Exhibit 4.1
AMENDMENT NO. 3
AMENDMENT NO. 3, dated as of September 29, 2006 (this
"Amendment"), by and among Revlon Consumer Products Corporation (the "Company"),
Citicorp USA, Inc., as administrative agent for the Term Loan Lenders (in such
capacity, the "Term Loan Administrative Agent"), and Citicorp USA, Inc., as
administrative agent for the Multi-Currency Lenders (in such capacity, the
"Multi-Currency Administrative Agent" and, together with the Term Loan
Administrative Agent, the "Administrative Agents").
W I T N E S S E T H:
WHEREAS, the Company and the Administrative Agents are parties
to that certain Credit Agreement, dated as of July 9, 2004 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Company and the Local Borrowing Subsidiaries, as borrowers, the
Lenders and Issuing Lenders party thereto, the Term Loan Administrative Agent,
the Multi-Currency Administrative Agent and Citicorp USA, Inc., as collateral
agent for the Secured Parties; and
WHEREAS, the Company has requested that the Administrative
Agents, on behalf of the Lenders, enter into this Amendment to amend the Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
2. Amendment. Effective as of the Effective Date (as defined
below) and subject to the terms and conditions set forth herein, the definition
of "EBITDA" in Section 1.1 (Defined Terms) of the Credit Agreement is hereby
amended by (a) replacing the word "and" at the end of clause (b)(xvi) thereof
with ",", (b) adding the word "and" at the end of clause (b)(xvii) thereof and
(c) adding the following as a new clause (b)(xviii) thereof:
"(xviii) non-recurring restructuring charges, asset
impairment charges, inventory write-offs and returns costs, plus in each case
related charges, in an aggregate amount with respect to all charges under this
clause (xviii) not to exceed the lesser of (A) $75,000,000 and (B) the actual
amount of such charges in connection with the organizational changes announced
by the Company on September 18, 2006, the restructuring announced by the Company
on September 25, 2006 and retail space reconfigurations and/or product
discontinuances associated with the discontinuation of the Company's Vital
Radiance brand announced by the Company on September 25, 2006 (in each case,
specifically identified and itemized by the Company at the time taken, whether
or not characterized as a non-recurring or restructuring charge in accordance
with GAAP)".
3. Conditions to Effectiveness of this Amendment. This
Amendment shall become effective as of the date the following conditions
precedent have been satisfied (the "Effective Date"):
(a) The Administrative Agents shall have received (i) this
Amendment, duly executed and delivered by the Company and the Administrative
Agents, (ii) the Consent and Affirmation, in the form attached hereto as Annex
A, duly executed and delivered by each of the Guarantors, and (iii) Lender
Consents, in the form attached hereto as Annex B (the "Lender Consent"), duly
executed and delivered by Lenders constituting the Required Lenders.
(b) (i) The Term Loan Administrative Agent shall have received
from the Company, for the ratable benefit of the Term Loan Lenders that have
delivered a Lender Consent on or prior to 12:00 noon (New York time) on
September 29, 2006, an amendment fee equal to 0.25% of each such Term Loan
Lender's Term Loan Percentage of the aggregate principal amount of Term Loans
outstanding on the Effective Date and (ii) the Multi-Currency Administrative
Agent shall have received from the Company, for the ratable benefit of the
Multi-Currency Lenders that have delivered a Lender Consent on or prior to 12:00
noon (New York time) on September 29, 2006, an amendment fee equal to 0.25% of
each such Multi-Currency Lender's Multi-Currency Percentage of the Aggregate
Multi-Currency Commitment on the Effective Date.
(c) Prior to and after giving effect to this Amendment, each
of the representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct in all material respects on and as
of the date hereof, as if made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date.
(d) No Default or Event of Default shall have occurred and be
continuing on the date hereof prior to or after giving effect to this Amendment.
4. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agents and the Lenders, on and as
of the date hereof, both prior to and after giving effect to this Amendment,
that:
(a) (i) The Company has taken all necessary action to
authorize the execution, delivery and performance of this Amendment, (ii) this
Amendment has been duly executed and delivered by the Company and (iii) this
Amendment is the legal, valid and binding obligation of the Company, enforceable
against it in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
(b) Each of the representations and warranties made by any
Loan Party in or pursuant to the Loan Documents is true and correct in all
material respects on and as of the date hereof, as if made on and as of such
date, except to the extent such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties are true
and correct in all material respects as of such earlier date.
(c) No Default or Event of Default has occurred and is
continuing.
5. Continuing Effect. Except as expressly set forth in this
Amendment, all of the terms and provisions of the Credit Agreement are and shall
remain in full force and effect and the Company shall continue to be bound by
all of such terms and provisions. This Amendment is limited to the specific
provisions of the Credit Agreement specified herein and shall not constitute an
amendment of, or an indication of the Administrative Agents' or the Lenders'
willingness to amend or waive, any other provisions of the Credit Agreement or
the same provisions for any other date or purpose.
6. Expenses. The Company agrees to pay and reimburse each
Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the negotiation, preparation, execution and delivery
of this Amendment, and all other documents prepared in connection herewith, and
the transactions contemplated hereby, including, without limitation, reasonable
fees and disbursements and other charges of counsel to the Administrative
Agents.
7. Choice of Law. This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
8. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties and separate counterparts, each of
which when so executed and delivered, shall be deemed an original, and all of
which, when taken together, shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Amendment by
facsimile or e-mail shall be effective as delivery of a manually executed
counterpart of this Amendment.
9. Integration. This Amendment, together with the other Loan
Documents, incorporates all negotiations of the parties hereto with respect to
the subject matter hereof and is the final expression and agreement of the
parties hereto with respect to the subject matter hereof.
10. Severability. In case any provision in this Amendment
shall be invalid, illegal or unenforceable, such provision shall be severable
from the remainder of this Amendment and the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
11. Loan Document. This Amendment is a Loan Document.
12. Waiver of Jury Trial. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AMENDMENT AND ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties have entered into this
Amendment as of the date first above written.
REVLON CONSUMER PRODUCTS
CORPORATION
By: /s/ Robert K. Kretzman
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Name: Robert K. Kretzman
Title: Executive Vice President, Chief Legal
Officer, General Counsel and Secretary
CITICORP USA, INC., as Term Loan
Administrative Agent and Multi-Currency
Administrative Agent
By: /s/ William Washburn
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Name: William Washburn
Title: Director/Vice President