule 144A
offering, including Indebtedness issued pursuant to an Indenture; or
(n) Additional Subsidiaries. Revlon shall create or otherwise
have any direct Subsidiary other than the Company; or
(o) Capital Contributions. (i) Revlon shall fail to promptly
(and in any event within five Business Days following receipt by it of the
applicable Net Proceeds) make Capital Contributions to the Company in an amount
equal to 100% of the Net Proceeds of any Equity Offering (other than amounts
which are applied by Revlon to repurchase, repay, defease or redeem any
Subordinated Notes, 8-1/8% Senior Notes, 9% Senior Notes or other Indebtedness
for borrowed money of the Company scheduled to mature prior to the Term Loan
Maturity Date, which Indebtedness so purchased is substantially concurrently
contributed by Revlon to the capital of the Company or transferred in exchange
for Stock of the Company), (ii) Revlon shall fail to make by March 31, 2006
Capital Contributions to the Company in an amount not less than (A)
$109,700,000 minus (B) any amounts applied by Revlon to repurchase, repay,
defease or redeem any Subordinated Notes, 8-1/8% Senior Notes, 9% Senior Notes
or other Indebtedness for borrowed money of the Company scheduled to mature
prior to the Term Loan Maturity Date, which Indebtedness so purchased is
concurrently contributed by Revlon to the capital of the Company or transferred
in exchange for Stock of the Company or (iii) the Company shall fail to
promptly apply any Capital Contributions received pursuant to clause (ii) above
to repurchase, repay, defease or redeem first, the 8-1/8% Senior Notes and the
9% Senior Notes then outstanding and second, if the 8-1/8% Senior Notes
Redemption and the 9% Senior Notes Redemption shall have occurred, the
Subordinated Notes; or
(p) Revlon Operations. Revlon shall have any meaningful
assets (other than any Capital Contribution Notes or rights with respect to the
Mafco Investment Agreement, the Company Tax Sharing Agreement, the Stockholders
Agreement, the Mafco Support Agreement and the Fidelity Support Agreement) or
Indebtedness (other than (w) Indebtedness the Net Proceeds of which are applied
to prepay the Term Loans and reduce the Agreegate Multi-Currency Commitments to
the extent required by Section 7.3(e)(i), (x) Indebtedness of the type
contemplated by clause (i) of the definition of such term, (y) Indebtedness in
respect of the Guaranty and (z) Indebtedness in respect of the Indentures) or
shall conduct any meaningful business, other than (i) its ownership of the
Company and (ii) such activities as are customary for a publicly traded holding
company which is not itself an operating company; or
(q) M&FH Loans. Any M&FH Lender shall have failed to fund any
binding commitments by such M&FH Lender under any agreement governing any M&FH
Loan, which request shall be sent promptly to the Administrative Agents
pursuant to Section 10.2(f) hereof; or
(r) Designated Senior Secured Notes. The Company shall not
have repurchased, repaid, defeased or redeemed in full all of the Designated
Senior Secured Notes issued and outstanding under the Designated Senior Secured
Indenture within 60 days after the Closing Date; or
(s) Subordinated Notes. The Subordinated Notes or the
guarantees thereof (or any refinancing Indebtedness of the Subordinated Notes
incurred pursuant to Section 11.12(b)) shall cease, for any reason, to be
validly subordinated to the Payment Obligations as provided in the
Subordinated Note Indenture (or the agreement governing such refinancing
Indebtedness) or the trustee in respect of the Subordinated Notes (or the
agreement governing such refinancing Indebtedness) or the holders of at least
25% in aggregate principal amount of the Subordinated Notes (or such
refinancing Indebtedness) shall so assert;
then, and in any such event, (x) if such event is an Event of Default specified
in clause (i), (ii) or (iii) of paragraph (j) of this Section 12 with respect
to any Loan Party, automatically the Commitments shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder), the Notes
and the Drafts shall immediately become due and payable, and (y) if such event
is any other Event of Default, any or all of the following actions may be
taken: (i) with the consent of the Required Multi-Currency Lenders, the
Multi-Currency Administrative Agent may, or upon the request of the Required
Multi-Currency Lenders, the Multi-Currency Administrative Agent shall, by
notice to the Company, declare the Aggregate Multi-Currency Commitment to be
terminated forthwith, whereupon the Aggregate Multi-Currency Commitment shall
immediately terminate; and/or (ii) with the consent of the Required
Multi-Currency Lenders, the Multi-Currency Administrative Agent may, or upon
the request of the Required Multi-Currency Lenders, the Multi-Currency
Administrative Agent shall, by notice to the Company (on its own behalf and as
agent for the Borrowing Subsidiaries), declare all or any part of the Revolving
Credit Loans, Swing Line Loans, Local Loans and Acceptances (with accrued
interest thereon) and any other amounts owing under this Agreement to the
Multi-Currency Lenders (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder), the
Revolving Credit Notes and the Drafts to be due and payable forthwith,
whereupon the same shall immediately become due and payable; and/or (iii) with
the consent of the Required Term Loan Lenders, the Term Loan Administrative
Agent may, or upon the request of the Required Term Loan Lenders, the Term Loan
Administrative Agent shall, by notice to the Company (on its own behalf and as
agent for the Borrowing Subsidiaries), declare all or any part of the Term
Loans (with accrued interest thereon) and any other amounts owing under this
Agreement to the Term Loan Lenders and the Term Loan Notes to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
In addition to the remedies set forth above, the Administrative Agents may
direct the Collateral Agent to exercise any remedies provided for by the
Security Documents in accordance with the terms thereof or any other remedies
provided by applicable law.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Company shall at such time deposit as
collateral security for such Letters of Credit in a Cash Collateral Account an
amount of cash in Dollars equal to the Deposit Requirement in effect at such
time. Amounts held in such Cash Collateral Account shall be applied by the
Multi-Currency Administrative Agent (in such order as it shall elect) to the
payment of the Payment Obligations on account of the Letters of Credit which
are then or thereafter due and payable and to cause any then-outstanding
Undrawn L/C Obligations to be Fully Secured. Following the payment of all such
Payment Obligations and the termination of all Letters of Credit, any balance
remaining in such Cash Collateral Account shall be applied in accordance with
the Intercreditor Agreement.
Except as expressly provided above in this Article XII,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
Article XIII
THE AGENTS
Section 13.1 Authorization and Action.
(a) Each Multi-Currency Lender and each Issuing Lender hereby
appoints Citicorp as the Multi-Currency Administrative Agent hereunder, and
each Multi-Currency Lender and each Issuing Lender authorizes the
Multi-Currency Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the other Loan Documents
as are delegated to the Multi-Currency Administrative Agent under such
documents and to exercise such powers as are reasonably incidental thereto.
Without limiting the foregoing, each Multi-Currency Lender and each Issuing
Lender hereby authorizes the Multi-Currency Administrative Agent to execute and
deliver, and to perform its obligations under, each of the Loan Documents to
which the Multi-Currency Administrative Agent is a party, to exercise all
rights, powers and remedies that the Multi-Currency Administrative Agent may
have under such Loan Documents.
(b) Each Term Loan Lender hereby appoints Citicorp as the
Term Loan Administrative Agent hereunder and each Term Loan Lender authorizes
the Term Loan Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the other Loan Documents
as are delegated to the Term Loan Administrative Agent under such agreements
and to exercise such powers as are reasonably incidental thereto. Without
limiting the foregoing, each Term Loan Lender hereby authorizes the Term Loan
Administrative Agent to execute and deliver, and to perform its obligations
under, each of the Loan Documents to which the Term Loan Administrative Agent
is a party, to exercise all rights, powers and remedies that the Term Loan
Administrative Agent may have under such Loan Documents.
(c) Each Lender and each Issuing Lender hereby acknowledges
the appointment of Citicorp as the Collateral Agent, and hereby authorizes the
Collateral Agent to take such action as agent on its behalf and to exercise
such powers, as set forth in the Intercreditor Agreement.
(d) As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including enforcement or collection),
the Agents shall not be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of (i)
in the case of the Multi-Currency Administrative Agent, the Required
Multi-Currency Lenders (or, where required by the express terms of this
Agreement, a greater proportion of the Multi-Currency Lenders), and such
instructions shall be binding upon each Multi-Currency Lender and each Issuing
Lender, (ii) in the case of the Term Loan Administrative Agent, the Required
Term Loan Lenders (or, where required by the express terms of this Agreement, a
greater proportion of the Term Loan Lenders), and such instructions shall be
binding upon each Term Loan Lender, and (iii) in the case of the Collateral
Agent, as set forth in the Intercreditor Agreement, and such instructions shall
be binding upon each Lender and each Issuing Lender (in each case, subject to
any limitations imposed thereon in the Intercreditor Agreement); provided,
however, that no Agent shall be required to take any action that (i) such Agent
in good faith believes exposes it to personal liability unless such Agent
receives an indemnification satisfactory to it from the applicable Lenders and
the Issuing Lenders with respect to such action or (ii) is contrary to this
Agreement or any Requirement of Law. Each Agent agrees to give to each
applicable Lender and Issuing Lender prompt notice of each notice given to it
by any Loan Party pursuant to the terms of this Agreement or the other Loan
Documents.
(e) In performing its functions and duties hereunder and
under the other Loan Documents, each Agent is acting solely on behalf of (i)
the applicable Lenders, (ii) in the case of the Multi-Currency Administrative
Agent, the Issuing Lenders and (iii) in the case of the Collateral Agent, the
Secured Parties and its duties are entirely administrative in nature. No Agent
assumes, or shall be deemed to have assumed, any obligation other than as
expressly set forth herein and in the other Loan Documents or any other
relationship as the agent, fiduciary or trustee of or for any Lender, Issuing
Lender, Secured Party or holder of any other Payment Obligation. Each Agent may
perform any of their duties under any Loan Document by or through their agents
or employees.
(f) The Arranger and the Syndication Agent shall have no
obligations or duties whatsoever in such capacities under this Agreement or any
other Loan Document and shall incur no liability hereunder or thereunder in
such capacities.
Section 13.2 Agents' Reliance, Etc. None of the Agents, any
of their Affiliates or any of their respective directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it,
him, her or them under or in connection with this Agreement or the other Loan
Documents, except for its, his, her or their own gross negligence, bad faith or
willful misconduct. Without limiting the foregoing, each of the Agents (a) may
treat the payee of any Note as its holder until such Note has been assigned in
accordance with Section 14.6, (b) may rely on the Register to the extent set
forth in Section 14.6, (c) may consult with legal counsel (including counsel to
the Company or any other Loan Party), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts, (d) makes no warranty or representation to any Lender
or Issuing Lender and shall not be responsible to any Lender or Issuing Lender
for any statements, warranties or representations made by or on behalf of
Revlon, the Company or any of the Company's Subsidiaries in or in connection
with this Agreement or any other Loan Document, (e) shall not have any duty to
ascertain or to inquire either as to the performance or observance of any term,
covenant or condition of this Agreement or any other Loan Document, as to the
financial condition of any Borrower or any Loan Party or as to the existence or
possible existence of any Default or Event of Default, (f) shall not be
responsible to any Lender or Issuing Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
attachment, perfection or priority of any Lien created or purported to be
created under or in connection with, this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto and (g)
shall incur no liability under or in respect of this Agreement or any other
Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which writing may be a telecopy or electronic mail) or
any telephone message believed by it to be genuine and signed or sent by the
proper party or parties.
Section 13.3 Posting of Approved Electronic Communications.
(a) Each of the Lenders, the Issuing Lenders and the
Borrowers agree, and the Company shall cause each Subsidiary Guarantor to
agree, that the Agents may, but shall not be obligated to, make the Approved
Electronic Communications available to the Lenders and Issuing Lenders by
posting such Approved Electronic Communications on IntraLinks(TM) or a
substantially similar electronic platform chosen by the Agents to be their
electronic transmission system (the "Approved Electronic Platform").
(b) Although the Approved Electronic Platform and its primary
web portal are secured with generally-applicable security procedures and
policies implemented or modified by the Administrative Agents from time to time
(including, as of the Closing Date, a dual firewall and a User ID/Password
Authorization System) and the Approved Electronic Platform is secured through a
single-user-per-deal authorization method whereby each user may access the
Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders,
the Issuing Lenders and the Borrowers acknowledges and agrees, and the Company
shall cause each Subsidiary Guarantor to acknowledge and agree, that the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution. In consideration for the convenience and other benefits afforded
by such distribution and for the other consideration provided hereunder, the
receipt and sufficiency of which is hereby acknowledged, each of the Lenders,
the Issuing Lenders and the Borrowers hereby approves, and the Company shall
cause each Subsidiary Guarantor to approve, distribution of the Approved
Electronic Communications through the Approved Electronic Platform and
understands and assumes, and the Company shall cause each Subsidiary Guarantor
to understand and assume, the risks of such distribution.
(c) THE APPROVED ELECTRONIC COMMUNICATIONS AND THE APPROVED
ELECTRONIC PLATFORM ARE PROVIDED "AS IS" AND "AS AVAILABLE". NONE OF THE
ADMINISTRATIVE AGENTS OR ANY OF THEIR AFFILIATES OR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (THE "AGENT
AFFILIATES") WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED
ELECTRONIC COMMUNICATIONS AND THE APPROVED ELECTRONIC PLATFORM AND EACH
EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED
ELECTRONIC COMMUNICATIONS AND THE APPROVED ELECTRONIC PLATFORM. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS) IS MADE BY
THE AGENT AFFILIATES IN CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS
OR THE APPROVED ELECTRONIC PLATFORM.
(d) Each of the Lenders, the Issuing Lenders and the
Borrowers agree, and the Company shall cause each Subsidiary Guarantor to
agree, that the Administrative Agents may, but (except as may be required by
applicable law) shall not be obligated to, store the Approved Electronic
Communications on the Approved Electronic Platform in accordance with the
Administrative Agents' generally-applicable document retention procedures and
policies.
Section 13.4 The Agents Individually. With respect to its
Commitments and Loans, the Multi-Currency Administrative Agent, the Term Loan
Administrative Agent and the Collateral Agent, each in their individual
capacity, shall each have and may exercise the same rights and powers hereunder
and is subject to the same obligations and liabilities as and to the extent set
forth herein for any other Lender. The terms "Lenders", "Term Loan Lenders",
"Revolving Credit Lenders", "Required Term Loan Lenders", "Required
Multi-Currency Lenders", "Required Lenders" and any similar terms shall, unless
the context clearly otherwise indicates, include, without limitation, each
Administrative Agent and the Collateral Agent in its individual capacity as a
Lender, a Term Loan Lender, a Multi-Currency Lender or as one of the Required
Term Loan Lenders, Required Multi-Currency Lenders or Required Lenders. Any
Administrative Agent or Collateral Agent or any of their respective Affiliates
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with, any Borrower and any Loan Party as if
such Person were not acting as an Agent.
Section 13.5 Lender Credit Decision. Each Lender and each
Issuing Lender acknowledges that it shall, independently and without reliance
upon the Administrative Agents or any other Lender conduct its own independent
investigation of the financial condition and affairs of the Borrowers and each
Loan Party in connection with the making and continuance of the Loans and with
the issuance of the Letters of Credit. Each Lender and each Issuing Lender also
acknowledges that it shall, independently and without reliance upon the
Administrative Agents or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and other
Loan Documents.
Section 13.6 Indemnification. Each Lender agrees to indemnify
each Agent and each of its Affiliates, and each of their respective directors,
officers, employees, agents and advisors (to the extent not reimbursed by the
Company), from and against such Lender's Commitment Percentage of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements (including fees, expenses and
disbursements of financial and legal advisors) of any kind or nature whatsoever
that may be imposed on, incurred by, or asserted against, such Agent or any of
its Affiliates, directors, officers, employees, agents and advisors in any way
relating to or arising out of this Agreement or the other Loan Documents or any
action taken or omitted by such Agent under this Agreement or the other Loan
Documents; provided, however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's or such
Affiliate's gross negligence or willful misconduct. Without limiting the
foregoing, each Lender agrees to reimburse each Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including fees, expenses and
disbursements of financial and legal advisors) incurred by such Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of its rights or
responsibilities under, this Agreement or the other Loan Documents, to the
extent that such Agent is not reimbursed for such expenses by the Company or
another Loan Party.
Section 13.7 Successor Agent. Subject to the terms of this
Section 13.7, each Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Company. Upon any such
resignation, (a) the Required Term Loan Lenders shall have the right to appoint
a successor Term Loan Administrative Agent and (b) the Required Multi-Currency
Lenders shall have the right to appoint a successor Multi-Currency
Administrative Agent. If no successor Administrative Agent shall have been so
appointed, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the applicable Lenders, appoint
a successor Administrative Agent selected from among the applicable Lenders. In
either case, such appointment shall be subject to the prior written approval of
the Company (which approval may not be unreasonably withheld or delayed and
shall not be required upon the occurrence and during the continuance of an
Event of Default). Upon the acceptance of any appointment as Administrative
Agent by a successor Administrative Agent, such successor Administrative Agent
shall succeed to, and become vested with, all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. Prior to any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
retiring Administrative Agent shall take such action as may be reasonably
necessary to assign to the successor Administrative Agent its rights as
Administrative Agent under the Loan Documents. After such resignation, the
retiring Administrative Agent shall continue to have the benefit of this
Article XIII as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents. If no
Lender has accepted appointment as a successor Term Loan Administrative Agent
or Multi-Currency Administrative Agent within 30 days following a retiring
Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective, and the Required Term Loan Lenders or
the Required Multi-Currency Lenders, as the case may be, shall assume and
perform all of the duties of the retiring Term Loan Administrative Agent or
Multi-Currency Administrative Agent hereunder until such time, if any, as the
Required Term Loan Lenders or the Required Multi-Currency Lenders, as the case
may be, appoint a successor agent as provided for above. The resignation and
removal of the Collateral Agent shall be governed by the Intercreditor
Agreement.
Section 13.8 Concerning the Collateral and the Security
Documents.
(a) Each Multi-Currency Lender and each Issuing Lender agrees
that any action taken by the Multi-Currency Administrative Agent or the
Required Multi-Currency Lenders (or, where required by the express terms of
this Agreement, a greater proportion of the Multi-Currency Lenders) in
accordance with the provisions of this Agreement or of the other Loan
Documents, and the exercise by the Multi-Currency Administrative Agent or the
Required Multi-Currency Lenders (or, where so required, such greater proportion
of the Multi-Currency Lenders) of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Multi-Currency Lenders and the Issuing
Lenders. Each Term Loan Lender agrees that any action taken by the Term Loan
Administrative Agent or the Required Term Loan Lenders (or, where required by
the express terms of this Agreement, a greater proportion of the Term Loan
Lenders) in accordance with the provisions of this Agreement or of the other
Loan Documents, and the exercise by the Term Loan Administrative Agent or the
Required Term Loan Lenders (or, where so required, such greater proportion of
the Term Loan Lenders) of the powers set forth herein or therein, together with
such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of the Term Loan Lenders. Each Lender and each Issuing Lender
agrees that any action taken by the Collateral Agent in accordance with the
provisions of this Agreement or of the other Loan Documents, and the exercise
by the Collateral Agent of the powers set forth herein or therein, together
with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders, the Issuing Lenders and the
other Secured Parties. Without limiting the generality of the foregoing, the
Collateral Agent shall have the sole and exclusive right and authority to (i)
act as the disbursing and collecting agent for the Lenders and the Issuing
Lenders with respect to all payments and collections arising in connection with
the Collateral and with the Security Documents, (ii) execute and deliver each
Security Document and accept delivery of each such agreement delivered by
Revlon, the Company or any of its Subsidiaries, (iii) act as collateral agent
for the Lenders, the Issuing Lenders and the other Secured Parties for purposes
of the perfection of all security interests and Liens created by such
agreements and all other purposes stated therein; provided, however, that the
Collateral Agent hereby appoints, authorizes and directs each Administrative
Agent, Lender and each Issuing Lender to act as collateral sub-agent for the
Administrative Agents, Collateral Agent, the Lenders, the Issuing Lenders and
the other Secured Parties for purposes of the perfection of all security
interests and Liens with respect to the Collateral, including any Deposit
Accounts maintained by a Loan Party with, and cash and Cash Equivalents held
by, such Administrative Agent, Lender or such Issuing Lender, (iv) manage,
supervise and otherwise deal with the Collateral, (v) take such action as is
necessary or desirable to maintain the perfection and priority of the security
interests and Liens created or purported to be created by the Security
Documents and (vi) except as may be otherwise specifically restricted by the
terms hereof or of any other Loan Document, upon receipt of instructions from
the applicable Administrative Agent pursuant to the Intercreditor Agreement,
exercise all remedies given to the Administrative Agents, the Lenders, the
Issuing Lenders and the other Secured Parties with respect to the Collateral
under the Loan Documents relating thereto, applicable law or otherwise.
(b) Each of the Administrative Agents, the Lenders and the
Issuing Lenders hereby authorizes and directs the Collateral Agent (without any
further notice or consent) to, promptly release or subordinate any Lien as set
forth in Section 9 of the Intercreditor Agreement.
Article XIV
MISCELLANEOUS
Section 14.1 Amendments and Waivers.
(a) Except as otherwise expressly provided in this Agreement
or the Intercreditor Agreement, the Administrative Agents, on the one hand, and
the Company, on the other hand, may from time to time with the prior written
consent of the Required Lenders enter into written amendments, supplements or
modifications for the purpose of adding, deleting or modifying any provision of
any Loan Document or changing in any manner the rights, remedies, obligations
and duties of the parties thereto, and with the written consent of the Required
Lenders, the Administrative Agents, on behalf of the Lenders, may execute and
deliver a written instrument waiving, on such terms and conditions as may be
specified in such instrument, any of the requirements applicable to the Loan
Parties, as the case may be, party to any Loan Document, or any Default or
Event of Default and its consequences; provided, however, that:
(i) without the consent of any Lender, the Company and the
Administrative Agents may enter into any amendment necessary to
implement the terms of a Facilities Increase in accordance with the
terms of this Agreement (as in effect on the Closing Date);
(ii) with the consent of only the Multi-Currency
Administrative Agent and the Supermajority Multi-Currency Lenders and
the Company, the Multi-Currency Administrative Agent may amend,
supplement or otherwise modify or waive any of the terms and
provisions (and related definitions) related to the Borrowing Base and
any provisions (including advance rates) relating to the Maximum
Multi-Currency Availability;
(iii) with the consent of only the Multi-Currency
Administrative Agent and the Required Multi-Currency Lenders and the
Company, the Multi-Currency Administrative Agent may amend, supplement
or otherwise modify or waive any of the terms and provisions (and
related definitions) (A) under Article III (Revolving Credit
Sub-Facility), Article IV (Swing Line Sub-Facility), Article V (Letter
of Credit Sub-Facility) and Article VI (Local Loan Sub-Facility) and
any other provisions related solely to the borrowings (including any
conditions to such borrowings or the Facility Increase and increases
to interest rates and fees) and payment procedures under the
Multi-Currency Facility, (B) solely affecting the relative rights,
remedies, obligations and priorities among the Multi-Currency Lenders,
which does not adversely affect any Term Loan Lender and (C) related
to Section 11.1(b) prior to the occurrence of any Event of Default
arising thereunder (in each case, except to the extent any such
amendment, supplement, modification or waiver would result in an
increase of the Aggregate Multi-Currency Commitment, it being
understood that any Facility Increase permitted under this Agreement
as of the Closing Date does not constitute such increase);
(iv) with the consent of only the Term Loan Administrative
Agent and the Required Term Loan Lenders and the Company, the Term
Loan Administrative Agent may amend, supplement or otherwise modify or
waive any of the terms and provisions (and related definitions) (A)
under Article II (Term Loan Commitment) and any other provisions
related solely to the borrowings (including any conditions to such
borrowings and increases to interest rates and fees) and payment
procedures under the Term Loan Facility and (B) solely affecting the
relative rights, remedies, obligations and priorities among the Term
Loan Lenders, which does not adversely affect any Multi-Currency
Lender (in each case, except to the extent any such amendment,
supplement, modification or waiver would result in an increase of the
Aggregate Term Loan Commitment or the aggregate outstanding principal
amount of the Term Loans);
(v) (A) no amendment, waiver or consent shall, unless in
writing and signed by any Agent in addition to the Lenders required
above to take such action, affect the rights or duties of such Agent
under this Agreement or the other Loan Documents, (B) no amendment,
waiver or consent shall, unless in writing and signed by the Swing
Line Lender, Issuing Lender or Local Fronting Lender in addition to
the Lenders required above to take such action, affect the rights or
duties of the Swing Line Lender, Issuing Lender or Local Fronting
Lender, respectively, under this Agreement or the other Loan Documents
and (C) no amendment, waiver or consent shall, unless in writing and
signed by any Special Purpose Vehicle that has been granted an option
pursuant to Section 14.6(f), affect the grant or nature of such option
or the right or duties of such Special Purpose Vehicle hereunder;
(vi) no amendment, supplement or modification of, or waiver
or consent under, any of the Security Documents to which the
Collateral Agent is a party shall be effective unless in writing and
signed by the Collateral Agent (at the direction of the applicable
Administrative Agent or Lenders pursuant to the Intercreditor
Agreement) in addition to the Agents and Lenders required above to
take such action; and
(vii) the Administrative Agents may, with the consent of the
Company, amend, modify or supplement any Loan Document to cure any
ambiguity, typographical error, defect or inconsistency;
provided, further, that, except as otherwise expressly provided in this
Agreement or the Intercreditor Agreement, no such waiver, amendment, supplement
or modification shall be effective to, without the prior written consent, in
addition to the Lenders required above to take such action, of each Lender
directly affected thereby:
(viii) (A) modify the Commitment of such Lender or subject
such Lender to any additional obligation, (B) extend any scheduled
final maturity of any Loan owing to such Lender, (C) waive or reduce,
or postpone or cancel any scheduled date fixed for the payment of (it
being understood that any mandatory prepayment required under Section
7.3 does not constitute any scheduled date fixed for payments),
principal of or interest on any such Loan or any fees owing to such
Lender, (D) reduce, or release any Borrower from its obligations to
repay, any other Payment Obligation owed to such Lender or (E) consent
to the assignment or transfer by any Borrower of any of its rights and
obligations under this Agreement;
(ix) amend, modify or waive any provision of Section 7.4
(Application of Payments and Commitment Reductions), Section 7.15 (Pro
Rata Treatment and Payments) or Section 14.7 (Adjustments; Set-off);
(x) expressly subordinate any of the Payment Obligations or
Liens securing the Payment Obligations, except in accordance with this
Agreement and the Intercreditor Agreement;
(xi) (A) amend, modify or waive this Section 14.1 or any
other provision specifying the Agents, Lenders or group of Lenders
required for any amendment, modification or waiver thereof or (B)
change the respective percentages specified in the definition of
"Required Lenders," "Required Multi-Currency Lenders," or "Required
Term Loan Lenders"; or
(xii) release (A) all or substantially all of the Collateral
provided for in the Security Documents, (B) the guarantee obligations
of Revlon provided for in any Security Document or (C) the guarantee
obligations of all or substantially all of the Guarantors (other than
Revlon) provided for in the Security Documents.
(b) Any waiver, amendment, supplement or modification
pursuant to this Section 14.1 shall apply equally to each of the Lenders and
shall be binding upon the Lenders and all future holders of any of the Loans,
the Notes, the L/C Reimbursement Obligations and all other Payment
Obligations. In the case of such waiver, the parties to the Loan Documents,
the Lenders, the Collateral Agent and the Administrative Agents shall be
restored to their former positions and rights hereunder and under the Notes
and the Security Documents, and any Default or any Event of Default waived
shall, to the extent provided in such waiver, be deemed to be cured and not
continuing; but, no such waiver shall extend to any subsequent or other
Default or Event of Default, or impair any right consequent thereon. The
Administrative Agents shall, as soon as practicable, furnish a copy of each
such amendment, supplement, modification or waiver to each Lender.
(c) To the extent (a) the consent of any Lender in its
capacity as a Multi-Currency Lender or a Term Loan Lender, as applicable, is
required, but not obtained (any such Lender whose consent is not obtained as
described in this Section 14.1(c) being referred to as a "Non-Consenting
Lender") in connection with any proposed amendment, modification, supplement or
waiver (a "Proposed Change") and (b) the applicable Administrative Agent shall
have consented to such Proposed Change, at the request of the Company and with
the consent of such Administrative Agent (in its sole discretion exercised
reasonably), any Eligible Assignee reasonably acceptable to such Administrative
Agent (which Eligible Assignee may be the Lender acting as such Administrative
Agent and shall have consented to such Proposed Change) shall have the right
(but not the obligation) to purchase from such Non-Consenting Lender, and such
Non-Consenting Lender shall, upon the request of such Administrative Agent,
sell and assign to such Eligible Assignee all of (i) the Multi-Currency
Commitments, the Multi-Currency Loans and the Aggregate Actual Outstanding
Multi-Currency Extensions of Credit or (ii) the Term Loan Commitments and the
Term Loans, as the case may be, of such Non-Consenting Lender for an amount
equal to the principal balance of all applicable Loans held by such
Non-Consenting Lender under clause (i) or (ii) above and all accrued and unpaid
interest and fees with respect thereto through the date of such sale and
purchase (the "Purchase Amount"); provided, however, that such sale and
purchase (and the corresponding assignment) shall not be effective until (A)
such Administrative Agent shall have received from such Eligible Assignee an
agreement in form and substance satisfactory to such Administrative Agent and
the Company whereby such Eligible Assignee shall agree to be bound by the terms
hereof, (B) such Non-Consenting Lender shall have received the Purchase Amount
from such Eligible Assignee and (C) in the case of clause (ii) above, the
Company shall have paid such Non-Consenting Lender an amount equal to the
Prepayment Fee, if any, on the aggregate outstanding principal amount of all
Term Loans subject to such sale and purchase (which sale and purchase shall
constitute a prepayment of such Term Loans). Each Lender agrees that, if it
becomes a Non-Consenting Lender, it shall execute and deliver to the applicable
Administrative Agent (x) an Assignment and Acceptance to evidence such sale and
assignment and (y) to the extent the Commitments and Loans subject to such
Assignment and Acceptance are evidenced by a Note or Notes, such Note or Notes;
provided, however, that the failure of any Non-Consenting Lender to execute an
Assignment and Acceptance or deliver such Note or Notes shall not render such
sale and purchase (and the corresponding assignment) invalid.
Section 14.2 Notices. (a) Addresses for Notices. All notices,
demands, requests, consents and other communications provided for in this
Agreement or any other Loan Document shall be given in writing, or by any
telecommunication device capable of creating a written record (including
electronic mail), and addressed to the party to be notified as follows:
(i) if to the Company:
Revlon Consumer Products Corporation
237 Park Avenue
New York, New York 10017
Attention: Senior Vice President and Treasurer
Telecopy: (212) 527-5530
E-Mail Address: steven.schiffman@revlon.com
with a copy (other than of items relating to funding
and payments) to:
Revlon Consumer Products Corporation
237 Park Avenue
New York, New York 10017
Attention: Executive Vice President, Chief Legal
Officer and General Counsel
Telecopy: (212) 527-5693
E-Mail Address: robert.kretzman@revlon.com
(ii) if to any Lender, at its lending office specified
opposite its name on Schedule I or on the signature page of any
applicable Assignment and Acceptance;
(iii) if to any Issuing Lender, at the address set forth
under its name on Schedule I; and
(iv) if to the Administrative Agents or the Swing Line
Lender:
Citicorp USA, Inc.
388 Greenwich Street, 19th Floor
New York, New York 10013
Attention: James J. McCarthy
Telecopy no: (212) 816-2613
E-Mail Address: james.j.mccarthy@citigroup.com
with a copy (other than of items relating to
funding and payments) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153-0119
Attention: Daniel S. Dokos
Telecopy no: (212) 310-8007
E-Mail Address: daniel.dokos@weil.com
or at such other address as shall be notified in writing (x) in the case of the
Company, the Administrative Agents and the Swing Line Lender, to the other
parties and (y) in the case of all other parties, to the Company and the
Administrative Agents.
(b) Effectiveness of Notices. All notices, demands, requests,
consents and other communications described in clause (a) above shall be
effective (i) if delivered by hand, including any overnight courier service,
upon delivery, (ii) if delivered by first class, postage prepaid mail, five
days after deposited in the mails, (iii) except to any Loan Party, if delivered
by posting to an Approved Electronic Platform, an Internet website or a similar
telecommunication device requiring that a user have prior access to such
Approved Electronic Platform, website or other device, when such notice,
demand, request, consent and other communication shall have been made generally
available on such Approved Electronic Platform, Internet website or similar
device to the class of Person being notified (regardless of whether any such
Person must accomplish, and whether or not any such Person shall have
accomplished, any action prior to obtaining access to such items, including
registration, disclosure of contact information, compliance with a standard
user agreement or undertaking a duty of confidentiality) and (iv) if delivered
by electronic mail or any other telecommunications device, when transmitted to
an electronic mail address (or by another means of electronic delivery) as
provided in clause (a) above; provided, however, that notices and
communications to the Administrative Agents pursuant to Article II, Article
III, Article IV, Article V, Article VI, Article VII and Article XIII shall not
be effective until received by the Administrative Agents.
(c) Use of Electronic Platform. Notwithstanding clauses (a)
and (b) above (unless either Administrative Agent requests that the provisions
of clauses (a) and (b) above be followed) and any other provision in this
Agreement or any other Loan Document providing for the delivery of, any
Approved Electronic Communication by any other means, the Loan Parties shall
deliver all Approved Electronic Communications to each Administrative Agent by
properly transmitting such Approved Electronic Communications electronically
(in a format acceptable to the Administrative Agents) to
oploanswebadmin@citigroup.com or such other electronic mail address (or similar
means of electronic delivery) as such Administrative Agent may notify the
Company. Nothing in this clause(c) shall prejudice the right of such
Administrative Agent or any Lender or Issuer to deliver any Approved Electronic
Communication to any Loan Party in any manner authorized in this Agreement.
Section 14.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative Agents,
the Collateral Agent or any Lender, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 14.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes.
Section 14.5 Payment of Expenses. (a) The Company shall, and
shall cause each other Loan Party to, upon demand, pay, or reimburse each
Agent, for all of such Agent's reasonable and invoiced internal audit,
appraisal and valuation costs and expenses and all reasonable and invoiced
out-of-pocket costs and expenses of every type and nature (including the
reasonable fees, expenses and disbursements of the Agents' counsel, Weil,
Gotshal & Manges LLP (or any other primary counsel selected by such Agent),
local legal counsel, auditors, accountants, appraisers, printers, insurance and
environmental advisors, and other consultants and agents) incurred by such
Agent in connection with any of the following: (i) each Administrative Agent's
audit and investigation of the Company and its Subsidiaries in connection with
the preparation, negotiation or execution of any Loan Document or such
Administrative Agent's periodic audits of the Company or any of its
Subsidiaries, as the case may be, (ii) the preparation, negotiation, execution
or interpretation of this Agreement (including, without limitation, the
satisfaction or attempted satisfaction of any condition set forth in Article
IX), any Loan Document or any proposal letter or commitment letter issued in
connection therewith, or the making of the Loans hereunder, (iii) the creation,
perfection or protection of the Liens under any Loan Document (including any
reasonable fees, disbursements and expenses for local counsel in various
jurisdictions as contemplated by the Agreement), (iv) the ongoing
administration of this Agreement and the Loans, including consultation with
attorneys in connection therewith and with respect to each Agent's rights and
responsibilities hereunder and under the other Loan Documents, (v) the
protection, collection or enforcement of any Payment Obligation or the
enforcement of any Loan Document, (vi) the commencement, defense or
intervention in any court proceeding relating in any way to the Payment
Obligations, any Loan Party, any of the Company's Subsidiaries, this Agreement
or any other Loan Document, (vii) the response to, and preparation for, any
subpoena or request for document production with which such Agent is served or
deposition or other proceeding in which such Agent is called to testify, in
each case, relating in any way to the Payment Obligations, any Loan Party, any
of the Company's Subsidiaries, this Agreement or any other Loan Document or
(viii) any amendment, consent, waiver, assignment, restatement, or supplement
to any Loan Document or the preparation, negotiation and execution of the same.
(b) The Company further agrees to, and to cause each other
Loan Party to, pay or reimburse each of the Agents and each of the Lenders and
Issuing Lenders upon demand for all out-of-pocket costs and expenses, including
reasonable and invoiced attorneys' fees (including costs of counsel and costs
of settlement), incurred by such Agents, such Lenders or such Issuing Lenders
in connection with any of the following: (i) in enforcing any Loan Document or
Payment Obligation or any security therefor or exercising or enforcing any
other right or remedy available by reason of an Event of Default, (ii) in
connection with any refinancing or restructuring of the credit arrangements
provided hereunder in the nature of a "work-out" or in any insolvency or
bankruptcy proceeding, (iii) in commencing, defending or intervening in any
litigation or in filing a petition, complaint, answer, motion or other
pleadings in any legal proceeding relating to the Payment Obligations, any Loan
Party, any of the Company's Subsidiaries and related to or arising out of the
transactions contemplated hereby or by any other Loan Document or (iv) in
taking any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) described in clause (i), (ii) or (iii) above.
(c) Any obligation of the Company or any other Loan Party
pursuant to this Section 14.5 shall survive Full Satisfaction of the Payment
Obligations.
Section 14.6 Assignments and Participations; Binding Effect.
(a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible
Assignees all or a portion of its rights and obligations hereunder (including
all of its rights and obligations with respect to the Term Loans, the Revolving
Credit Loans, the Swing Line Loans, the Local Loans, the Acceptances and the
Letters of Credit); provided, however, that (i) if any such assignment shall be
of the assigning Lender's Aggregate Actual Outstanding Multi-Currency
Extensions of Credit and Multi-Currency Commitments, such assignment shall
cover the same percentage of such Lender's Aggregate Actual Outstanding
Multi-Currency Extensions of Credit and Multi-Currency Commitments, (ii) the
aggregate amount being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event (if less than the assignor's entire interest) be less than
$1,000,000 or an integral multiple of $1,000,000 in excess thereof in the case
of Term Loans, and $5,000,000 or an integral multiple of $1,000,000 in excess
thereof in the case of Multi-Currency Commitments, except, in either case, (A)
with the consent of the Company and the applicable Administrative Agent or (B)
if such assignment is being made to a Lender or an Affiliate or Related Fund of
such Lender and (iii) if such Eligible Assignee is not, prior to the date of
such assignment, a Lender or an Affiliate or Related Fund of a Lender, such
assignment shall be subject to the prior consent of the applicable
Administrative Agent and the Company (which consents shall not be unreasonably
withheld or delayed); and provided, further, that, notwithstanding any other
provision of this Section 14.6, the consent of the Company shall not be
required (x) for any assignment occurring when any Event of Default shall have
occurred and be continuing and (y) for any assignment by an Administrative
Agent or any Affiliate or Related Fund of an Administrative Agent of the
Commitments or Loans held on the Closing Date by an Administrative Agent or any
such Affiliate or Related Fund if such assignment is made as part of the
primary syndication of the Term Loan Facility and the Multi-Currency Facility.
(b) The parties to each such assignment shall execute and
deliver to the applicable Administrative Agent, for its acceptance and
recording, an Assignment and Acceptance, together with any Note (if the
assigning Lender's Loans are evidenced by a Note) subject to such assignment.
Upon the execution, delivery, acceptance and recording of any Assignment and
Acceptance and, other than in respect of assignments made pursuant to Section
14.1(c), the receipt by the applicable Administrative Agent from the assignee
of an assignment fee in the amount of $3,500, from and after the effective date
specified in such Assignment and Acceptance, (i) the assignee thereunder shall
become a party hereto and, to the extent that rights and obligations under the
Loan Documents have been assigned to such assignee pursuant to such Assignment
and Acceptance, have the rights and obligations (including without limitation
the obligations under Section 7.12(c)) of a Lender hereunder; provided,
however, that no Transferee (including an assignee that is already a Lender
hereunder at the time of the assignment) shall be entitled to receive any
greater amount pursuant to Section 7.12 than that to which the assignor Lender
would have been entitled to receive had no such assignment occurred, (ii) the
Notes (if any) corresponding to the Loans assigned thereby shall be transferred
to such assignee by notification in the Register and (iii) the assignor
thereunder shall, to the extent that rights and obligations under this
Agreement have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (except for those surviving the payment in full of the
Payment Obligations) and be released from its obligations under the Loan
Documents, other than those relating to events or circumstances occurring prior
to such assignment (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under the Loan Documents, such Lender shall cease to be a party hereto). Solely
for purposes of calculating the assignment fee under this Section 14.6(b),
multiple assignments on the same date by a Lender to its Affiliates or Related
Funds shall constitute one assignment.
(c) Each Administrative Agent shall maintain at its address
referred to in Section 14.2 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recording of the names and
addresses of the Term Loan Lenders and the Multi-Currency Lenders, as
applicable, and the applicable Commitments of and principal amount of and
interest with respect to the Loans and L/C Obligations owing to each applicable
Lender from time to time (each, a "Register"). Any assignment pursuant to this
Section 14.6 shall not be effective until such assignment is recorded in such
Register. The entries in each Register shall be conclusive and binding for all
purposes, absent manifest error, and the Loan Parties, the Administrative
Agents and the Lenders may treat each Person whose name is recorded in such
Register as a Lender for all purposes of this Agreement. All information
contained in each Register as to any Lender shall be available for inspection
by the Company, the Administrative Agents or such Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Notwithstanding anything to the contrary contained
herein, the Loans (including the Notes evidencing such Loans) and L/C
Obligations are registered obligations and the right, title, and interest of
the Lenders and their assignees in and to such Loans and L/C Obligations shall
be transferable only upon notation of such transfer in the applicable Register.
A Note shall only evidence the Lender's or an assignee's right, title and
interest in and to the related Loan, and in no event is any such Note to be
considered a bearer instrument or obligation. This Section 14.6 shall be
construed so that the Loans and L/C Obligations are at all times maintained in
"registered form" within the meaning of Sections 163(f), 871(h)(2) and
881(c)(2) of the Internal Revenue Code and any related regulations (or any
successor provisions of the Internal Revenue Code or such regulations). Solely
for purposes of this and for tax purposes only, the Administrative Agents shall
act as the Company's agent for purposes of maintaining such notations of
transfer in each Register.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, the applicable Administrative Agent
shall, if such Assignment and Acceptance has been completed, (i) accept such
Assignment and Acceptance, (ii) record or cause to be recorded the information
contained therein in the applicable Register and (iii) give prompt notice
thereof to the Company. Within five Business Days after its receipt of such
notice, the Company, at its own expense, shall, if requested by such assignee,
execute and deliver to the applicable Administrative Agent, new Notes to the
order of such assignee in an amount equal to the Loans and Commitments assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Lender
has surrendered any Note for exchange in connection with the assignment and has
retained Loans or Commitments hereunder, new Notes to the order of the
assigning Lender in an amount equal to the Loans or Commitments retained by it
hereunder. Such new Notes shall be dated the same date as the surrendered
Notes.
(f) In addition to the other assignment rights provided in
this Section 14.6, each Lender may do each of the following:
(i) grant to a Special Purpose Vehicle the option to make all
or any part of any Loan that such Lender would otherwise be required
to make hereunder and the exercise of such option by any such Special
Purpose Vehicle and the making of Loans pursuant thereto shall satisfy
(once and to the extent that such Loans are made) the obligation of
such Lender to make such Loans thereunder, provided, however, that (x)
nothing herein shall constitute a commitment or an offer to commit by
such a Special Purpose Vehicle to make Loans hereunder and no such
Special Purpose Vehicle shall be liable for any indemnity or other
Payment Obligation (other than the making of Loans for which such
Special Purpose Vehicle shall have exercised an option, and then only
in accordance with the relevant option agreement) and (y) such
Lender's obligations under the Loan Documents shall remain unchanged,
such Lender shall remain responsible to the other parties for the
performance of its obligations under the terms of this Agreement and
shall remain the holder of the Payment Obligations for all purposes
hereunder; and
(ii) assign, as collateral or otherwise, any of its rights
under this Agreement, whether now owned or hereafter acquired
(including rights to payments of principal or interest on the Loans),
to (A) without notice to or consent of the Administrative Agents or
the Company, any Federal Reserve Bank (pursuant to Regulation A of the
Federal Reserve Board) and (B) without consent of the Administrative
Agents or the Company, (1) any holder of, or trustee for the benefit
of, the holders of such Lender's securities and (2) any Special
Purpose Vehicle to which such Lender has granted an option pursuant to
clause (i) above;
provided, however, that no such assignment or grant shall release such Lender
from any of its obligations hereunder except as expressly provided in clause
(i) above and except, in the case of a subsequent foreclosure pursuant to an
assignment as collateral, if such foreclosure is made in compliance with the
other provisions of this Section 14.6 other than this clause (f) or clause (g)
below. Each party hereto acknowledges and agrees that, prior to the date that
is one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any such Special Purpose Vehicle, such party
shall not institute against, or join any other Person in instituting against,
any Special Purpose Vehicle that has been granted an option pursuant to this
clause (f) any bankruptcy, reorganization, insolvency or liquidation proceeding
(such agreement shall survive the payment in full of the Payment Obligations).
The terms of the designation of, or assignment to, such Special Purpose Vehicle
shall not restrict such Lender's ability to, or grant such Special Purpose
Vehicle the right to, consent to any amendment or waiver to this Agreement or
any other Loan Document or to the departure by the Company from any provision
of this Agreement or any other Loan Document without the consent of such
Special Purpose Vehicle except, as long as the Administrative Agents and the
Lenders, Issuing Lenders and other Secured Parties shall continue to, and shall
be entitled to continue to, deal solely and directly with such Lender in
connection with such Lender's obligations under this Agreement, to the extent
any such consent would reduce the principal amount of, or the rate of interest
on, any Payment Obligations, amend this clause (f) or postpone any scheduled
date of payment of such principal or interest. Each Special Purpose Vehicle
shall be entitled to the benefits of Section 7.9(d), 7.10 and 7.12 as if it
were such Lender; provided, however, that anything herein to the contrary
notwithstanding, the Company shall not, at any time, be obligated to make under
Section 7.9(d), 7.10 and 7.12 to any such Special Purpose Vehicle and any such
Lender any payment in excess of the amount the Company would have been
obligated to pay to such Lender in respect of such interest if such Special
Purpose Vehicle had not been assigned the rights of such Lender hereunder;
provided, further, that any such Special Purpose Vehicle shall have complied
with the requirements of Section 7.12.
(g) Each Lender may sell participations to one or more
Persons in or to all or a portion of its rights and obligations under the Loan
Documents (including all its rights and obligations with respect to Term Loans,
the Revolving Credit Loans, the Swing Line Loans, the Local Loans, the
Acceptances and the Letters of Credit). The terms of such participation shall
not, in any event, require the participant's consent to any amendments, waivers
or other modifications of any provision of any Loan Documents, the consent to
any departure by any Loan Party therefrom, or to the exercising or refraining
from exercising any powers or rights such Lender may have under or in respect
of the Loan Documents (including the right to enforce the obligations of the
Loan Parties), except if any such amendment, waiver or other modification or
consent would (i) reduce the amount, or postpone any date fixed for the payment
of principal, interest or fees payable to such participant under the Loan
Documents, to which such participant would otherwise be entitled under such
participation or (ii) result in the release of all or substantially all of the
Collateral other than in accordance with Section 9 of the Intercreditor
Agreement. In the event of the sale of any participation by any Lender, (w)
such Lender's obligations under the Loan Documents shall remain unchanged, (x)
such Lender shall remain solely responsible to the other parties for the
performance of such obligations, (y) such Lender shall remain the holder of
such Payment Obligations for all purposes of this Agreement and (z) the
Company, the Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Each participant shall be entitled to the
benefits of Section 7.9(d), 7.10 and 7.12 as if it were a Lender; provided,
however, that notwithstanding anything herein to the contrary, the Company
shall not, at any time, be obligated to make any payment under Section 7.9(d),
7.10 and 7.12 to the participants in the rights and obligations of any Lender
(together with such Lender) in excess of the amount the Company would have been
obligated to pay to such Lender in respect of such interest had such
participation not been sold; provided, further, that any such participant shall
have complied with the requirements of Section 7.12.
(h) Any Issuing Lender may at any time assign its rights and
obligations hereunder to any other Issuing Lender by an instrument in form and
substance satisfactory to the Company, the Multi-Currency Administrative Agent,
such Issuing Lender and such other Issuing Lender. If any Issuing Lender ceases
to be an Issuing Lender hereunder by virtue of any assignment made pursuant to
this Section 14.6, then, as of the effective date of such cessation, such
Issuing Lender's obligations to issue Letters of Credit pursuant to Article V
shall terminate and such Issuing Lender shall be an Issuing Lender hereunder
only with respect to outstanding Letters of Credit issued prior to such date.
(i) This Agreement shall become effective when it shall have
been executed by the Company, the Administrative Agents and the Collateral
Agent and when the Administrative Agents shall have been notified by each
Lender and Issuing Lender that such Lender or Issuing Lender has executed it
and thereafter shall be binding upon and inure to the benefit of the Borrowers,
the Administrative Agents, the Collateral Agent and each Lender and Issuing
Lender and, in each case, their respective successors and assigns; provided,
however, that no Borrower shall have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
Section 14.7 Adjustments; Set-off. (a) On the date of
occurrence of any Event of Default specified in clause (i), (ii) or (iii) of
Section 12(j), each Lender shall be deemed to have purchased an interest in
the Payment Obligations owing to each other Lender (and, to the extent
necessary after giving effect to any actual recoveries on such Payment
Obligations, shall actually fund such purchase) such that, after giving effect
to all such purchases or deemed purchases, each Lender is owed directly or
through such purchase or deemed purchase the portion of the aggregate amount
of Payment Obligations then outstanding with respect to each of the Aggregate
Term Loan Commitment and the Aggregate Multi-Currency Commitment equal to such
Lender's ratable share of all Payment Obligations then outstanding with
respect to each such Aggregate Commitment. Each Lender hereby acknowledges and
agrees that its obligation to purchase such Payment Obligations in accordance
with the provisions of this Section 14.7(a) shall be irrevocable and
unconditional.
(b) Unless an Event of Default has occurred and is
continuing, if any Syndicated Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of any of its Loans or L/C Reimbursement
Obligations owing to it under any Commitment, or interest thereon, pursuant to
a guarantee or otherwise, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off or otherwise), in a greater proportion
than any such payment to and collateral received by any other Syndicated
Lender, if any, in respect of such other Lender's Loans or L/C Reimbursement
Obligations, as the case may be, owing to it under such Commitment or interest
thereon, such benefitted Lender shall purchase for cash from the other
Syndicated Lenders such portion of each such other Syndicated Lender's similar
Loans or L/C Reimbursement Obligations, or shall provide such other Syndicated
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Syndicated
Lenders which hold such Commitment; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. Each
Borrower agrees that each Lender so purchasing a portion of another Lender's
Loans or L/C Reimbursement Obligations may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such purchasing Lender were the direct holder of such portion.
After the delivery of a Notice of Actionable Default and prior to the
withdrawal of all Notices of Actionable Default then pending, all payments or
Collateral (or proceeds thereof) received by any Agent, Lender or Issuing
Lender in contravention of this Agreement, the Intercreditor Agreement or any
other Loan Document, shall be segregated and held in trust and forthwith paid
over to the Collateral Agent to be applied pursuant to Section 7.15(h).
(c) Subject to the Intercreditor Agreement, in addition to
any rights and remedies of the Syndicated Lenders provided by law, upon both
the occurrence of an Event of Default and acceleration of the Payment
Obligations owing in connection with this Agreement, each Syndicated Lender and
each of its Affiliates shall have the right, without prior notice to the
Company, any such notice being expressly waived to the extent permitted by
applicable law, to set off and apply against any indebtedness, whether matured
or unmatured, of the Company to such or any other Syndicated Lender or such
Affiliate any amount owing from such Syndicated Lender or such Affiliate to the
Company at, or at any time after, the happening of both of the above mentioned
events, and such right of set-off may be exercised by such Syndicated Lender or
such Affiliate against the Company or against any trustee in bankruptcy, debtor
in possession, assignee for the benefit of creditors, receiver, custodian or
execution, judgment or attachment creditor of the Company, or against anyone
else claiming through or against the Company or such trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors, receivers, or
execution, judgment or attachment creditor, notwithstanding the fact that such
right of set-off shall not have been exercised by such Syndicated Lender or
such Affiliate prior to the making, filing or issuance, or service upon such
Syndicated Lender or such Affiliate of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or
warrant. Each Syndicated Lender agrees promptly to notify the Company and the
Administrative Agents after any such set-off and application made by such
Syndicated Lender or any of its Affiliates; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application.
(d) In addition to any rights and remedies of the Local
Fronting Lenders provided by law, upon both the occurrence of an Event of
Default and acceleration of the obligations owing in connection with this
Agreement, each Local Fronting Lender shall have the right, without prior
notice to any Borrower, any such notice being expressly waived to the extent
permitted by applicable law, to set off and apply against any indebtedness,
whether matured or unmatured, of such Borrower to such Local Fronting Lender
any amount owing from such Local Fronting Lender to such Borrower at, or at any
time after, the happening of both of the above mentioned events, and such right
of set-off may be exercised by such Local Fronting Lender against such Borrower
or against any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, custodian or execution, judgment or attachment
creditor of such Borrower, or against anyone else claiming through or against
such Borrower or such trustee in bankruptcy, debtor in possession, assignee for
the benefit of creditors, receivers, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off shall not have
been exercised by such Local Fronting Lender prior to the making, filing or
issuance, or service upon such Local Fronting Lender of, or of notice of, any
such petition, assignment for the benefit of creditors, appointment or
application for the appointment of a receiver, or issuance of execution,
subpoena, order or warrant. Each Local Fronting Lender agrees promptly to
notify such Borrower and the Administrative Agents after any such set-off and
application made by such Local Fronting Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.
Section 14.8 Delegation by each Local Borrowing Subsidiary.
Each Local Borrowing Subsidiary hereby irrevocably designates and appoints the
Company as the agent of such Local Borrowing Subsidiary under this Agreement
and the other Loan Documents for the purpose of giving notices and taking other
actions delegated to such Local Borrowing Subsidiary pursuant to the terms of
this Agreement and the other Loan Documents. In furtherance of the foregoing,
each Local Borrowing Subsidiary hereby irrevocably grants to the Company such
Local Borrowing Subsidiary's power-of-attorney, and hereby authorizes the
Company, to act in place of such Local Borrowing Subsidiary with respect to
matters delegated to such Local Borrowing Subsidiary pursuant to the terms of
this Agreement and the other Loan Documents and to take such other actions as
are reasonably incidental thereto. Each Local Borrowing Subsidiary hereby
further acknowledges and agrees that the Company shall receive all notices to
such Local Borrowing Subsidiary for all purposes of this Agreement. The Company
hereby agrees to provide prompt notice to the relevant Local Borrowing
Subsidiary of any notices received and all action taken by the Company under
this Agreement and the other Loan Documents on behalf of such Local Borrowing
Subsidiary.
Section 14.9 Judgment. The Payment Obligations of each
Borrower in respect of each Local Loan and Acceptance reimbursement obligation
due to any party hereto in Dollars (including, without limitation, by virtue of
any conversion of a Local Loan or Acceptance from a Denomination Currency into
Dollars pursuant to the provisions of Section 6.4) or any holder of any bond
which is denominated in Dollars, shall, notwithstanding any judgment in a
currency (the "judgment currency") other than Dollars, be discharged only to
the extent that on the Business Day following receipt by such party or such
holder (as the case may be) of any sum adjudged to be so due in the judgment
currency such party or such holder (as the case may be) may in accordance with
normal banking procedures purchase Dollars with the judgment currency; if the
amount of Dollars so purchased is less than the sum originally due to such
party or such holder (as the case may be) in Dollars, such Borrower agrees, as
a separate obligation and notwithstanding any such judgment, to indemnify such
party or such holder (as the case may be) against such loss, and if the amount
of Dollars so purchased exceeds the sum originally due to any party to this
Agreement or any holder of Notes (as the case may be), such party or such
holder (as the case may be), agrees to remit to such Borrower, such excess.
Section 14.10 Intercreditor Agreement. Each Lender hereby
acknowledges that it has fully reviewed the Intercreditor Agreement and, by its
execution of this Agreement, hereby consents to the execution and delivery of
the Intercreditor Agreement by the Term Loan Administrative Agent, the
Multi-Currency Administrative Agent and the Collateral Agent (in their
respective capacities as Agents hereunder and as agent for the holders of the
Designated Eligible Obligations) and agrees to comply with the terms thereof
(which terms are incorporated herein by reference in their entirety) as if such
Lender were a direct signatory thereto.
Section 14.11 Severability; Conflicts. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. In the event
of any conflict between the terms of this Agreement and any other Loan Document
(except for the Intercreditor Agreement), the terms of this Agreement shall
govern. In the event of any conflict between the terms of the Intercreditor
Agreement and this Agreement or any other Loan Document, the Intercreditor
Agreement shall govern.
Section 14.12 Counterparts; Confidentiality. (a) This
Agreement may be executed by one or more of the parties to this Agreement on
any number of separate counterparts and all of such counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an
executed signature page of this Agreement by facsimile transmission or by
posting on the Approved Electronic Platform shall be as effective as delivery
of a manually executed counterpart hereof. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company and the
Administrative Agents.
(b) Each Lender agrees that it will not disclose Confidential
Information (as defined below) to any Person other than (i) as may be consented
to by the Company, (ii) as may be required by law or pursuant to legal process
and (iii) to prospective participants and Transferees and those of such
Lender's directors, officers, employees, examiners and professional advisors
who have a need to know the Confidential Information in accordance with
customary banking practices and who receive the Confidential Information having
been made aware of the restrictions of this Section 14.12(b). As used herein,
the term "Confidential Information" means all information contained in
materials relating to the Company and its Subsidiaries provided to the Lenders
by the Company or its representatives or agents other than (x) information
which is at the time so provided or thereafter becomes generally available to
the public other than as a result of a disclosure by one or more Lenders, (y)
information which was available to any Lender prior to its disclosure to the
Lenders by the Company, its representatives or agents and (z) information which
becomes available to one or more Lenders from a source other than the Company,
its representatives or agents.
Section 14.13 Submission To Jurisdiction; Waivers. (a) Each
Local Borrowing Subsidiary hereby irrevocably and unconditionally submits to
the non-exclusive jurisdiction of any New York state or federal court sitting
in the City of New York and any competent court of the jurisdiction under the
laws of which such Local Borrowing Subsidiary is organized (the "local
court"), and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, the Notes or any Draft. Each
Local Borrowing Subsidiary hereby irrevocably and unconditionally agrees that
all claims in respect of such action or proceeding may be heard and determined
in such New York state court or local court or, to the extent permitted by
law, in such federal court. Each Local Borrowing Subsidiary hereby irrevocably
and unconditionally waives, to the fullest extent it may effectively do so,
any defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court and any right of jurisdiction on account of the
place of residence or domicile of such Local Borrowing Subsidiary. Each Local
Borrowing Subsidiary hereby irrevocably and unconditionally appoints the
Company as its agent to receive on behalf of such Local Borrowing Subsidiary
and its property service of copies of the summons and complaint and any other
process which may be served in any such action or proceeding in any such New
York state or federal court. In any such action or proceeding in such New York
state or federal court sitting in the City of New York, such service may be
made on such Local Borrowing Subsidiary by delivering a copy of such process
to such Local Borrowing Subsidiary in care of the Company at the Company's
address listed in Section 14.2 and by depositing a copy of such process in the
mails by certified or registered air mail, addressed to such Local Borrowing
Subsidiary (such service to be effective upon such receipt by the Company and
the depositing of such process in the mails as aforesaid). Each Local
Borrowing Subsidiary hereby irrevocably and unconditionally authorizes and
directs the Company to accept such service on its behalf. Each Local Borrowing
Subsidiary hereby agrees that, to the fullest extent permitted by applicable
law, a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(b) The Company hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement or any other Loan Document to
which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United
States for the Southern District of New York, and appellate courts
from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives trial by jury and any objection that
it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or claim the
same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to it at its address set forth in Section 14.2 or at such
other address of which the Administrative Agents shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
(c) Each Borrower, each Agent and each Lender hereby
irrevocably and unconditionally waives trial by jury in any legal
action or proceeding referred to in clause (a) above.
Section 14.14 Acknowledgements. Each Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) none of any Agent, the Arranger or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between each such Agent, Arranger and Lenders, on one hand, and
such Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among such Borrower and the Lenders.
Section 14.15 USA PATRIOT Act. Each Lender hereby notifies
each of the Borrowers that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies each
Borrower, which information includes the name and address of each Borrower and
other information that will allow such Lender to identify each Borrower in
accordance with the Act.
Section 14.16 Governing Law. This Agreement shall be governed
by, and construed and interpreted in accordance with, the law of the State of
New York.
Section 14.17 Indemnities. (a) The Company agrees to, and
shall cause each other Loan Party to, indemnify and hold harmless each Agent,
the Arranger, each Lender and each Issuing Lender and each of their respective
Affiliates, and each of the directors, officers, employees, agents, trustees,
representatives, attorneys, consultants and advisors of or to any of the
foregoing (including those retained in connection with the satisfaction or
attempted satisfaction of any condition set forth in Article IX) (each such
Person being an "Indemnitee") from and against any and all claims, damages,
liabilities, obligations, losses, penalties, actions, judgments, suits, costs,
disbursements and expenses, joint or several, of any kind or nature (including
reasonable fees, disbursements and expenses of financial and legal advisors to
any such Indemnitee) that may be imposed on, incurred by or asserted against
any such Indemnitee in connection with or arising out of any investigation,
litigation or proceeding, whether or not such investigation, litigation or
proceeding is brought by any such Indemnitee or any of its directors, security
holders or creditors or any such Indemnitee, director, security holder or
creditor is a party thereto, whether direct, indirect, or consequential and
whether based on any federal, state or local law or other statutory
regulation, securities or commercial law or regulation, or under common law or
in equity, or on contract, tort or otherwise, in any manner relating to or
arising out of this Agreement, any other Loan Document, any Payment
Obligation, any Letter of Credit, or any act, event or transaction related or
attendant to any thereof, or the use or intended use of the proceeds of the
Loans or Letters of Credit or in connection with any investigation of any
potential matter covered hereby (collectively, the "Indemnified Matters");
provided, however, that the Company shall not have any liability under this
Section 14.17 to an Indemnitee with respect to any Indemnified Matter to the
extent such liability has resulted from the gross negligence or willful
misconduct of that Indemnitee, as determined by a court of competent
jurisdiction in a final non-appealable judgment or order; provided, further,
that the Company shall not be required to reimburse the Indemnitees for the
fees and expenses of more than one joint counsel for the Administrative Agents
and the Collateral Agent and one joint counsel for the other Indemnitees
unless such representation shall result in a conflict of interest among the
Indemnitees. Without limiting the foregoing, "Indemnified Matters" include (i)
all Environmental Liabilities and Costs arising from or connected with the
past, present or future operations of the Company or any of its Subsidiaries
involving any property subject to a Security Document, or damage to real or
personal property or natural resources or harm or injury alleged to have
resulted from any Release of Hazardous Materials on, upon or into such
property or any contiguous real estate, (ii) any costs or liabilities incurred
in connection with any Remedial Action concerning the Company or any of its
Subsidiaries, (iii) any costs or liabilities incurred in connection with any
Lien in favor of any Governmental Authority for Environmental Liabilities and
Costs and (iv) any costs or liabilities incurred in connection with any other
matter under any Environmental Law, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (49 U.S.C. ss. 9601 et seq.)
and applicable state property transfer laws, whether, with respect to any such
matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a
mortgagee in possession, the successor in interest to the Company or any of
its Subsidiaries, or the owner, lessee or operator of any property of the
Company or any of its Subsidiaries by virtue of foreclosure, except, with
respect to those matters referred to in clauses (i), (ii), (iii) and (iv)
above, to the extent (x) incurred following foreclosure by the Collateral
Agent, at the direction of the Administrative Agents, any Lender or any
Issuing Lender, or any Agent, any Lender or any Issuing Lender having become
the successor in interest to the Company or any of its Subsidiaries and (y) to
the extent attributable to acts of the Agents, such Lender or such Issuing
Lender or any agent on behalf of such Agent, such Lender or such Issuing
Lender.
(b) The Company shall, and shall cause each other Loan Party
to, indemnify the Agents, the Lenders and each Issuing Lenders for, and hold
the Agents, the Lenders and each Issuing Lender harmless from and against, any
and all claims for brokerage commissions, fees and other compensation made
against the Agents, the Lenders and the Issuing Lenders for any broker, finder
or consultant with respect to any agreement, arrangement or understanding made
by or on behalf of any Loan Party or any of its Subsidiaries in connection with
the transactions contemplated by this Agreement.
(c) The Company, at the request of any Indemnitee, shall have
the obligation to defend against any investigation, litigation or proceeding or
requested Remedial Action, in each case contemplated in clause (a) above, and
the Company, in any event, may participate in the defense thereof with legal
counsel of the Company's choice. In the event that such Indemnitee requests the
Company to defend against such investigation, litigation or proceeding or
requested Remedial Action, the Company shall promptly do so and lead such
defense, and such Indemnitee shall have the right to have legal counsel of its
choice participate in such defense; provided, however, that the fees and
expenses of such counsel shall be reasonable for a secondary counsel; provided,
further, that the Company shall not be required to reimburse the Indemnitees
for the fees and expenses of more than one joint counsel for the Administrative
Agents and the Collateral Agent and one joint counsel for the other Indemnitees
unless such representation shall result in a conflict of interest among the
Indemnitees. No action taken by legal counsel chosen by such Indemnitee in
defending against any such investigation, litigation or proceeding or requested
Remedial Action, shall vitiate or in any way impair the Company's obligation
and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Company agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including
pursuant to this Section 14.17) or any other Loan Document shall (i) survive
Full Satisfaction of the Payment Obligations and (ii) inure to the benefit of
any Person that was at any time an Indemnitee under this Agreement or any other
Loan Document.
Section 14.18 Limitation of Liability. (a) The Company agrees
that no Indemnitee shall have any liability (whether in contract, tort or
otherwise) to any Loan Party or any of their respective Subsidiaries or any of
their respective equity holders or creditors for or in connection with the
transactions contemplated hereby and in the other Loan Documents, except to the
extent such liability is determined in a final non-appealable judgment by a
court of competent jurisdiction to have resulted primarily from such
Indemnitee's gross negligence or willful misconduct. In no event, however,
shall any Indemnitee be liable on any theory of liability for any special,
indirect, consequential or punitive damages (including, without limitation, any
loss of profits, business or anticipated savings). The Company hereby waives,
releases and agrees (each for itself and on behalf of Revlon and the Company's
Subsidiaries) not to sue upon any such claim for any special, indirect,
consequential or punitive damages, whether or not accrued and whether or not
known or suspected to exist in its favor.
(b) IN NO EVENT SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY
TO ANY LOAN PARTY, LENDER, ISSUING LENDER OR ANY OTHER PERSON FOR DAMAGES OF
ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT OR CONTRACT OR OTHERWISE) ARISING
OUT OF ANY LOAN PARTY OR ANY AGENT AFFILIATE'S TRANSMISSION OF APPROVED
ELECTRONIC COMMUNICATIONS THROUGH THE INTERNET OR ANY USE OF THE APPROVED
ELECTRONIC PLATFORM, EXCEPT TO THE EXTENT SUCH LIABILITY OF ANY AGENT AFFILIATE
IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED PRIMARILY FORM SUCH AGENT AFFILIATE'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Steven F. Schiffman
____________________________________________
Name: Steven F. Schiffman
Title: Senior Vice President and Treasurer
REVLON INTERNATIONAL CORPORATION (UK Branch),
as a Local Borrowing Subsidiary
By: /s/ Michael T. Sheehan
____________________________________________
Name: Michael T. Sheehan
Title: Vice President and Assistant
Secretary
REVLON AUSTRALIA PTY LIMITED, as a Local
Borrowing Subsidiary
By: /s/ Michael T. Sheehan
____________________________________________
Name: Michael T. Sheehan
Title: Attorney-in-Fact
EUROPEENNE DE PRODUITS DE BEAUTE, S.A.S., as a
Local Borrowing Subsidiary
By: /s/ Michael T. Sheehan
____________________________________________
Name: Michael T. Sheehan
Title: Attorney-in-Fact
REVLON S.P.A., as a Local Borrowing Subsidiary
By: /s/ Michael T. Sheehan
____________________________________________
Name: Michael T. Sheehan
Title: Director
Signature page to Credit Agreement
CITICORP USA, INC., as Term Loan
Administrative Agent
By: /s/ John G. McAuley
____________________________________________
Name: John G. McAuley
Title: Vice President
CITICORP USA, INC., as Multi-Currency
Administrative Agent and Swing Line Lender
By: /s/ James J. McCarthy
____________________________________________
Name: James J. McCarthy
Title: Vice President/Director
CITICORP USA, INC., as Collateral Agent
By: /s/ James J. McCarthy
____________________________________________
Name: James J. McCarthy
Title: Vice President/Director
CITICORP USA, INC., as Lender
By: /s/ James J. McCarthy
____________________________________________
Name: James J. McCarthy
Title: Vice President/Director
CITIBANK, N.A., as Issuing Lender
By: /s/ James J. McCarthy
____________________________________________
Name: James J. McCarthy
Title: Vice President/Director
Signature page to Credit Agreement
SIGNED, SEALED and DELIVERED )
by , )
the lawful attorney of ) L. S. /s/ Michael T. Sheehan
REVLON (HONG KONG) LIMITED, )
a Local Borrowing Subsidiary )
in the presence of : )
Witness's signature /s/ Melissa J. Mitidiero
___________________________
Witness's name Melissa J. Mitidiero
___________________________
Occupation Senior Paralegal
___________________________
Signature page to Credit Agreement
WELLS FARGO FOOTHILL, LLC, as a Lender
/s/ Sanat Amladi
By: _____________________________________
Name: Sanat Amladi
Title: Vice President
Signature page to Credit Agreement
GMAC COMMERCIAL FINANCE LLC, as a Lender
/s/ George Grieco
By: _____________________________________
Name: George Grieco
Title: Director
Signature page to Credit Agreement
UBS, AG, STAMFORD BRANCH, as a Lender
/s/ Wilford V. Balm
By: _____________________________________
Name: Wilford V. Balm
Title: Director
Banking Products Services, US
/s/ Joselin Fernandes
By: _____________________________________
Name: Joselin Fernandes
Title: Associate Director
Banking Products Services, US
Signature page to Credit Agreement
STATE OF CALIFORNIA PUBLIC
EMPLOYEES' RETIREMENT SYSTEM, as a Lender
/s/ Curtis D. Ishii
By: _____________________________________
Name: Curtis D. Ishii
Title: Senior Investment Officer
Signature page to Credit Agreement
TABLE OF CONTENTS
Page
----
Article I DEFINITIONS........................................................1
Section 1.1 Defined Terms.............................................1
Section 1.2 Other Definitional Provisions............................49
Article II AMOUNTS AND TERMS OF TERM LOAN COMMITMENT.........................49
Section 2.1 Term Loan Commitments....................................49
Section 2.2 Obligations of the Company...............................50
Section 2.3 Procedure for Borrowing Term Loans.......................50
Section 2.4 Amortization of Term Loans...............................51
Section 2.5 Use of Proceeds of Term Loans............................52
Article III AMOUNT AND TERMS OF REVOLVING CREDIT SUB-FACILITY.................52
Section 3.1 Revolving Credit Commitments.............................52
Section 3.2 Obligations of Company...................................53
Section 3.3 Procedure for Borrowing Revolving Credit Loans...........54
Section 3.4 Use of Proceeds of Revolving Credit Loans................55
Article IV AMOUNT AND TERMS OF SWING LINE SUB-FACILITY.......................55
Section 4.1 Swing Line Commitments...................................55
Section 4.2 Participations...........................................56
Section 4.3 Use of Proceeds of Swing Line Loans......................57
Article V AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY.................57
Section 5.1 Letters of Credit Facility...............................57
Section 5.2 Procedure for Issuance of Letters of Credit..............57
Section 5.3 L/C Participations.......................................58
Section 5.4 L/C Reimbursement Obligation of the Company..............59
Section 5.5 Obligations Absolute.....................................59
Section 5.6 Letter of Credit Payments................................60
Section 5.7 Application..............................................60
Section 5.8 Cash Collateral for Letters of Credit....................60
Section 5.9 Existing Letters of Credit...............................60
Article VI AMOUNT AND TERMS OF LOCAL LOAN SUB-FACILITY.......................61
Section 6.1 Local Loan Commitments...................................61
Section 6.2 Obligations of Local Borrowers...........................61
Section 6.3 Procedure for Borrowing Local Loans......................62
Section 6.4 Currency Conversion and Contingent Funding Agreement.....63
Section 6.5 Designation of Additional Denomination Currencies........65
Section 6.6 Re-Allocation of Currency Sublimits......................66
Section 6.7 Resignation or Removal of a Local Fronting Lender........68
Section 6.8 Reports..................................................69
Section 6.9 Bankers' Acceptances.....................................69
Section 6.10 Use of Proceeds of Local Loans and Acceptances...........70
Article VII PROVISIONS RELATING TO CERTAIN EXTENSIONS OF CREDIT; FEES
AND PAYMENT.......................................................70
Section 7.1 Voluntary Termination or Reduction of Aggregate
Multi-Currency Commitment................................70
Section 7.2 Optional Prepayments.....................................71
Section 7.3 Mandatory Prepayments and Commitment Reductions..........72
Section 7.4 Application of Payments and Commitment Reductions........75
Section 7.5 Interest Rate and Payment Dates; Risk Participation
Fees; Local Administrative Fee ..........................75
Section 7.6 Letter of Credit Fees, Commissions and Other Charges.....77
Section 7.7 Conversion Options, Minimum Tranches and Maximum
Interest Periods.........................................78
Section 7.8 Inability to Determine Interest Rate......................80
Section 7.9 Illegality................................................81
Section 7.10 Requirements of Law; Changes of Law.......................82
Section 7.11 Indemnity.................................................83
Section 7.12 Taxes.....................................................84
Section 7.13 Commitment Fee............................................87
Section 7.14 Computation of Interest and Fees..........................87
Section 7.15 Pro Rata Treatment and Payments...........................88
Section 7.16 Interest Act (Canada).....................................91
Article VIII REPRESENTATIONS AND WARRANTIES.....................................91
Section 8.1 Corporate Existence.......................................91
Section 8.2 Corporate Power...........................................92
Section 8.3 No Legal Bar to Loans.....................................92
Section 8.4 No Material Litigation....................................92
Section 8.5 No Default................................................93
Section 8.6 Ownership of Properties; Liens............................93
Section 8.7 Taxes.....................................................93
Section 8.8 ERISA.....................................................94
Section 8.9 Financial Condition.......................................94
Section 8.10 No Change.................................................94
Section 8.11 Federal Regulations.......................................95
Section 8.12 Investment Company Act; PUHCA.............................95
Section 8.13 Matters Relating to Subsidiaries..........................95
Section 8.14 Mortgages.................................................95
Section 8.15 Solvency..................................................95
Section 8.16 Environmental Matters.....................................96
Section 8.17 Models....................................................97
Section 8.18 Disclosure................................................97
Section 8.19 Senior Indebtedness.......................................97
Section 8.20 Regulation H..............................................97
Section 8.21 Affiliate Obligations.....................................97
Section 8.22 Indebtedness Owing to Affiliates..........................98
Article IX CONDITIONS PRECEDENT...............................................98
Section 9.1 Conditions to Initial Extensions of Credit................98
Section 9.2 Conditions to Each Extension of Credit...................102
Section 9.3 Conditions to Each Facilities Increase...................103
Article X AFFIRMATIVE COVENANTS.............................................104
Section 10.1 Financial Statements.....................................104
Section 10.2 Certificates; Other Information..........................105
Section 10.3 Payment of Obligations...................................106
Section 10.4 Conduct of Business and Maintenance of Existence.........106
Section 10.5 Maintenance of Property; Insurance.......................107
Section 10.6 Inspection of Property; Books and Records; Discussions...107
Section 10.7 Notices..................................................107
Section 10.8 Maintenance of Corporate Identity........................108
Section 10.9 Environmental Laws.......................................108
Section 10.10 Additional Guaranties....................................109
Section 10.11 Additional Stock Pledges.................................109
Section 10.12 Additional Collateral....................................110
Section 10.13 Asset Transfers..........................................111
Section 10.14 Intellectual Property....................................111
Section 10.15 Additional Mortgages.....................................113
Section 10.16 Post-Closing Matters.....................................113
Section 10.17 Borrowing Base Determination.............................114
Section 10.18 Tax Reporting............................................114
Section 10.19 Control Accounts; Approved Deposit Accounts..............115
Section 10.20 Landlord Waiver and Bailee's Letters.....................116
Article XI NEGATIVE COVENANTS................................................116
Section 11.1 Financial Covenants......................................116
Section 11.2 Indebtedness.............................................116
Section 11.3 Limitation on Liens......................................119
Section 11.4 Limitation on Contingent Obligations.....................121
Section 11.5 Limitation on Fundamental Changes........................122
Section 11.6 Limitation on Sale of Assets.............................122
Section 11.7 Limitation on Restricted Payments........................123
Section 11.8 Limitation on Investments................................124
Section 11.9 Limitation on Payments on Account of Debt;
Synthetic Purchase Agreements ...........................126
Section 11.10 Limitation on Transactions with Affiliates...............127
Section 11.11 Hazardous Materials......................................128
Section 11.12 Accounting Changes.......................................128
Section 11.13 Limitation on Negative Pledge Clauses....................128
Section 11.14 Amendment of Company Tax Sharing Agreement...............128
Section 11.15 Limitations on Restrictions on Subsidiary Distributions..128
Section 11.16 Limitation on Activities of RPH..........................129
Section 11.17 Prohibition on Speculative Hedging Transactions..........129
Article XII EVENTS OF DEFAULT.................................................129
Article XIII THE AGENTS........................................................134
Section 13.1 Authorization and Action.................................134
Section 13.2 Agents' Reliance, Etc....................................135
Section 13.3 Posting of Approved Electronic Communications............136
Section 13.4 The Agents Individually..................................136
Section 13.5 Lender Credit Decision...................................137
Section 13.6 Indemnification..........................................137
Section 13.7 Successor Agent..........................................137
Section 13.8 Concerning the Collateral and the Security Documents.....138
Article XIV MISCELLANEOUS.....................................................139
Section 14.1 Amendments and Waivers...................................139
Section 14.2 Notices..................................................142
Section 14.3 No Waiver; Cumulative Remedies...........................144
Section 14.4 Survival of Representations and Warranties...............144
Section 14.5 Payment of Expenses......................................144
Section 14.6 Assignments and Participations; Binding Effect...........145
Section 14.7 Adjustments; Set-off.....................................149
Section 14.8 Delegation by each Local Borrowing Subsidiary............150
Section 14.9 Judgment.................................................150
Section 14.10 Intercreditor Agreement..................................151
Section 14.11 Severability; Conflicts..................................151
Section 14.12 Counterparts; Confidentiality............................151
Section 14.13 Submission To Jurisdiction; Waivers......................152
Section 14.14 Acknowledgements.........................................153
Section 14.15 USA PATRIOT Act..........................................153
Section 14.16 Governing Law............................................153
Section 14.17 Indemnities..............................................153
Section 14.18 Limitation of Liability..................................155
TABLE OF CONTENTS
(continued)
Schedules
- ---------
Schedule I Lenders; Addresses for Notices
Schedule II Commitments
Schedule III Borrowers, Denomination Currencies; Currency
Sublimits; Maximum Sublimits; Local Fronting Lenders
Schedule IV Borrowing Base Definitions
Schedule 1.1 Existing Eligible Obligations
Schedule 5.9 Existing Letters of Credit
Schedule 6.3 Existing Local Loans
Schedule 8.13 Subsidiaries of the Company; Subsidiaries Scheduled
for Dissolution
Schedule 8.16 Environmental Matters
Schedule 9.1(d) Mortgages
Schedule 9.1(h)(iv) Domestic Local Counsel
Schedule 9.1(h)(v) International Local Counsel
Schedule 10.16 Post-Closing Matters
Schedule 11.3 Liens
Schedule 11.4 Contingent Obligations
Schedule 11.6 Disposition Assets
Exhibits
- --------
Exhibit A Form of Term Loan Note
Exhibit B Form of Revolving Credit Note
Exhibit C Form of Borrowing Base Certificate
Exhibit D Form of Intercreditor Agreement
Exhibit E Form of Guaranty
Exhibit F Form of Pledge and Security Agreement
Exhibit G Form of Mortgage
Exhibit H-1 Form of Notice of Borrowing
Exhibit H-2 Form of Application
Exhibit H-3 Form of Swing Line Loan Request
Exhibit I Form of Notice of Conversion or Continuation
Exhibit J Form of Affiliate Subordination Letter
Exhibit K-1 Form of Opinion of Paul, Weiss, Rifkind,
Wharton & Garrison LLP
Exhibit K-2 Form of Opinion of Executive Vice President and
General Counsel of the Company
Exhibit K-3 Form of Opinion of Weil, Gotshal & Manges LLP
Exhibit L Form of Assignment and Acceptance
Exhibit M Form of Compliance Certificate
Exhibit N Form of Capital Contribution Note
Exhibit O-1 Form of Local Borrowing Subsidiary Joinder Agreement
Exhibit O-2 Form of Local Fronting Lender Joinder Agreement
Exhibit P-1 Form of Local Loan Statement
Exhibit P-2 Form of Interest Allocation Statement (Local Loans)
Exhibit Q Form of U.S. Tax Compliance Certificate
Exhibit R Form of Solvency Certificate