$300,000,000
FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of December 16, 1996
Among
MARVEL IV HOLDINGS INC.,
(to be renamed MAFCO FINANCE CORP.)
as Borrower,
THE FINANCIAL INSTITUTIONS AND
THE INITIAL ISSUING BANK NAMED HEREIN,
as Financial Institutions and
Initial Issuing Bank,
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent ,
THE FIRST NATIONAL BANK OF BOSTON,
as Documentation Agent,
CHASE SECURITIES, INC.,
as Syndication Agent,
and
BANK OF AMERICA ILLINOIS,
ING (U.S.) CAPITAL CORPORATION,
SALOMON BROTHERS HOLDING COMPANY INC,
THE BANK OF NEW YORK,
THE FUJI BANK, LIMITED
as Managing Agents
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms........................... 3
SECTION 1.02. Computation of Time Periods..................... 40
SECTION 1.03. Accounting Terms................................ 40
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances.................................... 40
SECTION 2.02. Making the Advances............................. 42
SECTION 2.03. Issuance of and Drawings and Reimbursement
Under Letters of Credit....................... 44
SECTION 2.04. Repayment....................................... 46
SECTION 2.05. Termination or Reduction of the Commitments..... 47
SECTION 2.06. Prepayments..................................... 52
SECTION 2.07. Interest........................................ 55
SECTION 2.08. Interest Rate Determination..................... 55
SECTION 2.09. Fees ........................................... 56
SECTION 2.10. Increased Costs; Illegality..................... 57
SECTION 2.11. Conversion of Advances.......................... 59
SECTION 2.12. Payments and Computations....................... 60
SECTION 2.13. Taxes ........................................ 61
SECTION 2.14. Sharing of Payments, Etc........................ 64
SECTION 2.15. Removal of Lender............................... 64
SECTION 2.16. Defaulting Lender............................... 65
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date.......... 68
SECTION 3.02. Conditions Precedent to Each Borrowing
and Issuance.................................. 76
SECTION 3.03. Determinations Under Section 3.01............... 77
ARTICLE IV
ii
Page
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower... 77
SECTION 4.02. Representations and Warranties Applicable
to Marvel...................................... 82
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants............................ 82
(a) Compliance with Laws, Etc......... 82
(b) Compliance with Environmental
Laws............................ 82
(c) Maintenance of Insurance.......... 83
(d) Preservation of Corporate
Existence, Etc.................. 83
(e) Visitation Rights................. 83
(f) Keeping of Books.................. 83
(g) Maintenance of Properties, Etc.... 83
(h) Termination of Financing
Statements...................... 84
(i) Collateral Account................ 84
(j) Reporting Requirements............ 84
(k) Look-Forward Certificate.......... 87
(l) Transactions with Affiliates...... 88
(m) Use of Proceeds................... 88
(n) Mafco Tax Group................... 89
(o) Net Cash Proceeds................. 89
(p) ▇▇▇▇▇ Utilization................. 89
SECTION 5.02. Negative Covenants.............................. 89
(a) Liens, Etc........................ 89
(b) Lease Obligations................. 90
(c) Mergers, Etc...................... 90
(d) Sales, Etc. of Assets............. 90
(e) Dividends, Repurchases, Etc....... 90
(f) Investments....................... 91
(g) Change in Nature of Business...... 91
(h) Accounting Changes................ 91
(i) Debt.............................. 91
(j) Charter Amendments................ 92
(k) Prepayments, Etc. of Debt......... 92
(l) Negative Pledge................... 92
(m) Partnerships...................... 92
(n) Capital Expenditures.............. 92
(o) Issuance of Capital Stock......... 92
iii
Page
(p) Payment Restrictions................ 92
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.................................. 93
SECTION 6.02. Actions in Respect of the Letters of Credit
upon Event of Default............................ 98
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 7.01. Authorization and Action........................... 99
SECTION 7.02. Administrative Agent's and Collateral Agent's
Reliance, Etc.................................... 99
SECTION 7.03. Citibank and Affiliates............................100
SECTION 7.04. Lender Party Credit Decision.......................100
SECTION 7.05. Indemnification....................................100
SECTION 7.06. Successor Administrative Agent and
Collateral Agent.................................102
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc....................................103
SECTION 8.02. Notices, Etc.......................................104
SECTION 8.03. No Waiver; Remedies................................104
SECTION 8.04. Costs; Expenses....................................105
SECTION 8.05. Right of Set-off...................................106
SECTION 8.06. Binding Effect.....................................107
SECTION 8.07. Assignments and Participations.....................107
SECTION 8.08. Governing Law; Submission to Jurisdiction..........110
SECTION 8.09. Execution in Counterparts..........................111
SECTION 8.10. No Liability of the Issuing Bank...................111
SECTION 8.11. WAIVER OF JURY TRIAL...............................112
iv
Schedule I - List of Existing Advances, Advances, Commitments and
Lending Offices
Schedule II - Borrower Information
Schedule III - List of Existing Debt
Schedule IV - List of Investments
Schedule V - List of Existing Liens
Schedule VI - Calculation of Defeased Debt Amount
Schedule VII - List of Debt for the Definition of Net Cash Proceeds
Exhibit A-1 - Form of Tranche A Revolving Credit Note
Exhibit A-2 - Form of Tranche B Revolving Credit Note
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Notice of Borrowing
Exhibit D-1 - Form of Mafco Security Agreement
Exhibit D-2 - Form of Borrower Security Agreement
Exhibit D-3 - Form of Borrower Parent Security Agreement
Exhibit E-1 - Form of Mafco Guaranty
Exhibit E-2 - Form of Borrower Parent Guaranty
Exhibit E-3 - Form of C&F Guaranty
Exhibit E-4 - Form of Cigar Guaranty
Exhibit E-5 - Form of ▇▇▇▇▇▇▇ Guaranty
Exhibit E-6 - Form of Flavors Guaranty
Exhibit E-7 - Form of New World Guaranty
Exhibit E-8 - Form of Revlon Guaranty
v
Exhibit F-1 - Form of C&F Pledge Agreement
Exhibit F-2 - Form of Cigar Pledge Agreement
Exhibit F-3 - Form of ▇▇▇▇▇▇▇ Pledge Agreement
Exhibit F-4 - Form of ▇▇▇▇▇▇▇ Worldwide Pledge Agreement
Exhibit F-5 - Form of Flavors Pledge Agreement
Exhibit F-6 - Form of Four Star Pledge Agreement
Exhibit F-7 - Form of Mafco Pledge Agreement
Exhibit F-8 - Form of M&F Pledge Agreement
Exhibit F-9 - Form of New ▇▇▇▇▇▇▇ Pledge Agreement
Exhibit F-10 - Form of New World Pledge Agreement
Exhibit F-11 - Form of Second ▇▇▇▇▇▇▇ Pledge Agreement
Exhibit F-12 - Form of Revlon Pledge Agreement
Exhibit G - Form of Equity Contribution Agreement
Exhibit H - Form of First Gibraltor Loan
Exhibit I - Form of Confidentiality Letter
FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated
as of December 16, 1996 among MARVEL IV HOLDINGS INC., a Delaware corporation
(to be renamed MAFCO FINANCE CORP.) (the "Borrower"), the banks, financial
institutions and other institutional lenders (the "Financial Institutions")
listed on the signature pages hereof, the Initial Issuing Bank (as hereinafter
defined), CITIBANK, N.A. ("Citibank"), as administrative agent (together
with any successor appointed pursuant to Article VII, the "Administrative
Agent") for the Lender Parties (as hereinafter defined) hereunder, THE
FIRST NATIONAL BANK OF BOSTON, as documentation agent (the "Documentation
Agent") for the Lender Parties hereunder, CHASE SECURITIES, INC, as
syndication agent (the "Syndication Agent"), BANK OF AMERICA ILLINOIS, INC
(U.S.) CAPITAL CORPORATION, SALOMON BROTHERS HOLDING COMPANY INC, and THE
FUJI BANK, LIMITED, as managing agents (the "Managing Agents"; together with
the Administrative Agent, the Documentation Agent and the Syndication Agent,
the "Agents") for the Lender Parties hereunder and Citibank, as collateral
agent (together with any successor appointed pursuant to Article VII, the
"Collateral Agent") for the Lender Parties hereunder and the Term Credit
Agreement Lenders (as hereinafter defined).
PRELIMINARY STATEMENTS
(1) In connection with the purchase of certain assets and
the assumption of certain liabilities (the "Original Transaction") of First
Nationwide Bank, A Federal Savings Bank, by First Madison Bank, F.S.B. (now
known as First Nationwide Bank), an indirect Subsidiary (as hereinafter
defined) of Mafco Holdings Inc., a Delaware corporation ("Mafco"), the
Borrower entered into a Credit Agreement dated as of July 20, 1994, as amended
by the First Amendment dated as of March 10, 1995 (said agreement, as so
amended, being the "Original Credit Agreement"), with the financial
institutions and other institutional lenders party thereto (the "Original
Lenders") and Citibank, as agent for the Original Lenders.
(2) Pursuant to the Original Credit Agreement, the Borrower
requested that the Original Lenders make advances to it, in an aggregate
principal amount of up to $240,000,000, on the terms and conditions set forth
therein.
(3) Subsequently, the Borrower entered into an Amended and
Restated Credit Agreement dated as of June 29, 1995, as amended by the First
Amendment dated as of October 27, 1995 (said agreement, as so amended, being
the "Second Credit Agreement"), with the financial institutions and other
institutional lenders thereto and Citibank, as agent for such financial
institutions and other institutional lenders.
(4) Pursuant to the Second Credit Agreement, the Borrower
requested that the financial institutions and other institutional lenders
party thereto make advances to it in an
2
aggregate principal amount of up to $350,000,000, on the terms and conditions
set forth therein.
(5) Subsequently, the Borrower entered into a Second Amended
and Restated Credit Agreement dated as of December 15, 1995, as amended by the
First Amendment dated as of January 9, 1996, the Second Amendment dated as of
January 24, 1996 and the Third Amendment dated as of April 9, 1996 (said
agreement, as so amended, being the "Third Credit Agreement"), with the
financial institutions and other institutional lenders party thereto (the
"Third Lenders") and Citibank, as agent for the Third Lenders.
(6) Pursuant to the Third Credit Agreement, the Borrower
requested that the Third Lenders make advances to it in an aggregate principal
amount of up to $430,000,000, on the terms and conditions set forth therein.
(7) Subsequently, the Borrower entered into a Third Amended
and Restated Credit Agreement dated as of June 3, 1996, as amended by the
First Amendment dated as of September 9, 1996 and the Second Amendment dated
as of October 9, 1996 (said agreement, as so amended, being the "Existing
Credit Agreement"), with the financial institutions and other institutional
lenders party thereto (the "Existing Lenders") and Citibank, as agent for the
Existing Lenders.
(8) Pursuant to the Existing Credit Agreement, the Borrower
requested that the Existing Lenders make advances to it in an aggregate
principal amount of up to $250,000,000, on the terms and conditions set forth
therein.
(9) The Borrower has requested that the Financial
Institutions hereunder enter into this Agreement to amend and restate the
Existing Credit Agreement and to lend to the Borrower and issue Letters of
Credit for the benefit of the Borrower from time to time in an aggregate
principal amount of up to $300,000,000. The Financial Institutions hereunder
have indicated their willingness to amend and restate the Existing Credit
Agreement and to provide such additional financing on the terms and conditions
of this Agreement.
(10) Concurrently with entering into this Agreement, the
Borrower is entering into a Term Credit Agreement dated as of the date hereof
(as it may hereafter be amended or otherwise modified from time to time, the
"Term Credit Agreement") with the banks, financial institutions and other
institutional lenders party thereto (the "Term Credit Agreement Lenders"),
Citibank, as administrative agent (in such capacity, the "Term Administrative
Agent"), NationsBanc Capital Markets, Inc., as documentation agent (in such
capacity, the "Term Documentation Agent"), Credit Suisse, as syndication agent
(in such capacity, the "Term Syndication Agent"), the managing agents party
thereto (the "Term Managing Agents"; together with the Term Administrative
Agent, the Term Documentation Agent and the Term Syndication Agent, the "Term
Agents") and the Collateral Agent.
3
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto hereby
agree that, subject to the satisfaction of the conditions set forth in Section
3.01, the Existing Credit Agreement is amended and restated in its entirety to
read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"A Company" means (i) each Loan Party, FN Parent, FN
Holdings, ▇▇▇▇▇▇▇ Holdings Inc., ▇▇▇▇▇▇▇ Worldwide and NWCG Holdings and (ii)
on and after the Revlon Inclusion Date, National Health Care Group Inc.,
Revlon Holdings Inc. and Revlon Worldwide Corporation; provided, however, that
on and after (i) the consummation of the New World Acquisition, NWCG Holdings
shall no longer be a "A Company" and (ii) the date of sale, monetization or
other disposal by Mafco or any of its Subsidiaries of all of the News Corp.
Preferred ADRs, New World Guarantor shall no longer be an "A Company".
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 3685-2248.
"Advance" means a Tranche A Revolving Credit Advance, a
Tranche B Revolving Credit Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the Voting
Stock of such Person or to direct or cause direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise.
"Agents" has the meaning specified in the recital of parties
to this Agreement.
4
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ Group Incorporated, a Delaware
corporation.
"Applicable Lending Office" means, with respect to each
Lender Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance and such Lender Party's Eurodollar Lending Office in the
case of a Eurodollar Rate Advance.
"Applicable Margin" means, at any time, 2.50% per annum for
Base Rate Advances and 4.50% per annum for Eurodollar Rate Advances.
"Appropriate Lender" means, at any time, with respect to (a)
any of the Tranche A Revolving Credit Facilities or Tranche B Revolving Credit
Facilities, a Lender that has a Commitment with respect to such Facility at
such time and (b) the Letter of Credit Facility, (i) the Issuing Bank and (ii)
if the other Tranche A Revolving Credit Lenders have made Letter of Credit
Advances pursuant to Section 2.03(c) that are outstanding at such time, each
such other Tranche A Revolving Credit Lender.
"Asset Sale" means the sale, lease, transfer or other
disposition (collectively, a "disposition") of assets of Mafco or any of its
Subsidiaries other than a disposition of any of the following:
(i) all or any portion of the capital stock of
Laboratory Corporation of America Holdings, or Meridian
Sports Incorporated,
(ii) all or any portion of the capital stock or
assets of the Bank or any of its Subsidiaries,
(iii) all or any portion of the real property
located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ in
connection with the New World Acquisition,
(iv) from and after the later to occur of (A) the
Tranche B Termination Date and (B) the Term Credit Agreement
Termination Date, all or any portion of the capital stock or
assets of Marvel III Holdings Inc., Marvel (Parent) Holdings
Inc., Marvel Holdings Inc. and Marvel (or any of its
Subsidiaries), and
(v) any asset of Ropa Two Corporation so long as
the Net Cash Proceeds from any disposition of an asset of
Ropa Two Corporation shall be reinvested, within twelve
months following the date of such disposition, in the
business of Ropa Two Corporation or any of its Subsidiaries;
provided, however, that
5
(a) a disposition of assets of (x) a Designated
Operating Company or any of its Subsidiaries, (y) Meridian
Sports Incorporated or any of its Subsidiaries or (z) Marvel
or any of its Subsidiaries prior to and following the Marvel
Inclusion Period shall, in each case, only be considered an
Asset Sale for purposes of this Agreement to the extent, and
only to the extent, that all or a portion of the proceeds of
such disposition are received by any of Mafco or any of its
Subsidiaries (other than (i) a Designated Operating Company
or any of its Subsidiaries, (ii) Meridian Sports
Incorporated or any of its Subsidiaries or (iii) Marvel or
any of its Subsidiaries prior to and following the Marvel
Inclusion Period, as the case may be) through a dividend,
distribution, loan, advance or other similar payment,
(b) subject to the other clauses of this proviso,
so long as the Revlon Holdings Statement is true and correct
both before and after giving effect to such disposition, a
disposition of assets of Revlon Holdings Inc. or any of its
Subsidiaries shall only be considered an Asset Sale for
purposes of this Agreement to the extent, and only to the
extent, that all or a portion of the proceeds of such
disposition are received by any of Mafco or any of its
Subsidiaries (other than Revlon Holdings Inc. or any of its
Subsidiaries) through a dividend, distribution, loan,
advance or other similar payment,
(c) notwithstanding clause (b) of this proviso, a
disposition of all or any portion of the capital stock of
Revlon Worldwide Corporation, National Health Care Group,
Inc. or ▇▇▇▇▇▇▇ of the Ritz Group Ltd. (but in the case of
▇▇▇▇▇▇▇ of the Ritz Group Ltd., only if it owns any of the
capital stock of Revlon Worldwide Corporation at the time of
such disposition) shall be considered an Asset Sale for
purposes of this Agreement,
(d) notwithstanding clause (b) of this proviso, a
disposition of any asset (other than assets specifically
excluded from this definition of "Asset Sale") of National
Health Care Group, Inc. or any of its Subsidiaries (other
than (i) prior to the Revlon Inclusion Date, Revlon
Worldwide and its Subsidiaries and (ii) from and after the
Revlon Inclusion Date, Revlon and its Subsidiaries) shall be
considered an Asset Sale for purposes of this Agreement; and
(e) notwithstanding clause (b) of this proviso,
prior to the Revlon Inclusion Date, a disposition of assets
by Revlon Worldwide or any of its Subsidiaries shall not be
considered an Asset Sale for purposes of this Agreement.
6
"Asset Sale Threshold" means the receipt on and after the
Effective Date by Mafco and its Subsidiaries of aggregate Net Cash Proceeds
from Asset Sales in an amount equal to $1 billion; provided, however, that the
Net Cash Proceeds from any Asset Sale which are applied pursuant to Section
2.05(b)(iv) or Section 2.06(b)(iii) shall not be included in the calculation
of the "Asset Sale Threshold".
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender Party and an assignee of such Lender
Party, and accepted by the Administrative Agent, in substantially the form of
Exhibit B hereto.
"Available Amount" of any Letter of Credit means, at any
time, the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to drawing).
"Bank" means First Nationwide Bank, A Federal Savings Bank,
and any successor thereto, including the surviving bank of the merger of the
Bank with and into California Federal.
"Bank Preferred Stock Document" means the Federal Stock
Charter of First Madison Bank, FSB, as supplemented by the First Supplementary
Section to Section 5 of the Charter of First Gibraltar Bank, FSB and the
Second Supplemental Section to Section 5 of the Charter of First Madison Bank,
FSB.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there
is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of
1% per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended
or terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal
to 100% minus the average of the daily percentages specified during
7
such three-week period by the Board of Governors of the Federal
Reserve System (or any successor thereto) for determining the maximum
reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in
the United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor thereto)
for insuring U.S. dollar deposits of Citibank in the United States;
and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of
parties to this Agreement.
"Borrower Collateral Account" has the meaning specified in
the Borrower Security Agreement.
"Borrower Parent" means Marvel V Holdings Inc., a Delaware
corporation.
"Borrower Parent Guaranty" means the Third Amended and
Restated Guaranty dated as of December 16, 1996 made by the Borrower Parent in
favor of the Lender Parties, the Term Credit Agreement Lenders, the Agents,
the Term Agents and the Collateral Agent, as such guaranty may be amended or
otherwise modified from time to time in accordance with its terms.
"Borrower Parent Security Agreement" means the Amended and
Restated Security Agreement dated as of December 16, 1996 made by the Borrower
Parent and The Bank of New York, in its capacity as voting trustee, to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Borrower Security Agreement" means the Fourth Amended and
Restated Borrower Security Agreement dated as of December 16, 1996 made by the
Borrower to the Collateral Agent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
8
"Borrower's Account" means the account of the Borrower
maintained by the Borrower with Citibank, N.A., at its office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇.
"Borrowing" means a Tranche A Revolving Credit Borrowing or
a Tranche B Revolving Credit Borrowing.
"Business Day" means a day of the year on which banks are
not required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market and banks are open for
business in London.
"C&F Guarantor" means Mafco Consolidated Holdings Inc., a
Delaware corporation (formerly known as C&F (Parent) Holdings Inc.).
"C&F Guaranty" means the Second Amended and Restated
Guaranty dated as of December 16, 1996 made by C&F Guarantor in favor of the
Lender Parties, the Term Credit Agreement Lenders, the Agents, the Term Agents
and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"C&F Pledge Agreement" means the Amended and Restated Pledge
Agreement dated as of December 16, 1996 made by C&F Guarantor to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Calculation Period" means, for any date in respect of any
common stock, the immediately preceding five Business Days during which such
common stock traded on the relevant national stock exchange or the Nasdaq
national market system.
"California Federal" means California Federal Bank, A Federal
Savings Bank.
"Capital Expenditures" means, for any period, the sum of (a)
all expenditures during such period for equipment, fixed assets, real property
or improvements, or for replacements or substitutions therefor or additions
thereto, that have a useful life of more than one year plus (b) the aggregate
principal amount of all Debt (including obligations under Capitalized Leases)
assumed or incurred in connection with any such expenditures.
"Capitalized Leases" has the meaning specified in clause (e)
of the definition of "Debt".
9
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or its Subsidiaries free and clear of all Liens and
having a maturity not greater than 180 days from the date of issuance thereof:
(a) direct obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in clause (c), is
organized under the laws of the United States or any State thereof and has
combined capital and surplus of at least $1,000,000,000, (c) commercial paper
in an aggregate amount of not more than $10,000,000 per issuer outstanding at
any time, issued by any corporation organized under the laws of any State of
the United States and rated at least "Prime-1" (or the then equivalent grade)
by ▇▇▇▇▇'▇ Investors Services, Inc. or "A-1" (or the then equivalent grade) by
Standard & Poor's Ratings Group or (d) shares of money market mutual or
similar funds having assets in excess of $100,000,000 and which invest
exclusively in assets satisfying the requirements of clauses (a) through (c)
of this definition.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"Cigar Guarantor" means Consolidated Cigar II Holdings Inc.,
a Delaware corporation.
"Cigar Guaranty" means the Third Amended and Restated Cigar
Guaranty dated as of December 16, 1996 made by Cigar Guarantor in favor of the
Lender Parties, the Term Credit Agreement Lenders, the Agents, the Term Agents
and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"Cigar Non-Operating Subsidiary" means C&F Guarantor.
"Cigar Pledge Agreement" means the Second Amended and
Restated Cigar Pledge Agreement dated as of December 16, 1996 made by Cigar
Guarantor and The Bank of New York, in its capacity as voting trustee, to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Citibank" has the meaning specified in the recital of
parties to this Agreement.
"Clean-Down Period" means any period of 30 consecutive days
during which the aggregate principal amount of Tranche A Revolving Credit
Advances (other than an aggregate principal amount of Tranche A Revolving
Credit Advances equal to the lesser of
10
(x) $50,000,000 and (y) an amount equal to the ▇▇▇▇▇ Utilization on any day
during such Clean-Down Period) and Letter of Credit Advances outstanding does
not exceed $0.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and the rulings issued
thereunder.
"▇▇▇▇▇▇▇" means The ▇▇▇▇▇▇▇ Company, Inc., a Delaware
corporation.
"▇▇▇▇▇▇▇ Guarantor" means ▇▇▇▇▇▇▇ (Parent) Holdings Inc.,
a Delaware corporation.
"▇▇▇▇▇▇▇ Guaranty" means the Third Amended and Restated
▇▇▇▇▇▇▇ Guaranty dated as of December 16, 1996 made by ▇▇▇▇▇▇▇ Guarantor in
favor of the Lender Parties, the Term Credit Agreement Lenders, the Agents,
the Term Agents and the Collateral Agent, as such guaranty may be amended or
otherwise modified from time to time in accordance with its terms.
"▇▇▇▇▇▇▇ Holdings" means ▇▇▇▇▇▇▇ Holdings Inc., a Delaware
corporation.
"▇▇▇▇▇▇▇ Non-Operating Subsidiaries" means ▇▇▇▇▇▇▇ Holdings
and ▇▇▇▇▇▇▇ Worldwide.
"▇▇▇▇▇▇▇ Pledge Agreement" means the Second Amended and
Restated Pledge Agreement dated as of December 16, 1996 made by ▇▇▇▇▇▇▇
Guarantor to the Collateral Agent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"▇▇▇▇▇▇▇ Tax Agreements" means (i) the Tax Allocation
Agreement dated as of August 24, 1990, as amended through the date hereof,
between Mafco and New ▇▇▇▇▇▇▇, (ii) the Tax Sharing Agreement dated as of
February 26, 1992, as amended through the date hereof, among Mafco, ▇▇▇▇▇▇▇
Finance Holdings Inc., ▇▇▇▇▇▇▇ and the Subsidiaries of ▇▇▇▇▇▇▇ party thereto,
(iii) the Tax Sharing Agreement dated as of February 26, 1992, as amended
through the date hereof, among Mafco, New ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Finance Holdings
Inc. and the Subsidiaries of ▇▇▇▇▇▇▇ Finance Holdings Inc. party thereto, (iv)
the Tax Equivalent Payment Agreement dated as of March 4, 1992, as amended
through the date hereof, between Mafco and ▇▇▇▇▇▇▇ Finance Holdings Inc., (v)
the Supplemental Tax Sharing Agreement dated as of February 26, 1992, as
amended through the date hereof, between ▇▇▇▇▇▇▇ and M&F, (vi) the Tax Sharing
Agreement dated as of May 27, 1993 among Mafco, ▇▇▇▇▇▇▇ Worldwide, ▇▇▇▇▇▇▇ and
its Subsidiaries party thereto, (vii) the Tax Sharing Agreement dated as of
May 27, 1993 among Mafco, ▇▇▇▇▇▇▇ Worldwide and the other Persons party
thereto, (viii) the Tax Sharing Agreement dated as of July 22, 1993 between
Mafco and ▇▇▇▇▇▇▇ Holdings, and (ix) the Tax Sharing Termination Agreement
11
dated as of May 27, 1993 among Mafco, New ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and the other
Persons party thereto.
"▇▇▇▇▇▇▇ Worldwide" means ▇▇▇▇▇▇▇ Worldwide Corporation,
a Delaware corporation.
"▇▇▇▇▇▇▇ Worldwide Indenture" has the meaning specified in
Schedule VI.
"▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇" means the Liquid Yield Option
Notes Due 2013 issued by ▇▇▇▇▇▇▇ Worldwide.
"▇▇▇▇▇▇▇ Worldwide Pledge Agreement" means the Amended and
Restated Non-Recourse Guaranty and Pledge Agreement dated as of December 16,
1996 made by ▇▇▇▇▇▇▇ Worldwide to the Collateral Agent, as such agreement may
be amended or otherwise modified from time to time in accordance with its
terms.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to be
subject to any Lien in favor of the Collateral Agent, the Lender Parties, the
Term Credit Agreement Lenders, the Agents and the Term Agents.
"Collateral Accounts" means the Borrower Collateral Account,
the Mafco Collateral Account, the Second Mafco Collateral Account and the L/C
Cash Collateral Account.
"Collateral Agent" has the meaning specified in the recital
of the parties hereto.
"Collateral Documents" means each Security Agreement and
each Pledge Agreement.
"Commitment" means a Tranche A Revolving Credit Commitment,
a Tranche B Revolving Credit Commitment or a Letter of Credit Commitment.
"Consolidated" for any Person refers to the consolidation of
the financial statements of such Person and its Subsidiaries in accordance
with GAAP.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type pursuant to
Section 2.11.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money; (b) all Obligations of such
Person for the deferred purchase price of property or services (other than
trade payables not overdue by more than 60 days
12
incurred in the ordinary course of such Person's business); (c) all
Obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments; (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired 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); (e) all Obligations of such Person as
lessee under leases that have been or should be, in accordance with GAAP,
recorded as capital leases ("Capitalized Leases"); (f) all Obligations,
contingent or otherwise, of such Person under acceptance, letter of credit or
similar facilities; (g) all Obligations of such Person to purchase, redeem,
retire, defease or otherwise acquire for value any capital stock of such
Person or any warrants, rights or options to acquire such capital stock; (h)
all Obligations of such Person in respect of Hedge Agreements; (i) all Debt of
others referred to in clauses (a) through (h) above guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (i) to pay or purchase such
Debt or to advance or supply funds for the payment or purchase of such Debt,
(ii) to purchase, sell or lease (as lessee or lessor) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss, (iii)
to supply funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (iv) otherwise to
assure a creditor against loss; and (j) all Debt referred to in clauses (a)
through (i) above secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights) owned
by such Person, even though such Person has not assumed or become liable for
the payment of such Debt. For all purposes of this Agreement and the other
Loan Documents, "Debt" shall not include Obligations of any Designated
Operating Company, Revlon, Marvel or any of their respective Subsidiaries in
respect of Hedge Agreements.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party
at any time, the amount of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01 at or prior to such time which
has not been so made as of such time; provided, however, that any Advance made
by the Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(c) shall not be considered a Defaulted Advance even if, at such
time, such Lender shall not have reimbursed the Administrative Agent therefor
as provided in Section 2.02(c). In the event that a portion of a Defaulted
Advance shall be deemed made pursuant to Section 2.16(a), the remaining
portion of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 on the same date as
the Defaulted Advance so deemed made in part.
13
"Defaulted Amount" means, with respect to any Lender Party
at any time, any amount required to be paid by such Lender Party to the
Administrative Agent, the Collateral Agent or any other Lender Party hereunder
or under any other Loan Document at or prior to such time which has not been
so paid as of such time, including, without limitation, any amount required to
be paid by such Lender to (a) the Issuing Bank pursuant to Section 2.03(c) to
purchase a portion of a Letter of Credit Advance made by the Issuing Bank, (b)
the Administrative Agent pursuant to Section 2.02(c) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Lender Party, (c) any other Lender Party
pursuant to Section 2.14 to purchase any interest or participating interest in
Advances owing to such other Lender Party and (d) the Administrative Agent,
the Collateral Agent or the Issuing Bank pursuant to Section 7.05 to reimburse
the Administrative Agent, the Collateral Agent or the Issuing Bank, as the
case may be, for such Lender Party's ratable share of any amount required to
be paid by the Lender Parties to the Administrative Agent, the Collateral
Agent or the Issuing Bank as provided therein. In the event that a portion of
a Defaulted Amount shall be deemed paid pursuant to Section 2.16(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be made hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party
that, at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take or be the subject of any action or proceeding of a type described
in Section 6.01(e).
"Defeased Debt Amount" means for any date of determination
for any Designated Person listed on Schedule VI an amount calculated in the
manner set forth on Schedule VI for such Designated Person or such other
amount as may be agreed by the Administrative Agent and the Borrower.
"Deposit Certificate" has the meaning specified in
Section 5.01(k).
"Designated ▇▇▇▇▇▇▇ Subsidiaries" means ▇▇▇▇▇▇▇ Holdings,
▇▇▇▇▇▇▇ Worldwide and ▇▇▇▇▇▇▇.
"Designated New World Subsidiaries" means New World
Guarantor, NWCG Holdings and New World; provided, however, that (i) on and
after the date of the sale, monetization or other disposal by Mafco or any of
its Subsidiaries of all of the News Corp. Preferred ADRs, New World Guarantor
shall no longer be a "Designated New World Subsidiary" and (ii) on and after
the consummation of the New World Acquisition, each of NWCG Holdings and New
World shall no longer be a "Designated New World Subsidiary".
"Designated Operating Companies" means (i) ▇▇▇▇▇▇▇, New
World and MCG, (ii) on and after the Revlon Inclusion Date, Revlon and (iii)
solely during the Marvel
14
Inclusion Period, Marvel; provided, however, that on and after the
consummation of the New World Acquisition, New World shall no longer be a
"Designated Operating Company".
"Designated Persons" means ▇▇▇▇▇▇▇ Guarantor, New World
Guarantor, C&F Guarantor and, on and after the Revlon Inclusion Date, Revlon
Guarantor; provided, however, that on and after the date of the sale,
monetization or other disposal by Mafco or any of its Subsidiaries of all of
the News Corp. Preferred ADRs, New World Guarantor shall no longer be a
"Designated Person".
"Documentation Agent" has the meaning specified in the
recital of parties to this Agreement.
"Dollars" and the sign "$" each mean lawful money of the
United States.
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party, as the case may be, or
such other office of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) any commercial bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of $1,000,000,000; (b) any savings and loan association or
savings bank organized under the laws of the United States, or any State
thereof, and having a net worth determined in accordance with GAAP in excess
of $500,000,000; (c) any commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development ("OECD") or has concluded special lending arrangements with the
International Monetary Fund Associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, so long as such bank is acting through a
branch or agency located in the United States, in the Cayman Islands or in the
country in which it is organized or another country that is described in this
clause (c); (d) the central bank of any country that is a member of the OECD;
(e) any finance company, insurance company or other financial institution or
fund (whether a corporation, partnership, trust or other entity) that (i) is
not affiliated with the Borrower, (ii) is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and (iii) has total assets in excess of $500,000,000; and (f) any other Person
(other than an Affiliate of the Borrower) approved by the Administrative Agent
and the Borrower, such approval not to be unreasonably withheld.
15
"Environmental Action" means any administrative, regulatory
or judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, investigation, proceeding, consent order or
consent agreement based upon or arising out of any Environmental Law or any
Environmental Permit, including without limitation (a) any claim by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any Environmental
Law and (b) any claim by any third party seeking damages, contribution, or
injunctive relief arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" means any federal, state or local law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award relating to the environment, health or safety including, without
limitation, CERCLA, the Resource Conservation and Recovery Act, the Hazardous
Materials Transportation Act, the Clean Water Act, the Toxic Substances
Control Act, the Clean Air Act, the Safe Drinking Water Act, the Atomic Energy
Act, the Federal Insecticide, Fungicide and Rodenticide Act and the
Occupational Safety and Health Act.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under any
Environmental Law.
"Equity Contribution Agreement" means the Amended and
Restated Equity Contribution Agreement dated as of December 16, 1996, between
the Borrower and the Borrower Parent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" of any Person means any other Person that
for purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of Section
414 of the Code.
"ERISA Event" with respect to any Person means (a) the
occurrence of a reportable event, within the meaning of Section 4043 of ERISA,
with respect to any Plan of such Person or any of its ERISA Affiliates unless
the 30-day notice requirement with respect to such event has been waived by
the PBGC; (b) the provision by the administrator of any Plan of such Person or
any of its ERISA Affiliates of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (c) the
cessation of operations at a facility of such Person or any of its ERISA
Affiliates in the circumstances described in Section 4062(e) of ERISA; (d) the
withdrawal by such Person or any of its ERISA Affiliates from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
16
as defined in Section 4001(a)(2) of ERISA; (e) the failure by such Person or
any of its ERISA Affiliates to make a payment to a Plan described in Section
302(f)(1) of ERISA; (f) the adoption of an amendment to a Plan of such Person
or any of its ERISA Affiliates requiring the provision of security to such
Plan, pursuant to Section 307 of ERISA; or (g) the institution by the PBGC of
proceedings to terminate a Plan of such Person or any of its ERISA Affiliates,
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that would constitute grounds for the
termination of, or the appointment of a trustee to administer, such Plan;
provided, however, that an event described in clause (a), (c) or (d) of this
definition, or in clause (b) of this definition solely with respect to a
standard termination under Section 4041(b) of ERISA, shall be an ERISA Event
only if such event is reasonably likely to result in a material liability of
such Person or any of its ERISA Affiliates.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the Assignment
and Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an interest
rate per annum equal to the rate per annum obtained by dividing (a) the
average (rounded upward to the nearest whole multiple of 1/100 of 1% per
annum, if such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of Citibank in
London, England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest Period
for a period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period. The
Eurodollar Rate for each Interest Period shall be determined by the
Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from Citibank two Business Days before
the first day of such Interest Period, subject, however, to the provisions of
Section 2.07.
"Eurodollar Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender Party for
any Interest Period for any Advance means the reserve percentage applicable
during such Interest Period
17
(or if more than one such percentage shall be so applicable, the daily average
of such percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Lender Party with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exchange Agreement" means the Exchange Agreement dated as
of October 3, 1994 among FN Parent, FN Holdings and ▇▇▇▇▇▇ ▇. ▇▇▇▇.
"Existing Credit Agreement" has the meaning specified in
the Preliminary Statements.
"Existing Lenders" has the meaning specified in the
Preliminary Statements.
"Facility" means the Tranche A Revolving Credit Facility,
the Tranche B Revolving Credit Facility or the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, 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 Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"FG Guarantor" means First Gibraltar Guarantor Corp.,
a Delaware corporation.
"Financial Institutions" has the meaning specified in the
recital of parties to this Agreement.
"First Gibraltar" means First Gibraltar Holdings Inc.,
a Delaware corporation.
"First Gibraltar Charter Document" means the restated
certificate of incorporation of First Gibraltar.
18
"First Gibraltar Credit Agreement" means the $150,000,000
Credit Agreement dated as of September 27, 1996 among First Gibraltar, FG
Guarantor, the banks and other financial institutions party thereto,
NationsBank, N.A., as administrative agent, NationsBanc Capital Markets, Inc.,
as syndication agent and Citibank, as documentation agent, as the same may be
amended, modified or otherwise supplemented from time to time.
"First Gibraltar Loan Agreement" means the Amended and
Restated Loan Agreement dated as of December 16, 1996 between the Borrower
Parent and First Gibraltar, as amended or otherwise modified from time to time
in accordance with its terms.
"Flavors Guarantor" means Flavors (Parent) Holdings Inc.,
a Delaware corporation.
"Flavors Guaranty" means the Third Amended and Restated
Flavors Guaranty dated as of December 16, 1996 made by Flavors Guarantor in
favor of the Lender Parties, the Term Credit Agreement Lenders, the Agents,
the Term Agents and the Collateral Agent, as such guaranty may be amended or
otherwise modified from time to time in accordance with its terms.
"Flavors Non-Operating Subsidiary" means C&F Guarantor.
"Flavors Pledge Agreement" means the Second Amended and
Restated Flavors Pledge Agreement dated as of December 16, 1996 made by
Flavors Guarantor and The Bank of New York, in its capacity as voting trustee,
to the Collateral Agent, as such agreement may be amended or otherwise
modified from time to time in accordance with its terms.
"FN Documents" means the FN Holdings Debt Document, the FN
Holdings New Debt Document, the Second New FN Holdings Debt Document, the FN
Parent Debt Document, the Exchange Agreement and the Stockholders Agreement.
"FN Escrow" means First Nationwide Escrow Corp., a
Delaware corporation.
"FN Holdings" means First Nationwide Holdings Inc.,
a Delaware corporation.
"FN Holdings Debt" means the 12-1/4% Senior Notes due 2001
issued by FN Holdings in an aggregate principal amount equal to $200,000,000.
"FN Holdings Debt Document" means the Indenture dated as of
July 15, 1994 made by FN Holdings in favor of The First National Bank of
Boston, as trustee, in
19
connection with the FN Holdings Debt and any other agreement or instrument
which governs the terms of the FN Holdings Debt.
"FN Holdings New Debt" means the 9-1/8% Senior Subordinated
Notes Due 2003 issued by FN Holdings in an aggregate principal amount equal to
$140,000,000.
"FN Holdings New Debt Document" means the Indenture dated as
of January 31, 1996 made by FN Holdings in favor of The Bank of New York, as
trustee, in connection with the FN Holdings New Debt and any other agreement
or instrument which governs the terms of the FN Holdings New Debt.
"FN Holdings Preferred Stock" means the $150,000,000
liquidation value of Cumulative Perpetual Preferred Stock issued by FN
Holdings and any shares of Cumulative Perpetual Preferred Stock to be issued
in lieu of cash dividends payable on the FN Holdings Preferred Stock.
"FN Management Incentive Plan" means the Management
Incentive Plan for Certain Employees of the Bank established by FN Holdings to
provide long-term incentives to certain key executives of the Bank.
"FN Parent" means First Nationwide (Parent) Holdings Inc.,
a Delaware corporation.
"FN Parent Debt" means the 12-1/2% Senior Notes due 2003
issued by FN Parent in an aggregate principal amount equal to $455,000,000.
"FN Parent Debt Document" means the Indenture dated as of
April 15, 1996 made by FN Parent in favor of The Bank of New York, as trustee,
in connection with the FN Parent Debt and any other agreement or instrument
which governs the terms of the FN Parent Debt.
"FN Parties" means the Bank, FN Holdings and FN Parent.
"FN Tax Agreement" means the Tax Sharing Agreement dated as
of January 1, 1994 among Mafco, FN Holdings, the Bank and certain Subsidiaries
of FN Holdings and the Bank.
"Four Star" means Four Star Holdings Corp., a Delaware
corporation.
"Four Star Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by Four Star and The Bank of New York, in its capacity as voting trustee, to
the Collateral
20
Agent, as such agreement may be amended or otherwise modified from time to
time in accordance with its terms.
"Fully Satisfied" shall mean, with respect to the Payment
Obligations as of any date, that, on or before such date, (a) the principal of
and interest accrued to such date on all outstanding Advances shall have been
paid in full in cash, (b) the Commitments shall have been terminated in full,
(c) all outstanding Letters of Credit shall have been (i) terminated or (ii)
cash collateralized by an amount sufficient in the reasonable judgment of the
Administrative Agent and the Required Lenders to secure any claims under such
outstanding Letters of Credit or (iii) secured by one or more letters of
credit on terms and conditions, and with one or more financial institutions,
reasonably satisfactory to the Administrative Agent and the Required Lenders
and (d) all fees, expenses and other amounts then due and payable which
constitute Payment Obligations shall have been paid in cash; provided,
however, that on such date none of the Administrative Agent and the Lender
Parties shall have made any claims in respect of Payment Obligations against
the Borrower or any other Loan Party under any provision of any of the Loan
Documents that has not been cash collateralized by an amount sufficient in the
reasonable judgment of the Administrative Agent, the Required Lenders and any
such Lender Party (if such Lender Party is not one of the Lenders constituting
the Required Lenders) to secure such claim.
"GAAP" means 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 referred to in
Section 4.01(f), except that with respect to (x) the preparation of any
financial statement required to be furnished pursuant to clause (i), (ii) or
(iii) of Section 5.01(j) and (y) changes to financial statement presentation
and accounting policies contemplated by Section 5.02(h), "GAAP" shall mean
such principles as in effect from time to time in the United States of
America.
"Guarantor" means each of Mafco, Borrower Parent, ▇▇▇▇▇▇▇
Guarantor, New World Guarantor, Flavors Guarantor, Cigar Guarantor, C&F
Guarantor and, on and and after the Revlon Inclusion Date, Revlon Guarantor;
provided, however, that on and after the date of the sale, monetization or
other disposal by Mafco or any of its Subsidiaries of all of the News Corp.
Preferred ADRs, New World Guarantor shall no longer be a "Guarantor".
"Guaranty" means each of the Borrower Parent Guaranty, the
C&F Guaranty, the Cigar Guaranty, the ▇▇▇▇▇▇▇ Guaranty, the Flavors Guaranty,
the Mafco Guaranty, the New World Guaranty and, on and after the Revlon
Inclusion Date, the Revlon Guaranty; provided, however, that on and after the
date of the sale, monetization or other disposal by Mafco or any of its
Subsidiaries of all of the News Corp. Preferred ADRs, the New World Guaranty
shall no longer be a "Guaranty".
21
"Hazardous Materials" means (a) petroleum or petroleum
products, natural or synthetic gas, asbestos in any form that is or could
become friable, urea formaldehyde foam insulation and radon gas, (b) any
substances defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar import, under any
Environmental Law and (c) any other substance exposure to which is regulated
under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar agreements.
"Indemnified Party" has the meaning specified in Section
8.04(c).
"Initial Date" means, for purposes of Section 2.13, in the
case of the Administrative Agent and each Financial Institution, the date of
its execution and delivery of this Agreement and, in the case of each Lender
other than a Financial Institution, the date of the Assignment and Acceptance
pursuant to which it becomes a Lender.
"Initial Issuing Bank" means Citibank, N.A.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date of
such Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be one, two, three or six months, as the
Borrower may, upon notice received by the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the first
day of such Interest Period, select; provided, however, that
(i) the Borrower may not select (x) any Interest Period with
respect to any Eurodollar Rate Advance under the Tranche A Revolving
Credit Facility which ends after June 3, 1999 and (y) any Interest
Period with respect to any Eurodollar Rate Advance under the Tranche
B Revolving Credit Facility which ends after June 30, 1997;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar
22
month, the last day of such Interest Period shall occur on the next
preceding Business Day; and
(iii) whenever the first day of any Interest Period occurs
on a day in a calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock, warrants,
rights, options, debt obligations or other securities of such Person, any
capital contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the investor
incurs Debt of the types referred to in clauses (i) and (j) of the definition
of "Debt" in respect of such Person.
"Issuing Bank" means the Initial Issuing Bank and each
Eligible Assignee to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 8.07.
"L/C Cash Collateral Account" has the meaning specified in
the Borrower Security Agreement.
"L/C Certificate" means a certificate of the Borrower
delivered to the Administrative Agent in respect of a Letter of Credit Advance
(A) to the effect that on the date of delivery (i) the representations and
warranties contained in the Loan Documents are correct in all material
respects on and as of such date, as though made on and as of such date (except
to the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties were true,
correct and complete in all material respects on and as of such earlier date
and (ii) no event has occurred and is continuing which constitutes a Default
and (B) specifying the Type of Advance such Letter of Credit Advance shall be
and, if such Letter of Credit Advance is to be a Eurodollar Rate Advance, the
Interest Period for such Letter of Credit Advance.
"L/C Related Documents" has the meaning specified in Section
2.04(b)(ii).
"Lender Party" means any Lender or the Issuing Bank.
"Lenders" means the Financial Institutions listed on the
signature pages hereof and each Eligible Assignee that shall become a party
hereto pursuant to Section 8.07.
"Letter of Credit" has the meaning specified in Section
2.01(c).
23
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Tranche A Revolving Credit Lender pursuant to Section
2.03(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to the
Issuing Bank at any time, the amount set forth opposite the Issuing Bank's
name on Schedule I hereto under the caption "Letter of Credit Commitment" or,
if the Issuing Bank has entered into one or more Assignments and Acceptances,
the amount set forth for the Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 8.07(c) as the Issuing Bank's "Letter
of Credit Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the amount of the Issuing Bank's Letter of Credit Commitment at such
time.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means this Agreement, the Notes, each Letter
of Credit Agreement, each Guaranty, each Collateral Document, the Equity
Contribution Agreement and the First Gibraltar Loan Agreement.
"Loan Party" means each of the Borrower, each Guarantor,
M&F, ▇▇▇▇▇▇▇, Four Star, New ▇▇▇▇▇▇▇ and First Gibraltar.
"Look-Forward Certificate" has the meaning specified in
Section 5.01(k).
"▇▇▇▇▇ Utilization" means, on any date, the aggregate amount
of cash applied by the Borrower from and after the Effective Date, as shown in
the most recent report furnished to the Administrative Agent and the Lender
Parties pursuant to the provisions of Section 5.01(p), to the purchase of the
▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇ or the payment, in cash, of the exchange price to a
holder of ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇ in respect of such holder's ▇▇▇▇▇▇▇
Worldwide ▇▇▇▇▇.
"M&F" means MacAndrews & Forbes Holdings Inc., a Delaware
corporation.
"M&F Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by M&F to the
24
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Mafco" has the meaning specified in the Preliminary
Statements.
"Mafco Collateral Account" has the meaning specified in the
Mafco Security Agreement.
"Mafco Guaranty" means the Fourth Amended and Restated Mafco
Guaranty dated as of December 16, 1996 made by Mafco in favor of the Lender
Parties, the Term Credit Agreement Lenders, the Agents, the Term Agents and
the Collateral Agent, as such guaranty may be amended or otherwise modified
from time to time in accordance with its terms.
"Mafco Pledge Agreement" means the Second Amended and
Restated Pledge Agreement dated as of December 16, 1996 made by Mafco and The
Bank of New York, in its capacity as voting trustee, to the Collateral Agent,
as such agreement may be amended or otherwise modified from time to time in
accordance with its terms.
"Mafco Security Agreement" means the Fourth Amended and
Restated Mafco Security Agreement dated as of December 16, 1996 made by Mafco
to the Collateral Agent, as such agreement may be amended or otherwise
modified from time to time in accordance with its terms.
"Managing Agents" has the meaning specified in the recital
of parties to this Agreement.
"Mandatory Clean-Down Period" means, (i) the 30-day period
commencing on July 1, 1997 and terminating on July 30, 1997, if a Clean-Down
Period has not commenced (after the date of this Agreement) prior to July 1,
1997 and (ii) thereafter, for each 12-month period commencing on August 1 and
terminating on July 31, the 30 day period commencing on July 2 and terminating
on July 31, if a Clean-Down Period has not commenced prior to July 2 during
such 12-month period; provided, however, that if a Clean-Down Period has not
commenced by the date that is 30 days prior to the end of any period of 15
consecutive months, a Mandatory Clean-Down Period shall commence on such date.
"Margin Stock" has the meaning specified in Regulation U of
the Board of Governors of the Federal Reserve System and any successor
regulations thereto, as in effect from time to time.
"Marvel" means Marvel Entertainment Group, Inc., a Delaware
corporation.
25
"Marvel IV Required Lenders" means at any time Lenders and
Term Credit Agreement Lenders owed or holding at least a majority in interest
of the sum of (a) the aggregate principal amount of the Advances outstanding
at such time, (b) the aggregate principal amount of the Debt outstanding at
such time under the Term Credit Agreement, (c) the aggregate Available Amount
of all Letters of Credit outstanding at such time, (d) the aggregate Unused
Tranche A Revolving Credit Commitment, (e) the aggregate Unused Tranche B
Revolving Credit Commitment and (f) the aggregate unused "Commitments" under
the Term Credit Agreement (provided that, for purposes hereof, neither the
Borrower, nor any of its Affiliates, if a Lender or a Term Credit Agreement
Lender, shall be included in (x) the Lenders and the Term Credit Agreement
Lenders holding such amount of the Advances, the Debt or the Available Amount
of all Letters of Credit or having such amount of the Unused Tranche A
Revolving Credit Commitment, Unused Tranche B Revolving Credit Commitment or
the "Commitments" under the Term Credit Agreement or (y) determining the
aggregate unpaid principal amount of the Advances or such Debt, the total
Unused Tranche A Revolving Credit Commitment, the total Unused Tranche B
Revolving Credit Commitment or the total "Commitments" under the Term Credit
Agreement); provided, however, that if any Lender shall be a Defaulting Lender
at such time or any Term Credit Agreement Lender shall be a "Defaulting
Lender" under the Term Credit Agreement at such time, there shall be excluded
from the determination of Marvel IV Required Lenders at such time (i) the
aggregate principal amount of the Advances owing to such Lender (in its
capacity as Lender) and outstanding at such time, (ii) the aggregate principal
amount of Debt under the Term Credit Agreement owing to such Term Credit
Agreement Lender and outstanding at such time, (iii) such Lender's Pro Rata
Share of the aggregate Available Amount of all Letters of Credit issued by
such Lender as of such time, (iv) the aggregate Unused Tranche A Revolving
Credit Commitment and Unused Tranche B Revolving Credit Commitment of such
Lender at such time and (v) the aggregate unused portion of the "Commitments"
of such Term Credit Agreement Lender under the Term Credit Agreement at such
time; provided, further, that on and after the Term Credit Agreement
Termination Date, the Marvel IV Required Lenders shall be the Required Lenders
hereunder. For purposes of this definition, the aggregate principal amount of
Letter of Credit Advances owing to the Issuing Bank and the Available Amount
of each Letter of Credit shall be considered to be owed to the Lenders ratably
in accordance with their respective Tranche A Revolving Credit Commitment.
"Marvel Inclusion Period" means the period commencing on the
date that Mafco or any of its Affiliates acquires the New Marvel Shares and
terminating on the later to occur of (x) the Tranche B Termination Date and
(y) the Term Credit Agreement Termination Date.
"Material Adverse Change" means, with respect to any Person,
a material adverse change in the condition (financial or otherwise),
operations, assets, business or prospects of such Person and its Subsidiaries,
taken as a whole.
26
"Material Adverse Effect" means, with respect to any Person,
a material adverse effect upon (a) the condition (financial or otherwise),
operations, assets, business or prospects of such Person and its Subsidiaries,
taken as a whole, or (b) the ability of a Loan Party to perform its
obligations under any Loan Document, or (c) the rights and remedies of the
Administrative Agent, the Collateral Agent or any Lender Party under any Loan
Document.
"MCG" means Mafco Consolidated Group Inc., a Delaware
corporation.
"MCG Tax Agreement" means the Tax Sharing Agreement dated as
of June 15, 1995 among Mafco, MCG and Subsidiaries of MCG party thereto.
"Multiemployer Plan" of any Person means a multiemployer
plan, as defined in Section 4001(a)(3) of ERISA, which is subject to Title IV
of ERISA, and to which such Person or any of its ERISA Affiliates is making or
accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single
employer plan, as defined in Section 4001(a)(15) of ERISA, which is subject to
Title IV of ERISA, and (a) that is maintained for employees of such Person or
any of its ERISA Affiliates and at least one Person other than such Person and
its ERISA Affiliates or (b) that was so maintained and in respect of which
such Person or any of its ERISA Affiliates could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance by any
Person of any Debt or capital stock, any securities convertible into or
exchangeable for capital stock or any warrants, rights or options to acquire
capital stock, the sum of (i) the aggregate amount of cash received from time
to time by or on behalf of such Person in connection with such transaction
plus (ii) the aggregate principal amount of any Debt listed on Schedule VII
hereto that is assumed, directly or indirectly, by any Person (other than
Mafco or an Affiliate of Mafco) in connection with, or as a result of, such
transaction, after deducting therefrom only (a) reasonable and customary
brokerage commissions, underwriting fees and discounts, legal fees and
expenses, finder's fees, accountants' fees and expenses and other similar
fees, expenses and commissions, (b) the amount of taxes payable or estimated
in good faith to be payable within 12 months following the date of the
consummation of such transaction in connection with or as a result of such
transaction and (c) the amount of any Debt that, by the terms of such Debt, is
required to be repaid upon such disposition, in each case to the extent, but
only to the extent, that the amounts so deducted are payable to a Person that
is not an Affiliate (other than such amounts that are payable by the Borrower
and its Subsidiaries to an Affiliate
27
pursuant to a Related Document) and are properly attributable to such
transaction or to the asset that is the subject thereof.
"Net Equity Value" means for any day of determination for
any Designated Person:
(i) with respect to ▇▇▇▇▇▇▇ Guarantor, an amount (not less
than $0) equal to the excess of (A) the product of the number of
shares of common stock of ▇▇▇▇▇▇▇ owned directly or indirectly by
▇▇▇▇▇▇▇ Guarantor times the average closing price during the
Calculation Period relating to such day of determination of such
common stock on the New York Stock Exchange over (B) the Defeased
Debt Amount of ▇▇▇▇▇▇▇ Guarantor;
(ii) with respect to New World Guarantor, (x) prior to the
date of the consummation of the New World Acquisition, an amount (not
less than $0) equal to the excess of (A) the product of the number of
shares of Class B common stock of New World owned directly or
indirectly by New World Guarantor times the average closing price of
the Class A common stock during the Calculation Period relating to
such day of determination for such Class A Common Stock on either the
New York Stock Exchange or the Nasdaq National Market System over (B)
the Defeased Debt Amount of New World Guarantor and (y) on and after
the date of the consummation of the New World Acquisition, an amount
(not less than $0) equal to the excess of (1) the product of the
number of News Corp. Preferred ADRs pledged in favor of the
Collateral Agent under the Collateral Documents times, the average
closing price of the News Corp. Preferred ADRs during the Calculation
Period relating to such day of determination for such News Corp.
Preferred ADRs on either the New York Stock Exchange or the Nasdaq
National Market System over (2) the product of (A) the aggregate
principal amount of Debt outstanding on such day of determination
under the Term Credit Agreement times (B) 1.25;
(iii) with respect to C&F Guarantor, an amount (not less
than $0) equal to the product of the number of shares of common stock
of MCG owned directly or indirectly by C&F Guarantor times the
average closing price during the Calculation Period relating to such
day of determination of such common stock on the New York Stock
Exchange; and
(iv) with respect to Revlon Guarantor (on and after the
Revlon Inclusion Date), an amount (not less than $0) equal to the
excess of (A) the product of the number of shares of common stock of
Revlon owned directly or indirectly by Revlon Guarantor times the
average closing price during the Calculation Period relating to such
day of determination of such common stock on the New York Stock
Exchange over (B) the Defeased Debt Amount of Revlon Guarantor.
28
"Net Residual Value" means for any day of determination an
amount equal to the aggregate Net Equity Value of the Designated Persons on
such day.
"New ▇▇▇▇▇▇▇" means New ▇▇▇▇▇▇▇ Holdings Inc., a Kansas
corporation.
"New ▇▇▇▇▇▇▇ Pledge Agreement" means the Amended and
Restated Non-Recourse Guaranty and Pledge Agreement dated as of December 16,
1996 made by New ▇▇▇▇▇▇▇ and The Bank of New York, in its capacity as voting
trustee, to the Collateral Agent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"New Marvel Shares" means all shares of capital stock of
Marvel issued after the date hereof and received by ▇▇▇▇▇▇▇ or any of its
Affiliates.
"New World" means New World Communications Group
Incorporated, a Delaware corporation.
"New World Acquisition" means the acquisition by News Corp.
of NWCG Holdings and the shares of Class B common stock of New World held by
New World Guarantor pursuant to the News Corp. Contract and related documents.
"New World Guarantor" means NWCG (Parent) Holdings
Corporation, a Delaware corporation.
"New World Guaranty" means the Fourth Amended and Restated
New World Guaranty dated as of December 16, 1996 made by New World Guarantor
in favor of the Lender Parties, the Term Credit Agreement Lenders, the Agents,
the Term Agents and the Collateral Agent, as such guaranty may be amended or
otherwise modified from time to time in accordance with its terms.
"New World Pledge Agreement" means the Second Amended and
Restated Pledge and Assignment Agreement dated as of December 16, 1996 made by
New World Guarantor to the Collateral Agent, as such agreement may be amended
or otherwise modified from time to time in accordance with its terms.
"Newco" means DROF Holdings Inc., a Delaware corporation.
"Newco Loan" means the loan by First Gibraltar to Newco in
an aggregate principal amount of $150,000,000 for the sole purpose of
purchasing the FN Holdings Preferred Stock.
29
"News Corp." means The News Corporation Limited, a South
Australia corporation.
"News Corp. Contract" means the Stock Purchase Agreement
dated as of September 24, 1996 among New World Guarantor, News Corp. and Fox
Television Stations, Inc., as such agreement may be amended, modified or
supplemented in accordance with the terms of the Loan Documents.
"News Corp. Preferred ADRs" means the American Depositary
Shares of News Corp., each of which represents four fully paid and
nonassessable Preferred Limited Voting Ordinary Shares, of A $.50 each of
News Corp., received by New World Guarantor pursuant to the terms of the News
Corp. Contract.
"Nonratable Assignment" means an assignment by a Lender
Party pursuant to Section 8.07(a) of a portion of its rights and obligations
under this Agreement, other than an assignment of a uniform, and not a
varying, percentage of all of the rights and obligations of such Lender Party
under and in respect of all of the Facilities (other than the Letter of Credit
Facility).
"Notes" means the Tranche A Revolving Credit Notes and the
Tranche B Revolving Credit Notes.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Termination" has the meaning specified in Section
2.01(c).
"NWCG Holdings" means NWCG Holdings Corporation, a Delaware
corporation.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the
right of any creditor to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, disputed,
undisputed, legal, equitable, secured or unsecured, and whether or not such
claim is discharged, stayed or otherwise affected by any proceeding referred
to in Section 6.01(e). Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other
amounts payable by any Loan Party under any Loan Document and (b) the
obligation
30
to reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion, may elect to pay or advance on behalf of such
Loan Party.
"Original Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Original Lenders" has the meaning specified in the
Preliminary Statements.
"Other Taxes" has the meaning specified in Section 2.13(b).
"Original Transaction" has the meaning specified in the
Preliminary Statements.
"Payment Obligations" shall mean all principal, interest,
fees, Letter of Credit commissions, charges, expenses, attorneys' fees and
expenses, indemnities and any other amounts payable by the Loan Parties under
the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any successor agency or entity performing substantially the same functions.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pledge Agreements" means the C&F Pledge Agreement, the
Cigar Pledge Agreement, the ▇▇▇▇▇▇▇ Pledge Agreement, the ▇▇▇▇▇▇▇ Worldwide
Pledge Agreement, the Flavors Pledge Agreement, the Four Star Pledge
Agreement, the Mafco Pledge Agreement, the M&F Pledge Agreement, the New
▇▇▇▇▇▇▇ Pledge Agreement, the New World Pledge Agreement, the Second ▇▇▇▇▇▇▇
Pledge Agreement and, on and after the Revlon Inclusion Date, the Revlon
Pledge Agreement; provided, however, that, on and after the date of the sale,
monetization or other disposal by Mafco or any of its Subsidiaries of all of
the News Corp. Preferred ADRs, the New World Pledge Agreement shall no longer
be a "Pledge Agreement".
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the numerator
of which is the amount of such Lender's Tranche A Revolving Credit Commitment
at such time and the denominator of which is the Tranche A Revolving Credit
Facility at such time.
"Register" has the meaning specified in Section 8.07(c).
31
"Related Documents" means the ▇▇▇▇▇▇▇ Tax Agreements, the FN
Tax Agreement and the MCG Tax Agreement.
"Required Lenders" means at any time Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time, (c) the aggregate
Unused Tranche A Revolving Credit Commitment and (d) the aggregate Unused
Tranche B Revolving Credit Commitment (provided that, for purposes hereof,
neither the Borrower, nor any of its Affiliates, if a Lender, shall be
included in (x) the Lenders holding such amount of the Advances or the
Available Amount of all Letters of Credit or having such amount of the Unused
Tranche A Revolving Credit Commitment or the Unused Tranche B Revolving Credit
Commitment or (y) determining the aggregate unpaid principal amount of the
Advances or the total Unused Tranche A Revolving Credit Commitment or the
total Unused Tranche B Revolving Credit Commitment); provided, however, that
if any Lender shall be a Defaulting Lender at such time, there shall be
excluded from the determination of Required Lenders at such time (i) the
aggregate principal amount of the Advances owing to such Lender (in its
capacity as a Lender) and outstanding at such time, (ii) such Lender's Pro
Rata Share of the aggregate Available Amount of all Letters of Credit issued
by such Lender as of such time, (iii) the aggregate Unused Tranche A Revolving
Credit Commitment of such Lender at such time and (iv) the aggregate Unused
Tranche B Revolving Credit Commitment of such Lender at such time. For
purposes of this definition, the aggregate principal amount of Letter of
Credit Advances owing to the Issuing Bank and the Available Amount of each
Letter of Credit shall be considered to be owed to the Tranche A Revolving
Credit Lenders ratably in accordance with their respective Tranche A Revolving
Credit Commitments.
"Revlon" means Revlon, Inc., a Delaware corporation.
"Revlon Guarantor" means Revlon Guarantor Corp., a Delaware
corporation.
"Revlon Guaranty" means the Revlon Guaranty to be made, at
the Borrower's option, by Revlon Guarantor in favor of the Lender Parties, the
Term Credit Agreement Lenders, the Agents, the Term Agents and the Collateral
Agent in substantially the form of Exhibit E-8, as such guaranty may be
amended or otherwise modified from time to time in accordance with its terms.
"Revlon Holdings Statement" shall mean a statement that the
sum of the fair market value of Revlon Worldwide Corporation plus the fair
market value of National Health Care Group, Inc. constitutes at least 95% of
the fair market value of Revlon Holdings Inc.
"Revlon Inclusion Date" means the date on which the
Administrative Agent and the Term Administrative Agent deliver a notice to the
Borrower that the Administrative
32
Agent or the Collateral Agent, as the case may be, shall have received, in
form and substance satisfactory to the Administrative Agent and in sufficient
copies for each Lender (or the requirement that such document be delivered
shall have been duly waived):
(i) certified copies of the resolutions of the
board of directors of Revlon Guarantor approving the Revlon
Guaranty and the Revlon Pledge Agreement, and of all
documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to the Revlon
Guaranty and the Revlon Pledge Agreement;
(ii) a certificate of the Secretary or an Assistant
Secretary of Revlon Guarantor certifying the names and true
signatures of the officers of Revlon Guarantor authorized to
sign the Revlon Guaranty and the Revlon Pledge Agreement;
(iii) a copy of a certificate of the Secretary of
State of the state of incorporation of each of National
Health Care Group Inc., Revlon Guarantor, Revlon Holdings
Inc., Revlon Worldwide Corporation and Revlon, dated
reasonably near the Revlon Inclusion Date, listing the
charter of such Person and each amendment thereto on file in
his office and certifying that (A) such amendments are the
only amendments to such Person's charter on file in his
office, (B) such Person has paid all franchise taxes to the
date of such certificate and (C) such Person is duly
incorporated or organized and in good standing under the
laws of such state;
(iv) (A) a certificate of each of National Health
Care Group Inc., Revlon Guarantor, Revlon Holdings Inc. and
Revlon Worldwide Corporation signed on behalf of such Person
by its President or a Vice President and its Secretary or
any Assistant Secretary, dated as of the Revlon Inclusion
Date (the statements made in such certificate shall be true
on and as of the Revlon Inclusion Date), certifying as to
(1) the absence of any amendments to the charter of such
Person since the date of the Secretary of State's
certificate referred to in clause (iii) above, (2) the
trueness and correctness of the bylaws of such Person
attached to such certificate, (3) the due incorporation and
good standing of such Person as a corporation under the laws
of the relevant state of incorporation, and the absence of
any proceeding for the dissolution or liquidation of such
Person, (4) the truth in all material respects of the
representations and warranties made by such Person contained
in the Revlon Guaranty and the Revlon Pledge Agreement as
though made on and as of the Revlon Inclusion Date and (5)
the absence of any event occurring and continuing, or
resulting from the Revlon Inclusion Date, that constitutes a
Default and (B) a certificate of Revlon Guarantor signed on
behalf of Revlon
33
Guarantor by its President or a Vice President and its
Secretary or any Assistant Secretary, dated as of the Revlon
Inclusion Date (the statements made in such certificate
shall be true on and as of the Revlon Inclusion Date),
certifying as to (1) the absence of any amendments to the
charter of Revlon since the date of the Secretary of State's
Certificate referred to in clause (iii) above, (2) the
trueness and correctness of the bylaws of Revlon attached to
such certificate and (3) the due incorporation and good
standing of Revlon as a corporation organized under the laws
of the State of Delaware, and the absence of any proceeding
for the dissolution or liquidation of Revlon;
(v) the Revlon Guaranty in substantially the
form of Exhibit E-8, duly executed by Revlon Guarantor;
(vi) the Revlon Pledge Agreement in substantially
the form of Exhibit F-12, duly executed by Revlon Guarantor,
together with (1) certificates representing the Pledged
Shares referred to in the Revlon Pledge Agreement
accompanied by undated stock powers executed in blank, (2)
acknowledgment copies or stamped receipt copies of financing
statements, duly filed on or before such date under the
Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary or desirable in
order to perfect the Liens created by the Revlon Pledge
Agreement, covering the Collateral described in the Revlon
Pledge Agreement, and (3) completed requests for
information, dated on or before such date listing the
financing statements referred to in clause (2) above and all
other effective financing statements filed in the
jurisdictions referred to in clause (2) above that name
Revlon Guarantor, as debtor, together with copies of such
other financing statements;
(vii) certified copies of (A) a voting trust
agreement among Revlon Finance Corporation, Revlon
Guarantor, the Collateral Agent and The Bank of New York, as
voting trustee, in substantially the form of the voting
trust agreements delivered pursuant to Section
3.01(h)(xiii)(A) and (B) the charter of Revlon Guarantor,
the terms and conditions of which shall be substantially
similar to those contained in the charter of ▇▇▇▇▇▇▇
Guarantor;
(viii) a letter, in form and substance satisfactory
to the Administrative Agent, from Revlon Guarantor to KPMG
Peat Marwick, independent certified public accountants,
advising such accountants that the Administrative Agent and
the Lenders have relied upon the financial statements of
Revlon in determining whether to enter into the Loan
Documents and have been authorized to exercise all rights of
Revlon to require such accountants to disclose any and all
financial statements and any other information of any kind
that they may have with respect to Revlon and its
Subsidiaries and directing
34
such accountants to comply with any reasonable request of
the Administrative Agent or any Lender for such information;
and
(ix) favorable opinions of counsel to Mafco
reasonably satisfactory to the Lenders, in form and
substance reasonably satisfactory to the Lenders.
"Revlon Pledge Agreement" means the Pledge Agreement to be
made, at the Borrower's option, by Revlon Guarantor to the Collateral Agent in
substantially the form of Exhibit F-12, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"Revlon Tax Agreements" shall have the meaning specified
in the Revlon Guaranty.
"Revolving Credit Facilities" means the Tranche A Revolving
Credit Facility and the Tranche B Revolving Credit Facility.
"Second ▇▇▇▇▇▇▇ Pledge Agreement" means the Second Amended
and Restated Non-Recourse Guaranty and Pledge Agreement dated as of December
16, 1996 made by ▇▇▇▇▇▇▇ and The Bank of New York, in its capacity as voting
trustee, to the Collateral Agent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"Second Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Second Lenders" has the meaning specified in the
Preliminary Statements.
"Second Mafco Collateral Account" has the meaning specified
in the Mafco Security Agreement.
"Second New FN Holdings Debt" means the 10-5/8% Senior
Subordinated Notes due 2003 issued by FN Escrow in an aggregate principal
amount equal to $575,000,000, which will be assumed by FN Holdings upon the
merger of FN Escrow with and into FN Holdings.
"Second New FN Holdings Debt Document" means the Indenture
dated as of September 19, 1996 between FN Escrow and The Bank of New York, as
trustee, in connection with the Second New FN Holdings Debt and any other
agreement or instrument which governs the terms of the Second New FN Holdings
Debt.
35
"Security Agreements" means the Borrower Security Agreement,
the Borrower Parent Security Agreement and the Mafco Security Agreement.
"Single Employer Plan" of any Person means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, which is subject to Title IV
of ERISA, and (a) that is maintained for employees of such Person or any of
its ERISA Affiliates and no Person other than such Person and its ERISA
Affiliates or (b) in respect of which such Person or any of its ERISA
Affiliates could have liability under Section 4069 of ERISA in the event such
plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on
a particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature and (d) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent liabilities
at any time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Specified Holding Company Debt" means the 13% Subordinated
Debentures due March 1, 1999 issued by M&F pursuant to the Indenture dated as
of March 1, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇&▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York
and the 10% Senior Subordinated Debentures due 1999 issued by ▇▇▇▇▇▇▇ pursuant
to the Indenture dated as of June 4, 1990 between ▇▇▇▇▇▇▇ and First Trust of
California, National Association (as successor trustee to Security Pacific
National Trust Company (New York)).
"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of Credit.
"Stockholders Agreement" means the Stockholders Agreement
dated as of October 3, 1994, among FN Parent, FN Holdings and ▇▇▇▇▇▇ ▇. ▇▇▇▇,
as such agreement may be amended, modified or otherwise supplemented from time
to time with the consent of the Required Lenders.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, trust or estate of which (or in which) more than
50% of (a) the Voting Stock of such corporation, (b) the interest in the
capital or profits of such partnership or joint venture or
36
(c) the beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
of its other Subsidiaries or by one or more of such Person's other
Subsidiaries; provided, however, that for all purposes of the Loan Documents,
Toy Biz, Inc. shall not be a Subsidiary of any of the Loan Parties.
"Supermajority Lenders" means at any time Lenders owed or
holding at least 67% of the sum of (a) the aggregate principal amount of the
Advances outstanding at such time, (b) the aggregate Available Amount of all
Letters of Credit outstanding at such time, (c) the aggregate Unused Revolving
Tranche A Credit Commitment and (d) the aggregate Unused Tranche B Revolving
Credit Commitment (provided that, for purposes hereof, neither the Borrower
nor any of its Affiliates, if a Lender, shall be included in (x) the Lenders
holding such amount of the Advances or the Available Amount of all Letters of
Credit or having such amount of the Unused Tranche A Revolving Credit
Commitment or the Unused Tranche B Revolving Credit Commitment or (y)
determining the aggregate unpaid principal amount of the Advances or the total
Unused Tranche A Revolving Credit Commitment or the total Tranche B Revolving
Credit Commitment); provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the determination
of Supermajority Lenders at such time (i) the aggregate principal amount of
the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (ii) such Lender's Pro Rata Share of the aggregate
Available Amount of all Letters of Credit issued by such Lender at such time,
(iii) the aggregate Unused Tranche A Revolving Credit Commitment of such
Lender at such time and (iv) the aggregate Unused Tranche B Revolving Credit
Commitment of such Lender at such time. For purposes of this definition, the
aggregate principal amount of Letter of Credit Advances owing to the Issuing
Bank and the Available Amount of each Letter of Credit shall be considered to
be owed to the Tranche A Revolving Credit Lenders ratably in accordance with
their respective Tranche A Revolving Credit Commitments.
"Syndication Agent" has the meaning specified in the
recital of parties to this Agreement.
"Tax Certificate" has the meaning specified in Section
5.01(j)(xiii).
"Taxes" has the meaning specified in Section 2.13(a).
"Term Administrative Agent" has the meaning specified in
the Preliminary Statements.
"Term Agents" has the meaning specified in the Preliminary
Statements.
"Term Credit Agreement" has the meaning specified in the
Preliminary Statements.
37
"Term Credit Agreement Lenders" has the meaning specified
in the Preliminary Statement.
"Term Credit Agreement Termination Date" means the date on
which all "Payment Obligations" (as defined in the Term Credit Agreement)
shall have been "Fully Satisfied" (as defined in the Term Credit Agreement).
"Term Documentation Agent" has the meaning specified in
the Preliminary Statements.
"Term Facilities" means the "Term Facilities" as defined
in the Term Credit Agreement.
"Term Syndication Agent" has the meaning specified in the
Preliminary Statements.
"Third Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Third Lenders" has the meaning specified in the Preliminary
Statements.
"Trade Letter of Credit" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a supplier of
inventory to the Borrower or any of its Subsidiaries to effect payment for
such Inventory.
"Tranche A Revolving Credit Advance" has the meaning
specified in Section 2.01(a).
"Tranche A Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Tranche A Revolving Credit Advances of the same
Type made by the Tranche A Revolving Credit Lenders.
"Tranche A Revolving Credit Commitment" means, with respect
to any Tranche A Revolving Credit Lender at any time, the amount set forth
opposite such Lender's name on Schedule I hereto under the caption "Tranche A
Revolving Credit Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(c) as such
Lender's "Tranche A Revolving Credit Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
38
"Tranche A Revolving Credit Facility" means, at any time,
the aggregate amount of the Tranche A Revolving Credit Lenders' Tranche A
Revolving Credit Commitments at such time.
"Tranche A Revolving Credit Lender" means any Lender that
has a Tranche A Revolving Credit Commitment.
"Tranche A Revolving Credit Note" means a promissory note of
the Borrower payable to the order of any Tranche A Revolving Credit Lender, in
substantially the form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of the Borrower to such Tranche A Revolving Credit Lender
resulting from the Tranche A Revolving Credit Advances made by such Tranche A
Revolving Credit Lender.
"Tranche A Termination Date" means the earlier of (a) June
3, 1999 or (b) the date of termination in whole of the Letter of Credit
Commitments and the Tranche A Revolving Credit Commitments pursuant to Section
2.05 or 6.01.
"Tranche B Revolving Credit Advance" has the meaning
specified in Section 2.01(b).
"Tranche B Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Tranche B Revolving Credit Advances of the same
Type made by the Tranche B Revolving Credit Lenders.
"Tranche B Revolving Credit Commitment" means, with respect
to any Tranche B Revolving Credit Lender at any time, the amount set forth
opposite such Lender's name on Schedule I hereto under the caption "Tranche B
Revolving Credit Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(c) as such
Lender's "Tranche B Revolving Credit Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"Tranche B Revolving Credit Facility" means, at any time,
the aggregate amount of the Tranche B Revolving Credit Lenders' Tranche B
Revolving Credit Commitments at such time.
"Tranche B Revolving Credit Lender" means any Lender that
has a Tranche B Revolving Credit Commitment.
"Tranche B Revolving Credit Note" means a promissory note of
the Borrower payable to the order of any Tranche B Revolving Credit Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the aggregate
indebtedness of the Borrower to such Tranche
39
B Revolving Credit Lender resulting from the Tranche B Revolving Credit
Advances made by such Tranche B Revolving Credit Lender.
"Tranche B Termination Date" means the earliest of (a) June
30, 1997, (b) the date of the termination (and abandonment) of the News Corp.
Contract, (c) the date of the sale, monetization or other disposal by Mafco or
any of its Subsidiaries of all of the News Corp. Preferred ADRs or (d) the
date of termination in whole of the Tranche B Revolving Credit Commitments
pursuant to Section 2.05 or 6.01.
"Treasury Regulations" means the temporary and final
regulations promulgated under the Internal Revenue Code of 1986, as amended
from time to time.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the Eurodollar
Rate.
"Unfunded Pension Liabilities" with respect to any Plan
means the excess, if any, of its accumulated benefit obligation ("ABO"), as
determined in accordance with Statement of Financial Accounting Standards No.
87 or any successor thereto ("FAS 87") over the fair market value of its
assets (as of such date) (provided that in determining the ABO for this
purpose, the interest, mortality and other relevant actuarial assumptions used
to fund such Plan as of its most recent actuarial valuation) shall be used
instead of the interest, mortality and other relevant actuarial assumptions
that would otherwise be prescribed by FAS 87.
"Unused Tranche A Revolving Credit Commitment" means, with
respect to any Tranche A Revolving Credit Lender at any time, (a) such
Lender's Tranche A Revolving Credit Commitment at such time minus (b) the sum
of (i) the aggregate principal amount of all Tranche A Revolving Credit
Advances and Letter of Credit Advances made by such Lender (in its capacity as
a Lender) pursuant to Sections 2.02(a) and 2.03(c), respectively, and
outstanding at such time, plus (ii) such Lender's Pro Rata Share of (A) the
aggregate Available Amount of all Letters of Credit outstanding at such time
and (B) the aggregate principal amount of all Letter of Credit Advances made
by the Issuing Bank pursuant to Section 2.03(c) and outstanding at such time.
"Unused Tranche B Revolving Credit Commitment" means, with
respect to any Tranche B Revolving Credit Lender at any time, (a) such
Lender's Tranche B Revolving Credit Commitment at such time minus (b) the
aggregate principal amount of all Tranche B Revolving Credit Advances made by
such Lender (in its capacity as a Lender) pursuant to Section 2.02(b) and
outstanding at such time.
"Voting Stock" means capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of
40
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA.
"Withdrawal Liability" has the meaning specified in Part I
of Subtitle E of Part IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Tranche A Revolving
Credit Advances. Each Tranche A Revolving Credit Lender severally agrees, on
the terms and conditions hereinafter set forth, to make advances (each a
"Tranche A Revolving Credit Advance") to the Borrower from time to time on any
Business Day during the period from the date hereof until the Tranche A
Termination Date in an aggregate amount not to exceed at any time outstanding
such Lender's Tranche A Revolving Credit Commitment on such Business Day;
provided, however, that (x) on each day, after giving effect to any Tranche A
Revolving Credit Borrowing on such day, the sum of (i) the aggregate amount of
the Tranche A Revolving Credit Advances (other than, on and after the Tranche
B Termination Date, an aggregate principal amount of Tranche A Revolving
Credit Advances outstanding on such day equal to the lesser of (x) $50,000,000
and (y) an amount equal to the ▇▇▇▇▇ Utilization on such day) outstanding on
such day plus (ii) the aggregate amount of the Letter of Credit Advances
outstanding on such day plus (iii) the aggregate Available Amount of all
Letters of Credit outstanding on such day, shall not exceed an amount equal to
the aggregate Tranche A Revolving Credit Commitments of the Lenders on such
day less (iv) on and after the Tranche B Termination Date, $50,000,000 and (y)
on each day (on and after the Tranche B Termination Date) on or before the
date that the ▇▇▇▇▇ Utilization equals or exceeds $50,000,000, after giving
effect to any Tranche A Revolving Credit Borrowing on such day, the aggregate
Unused Tranche A Revolving Credit Commitments of all the Lenders shall not
41
be less than the excess, if any, of (1) $50,000,000 over (2) an amount equal
to the ▇▇▇▇▇ Utilization on such day. Each Tranche A Revolving Credit
Borrowing shall be in an aggregate amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (other than a Tranche A
Revolving Credit Borrowing the proceeds of which shall be used solely to repay
or prepay in full outstanding Letter of Credit Advances) and shall consist of
Tranche A Revolving Credit Advances made on the same day by the Tranche A
Revolving Credit Lenders ratably according to their Tranche A Revolving Credit
Commitments. Within the limits of each Tranche A Revolving Credit Lender's
Unused Tranche A Revolving Credit Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01(a), prepay pursuant to Section
2.06(a) and reborrow under this Section 2.01(a); provided, however, that to
the extent the Borrower makes an optional prepayment of the Tranche A
Revolving Credit Advances pursuant to Section 2.06(a) from funds on deposit in
the Mafco Collateral Account that constitute Net Cash Proceeds of an Asset
Sale that are required, pursuant to the provisions of Section 7(q) of the
Mafco Guaranty, to be applied to prepay or repay outstanding Debt of any A
Company, a portion of the Tranche A Revolving Credit Facility equal to the
amount of such prepayment shall only be available (x) to repay or prepay
outstanding Debt of any A Company or (y) to be redeposited in the Mafco
Collateral Account.
(b) The Tranche B Revolving Credit Advances. Each Tranche B
Revolving Credit Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances (each a "Tranche B Revolving Credit
Advance") to the Borrower from time to time on any Business Day during the
period from the date hereof until the Tranche B Termination Date in an
aggregate amount not to exceed at any time outstanding such Lender's Tranche B
Revolving Credit Commitment on such Business Day. Each Tranche B Revolving
Credit Borrowing shall be in an aggregate amount not less than $5,000,000 or
an integral multiple of $1,000,000 in excess thereof and shall consist of
Tranche B Revolving Credit Advances made on the same day by the Tranche B
Revolving Credit Lenders ratably according to their Tranche B Revolving Credit
Commitments. Within the limits of each Tranche B Revolving Credit Lender's
Unused Tranche B Revolving Credit Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01(b), prepay pursuant to Section
2.06(a) and reborrow under this Section 2.01(b).
(c) Letters of Credit. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue letters of credit (the "Letters
of Credit") for the account of the Borrower from time to time on any Business
Day during the period from the date hereof until 60 days before the Tranche A
Termination Date (i) in an aggregate Available Amount for all Letters of
Credit not to exceed at any time the Issuing Bank's Letter of Credit
Commitment at such time and (ii) in an Available Amount for each such Letter
of Credit not to exceed the least of (x) the Letter of Credit Facility at such
time, (y) the Unused Tranche A Revolving Credit Commitments of the Lenders at
such time and (z) an amount equal to the aggregate Tranche A Revolving Credit
Commitments of the
42
Lenders at such time, less the Tranche A Revolving Credit Advances (other
than, on and after the Tranche B Termination Date, an aggregate principal
amount of Tranche A Revolving Credit Advances outstanding at such time equal
to the lesser of (1) $50,000,000 and (2) an amount equal to the ▇▇▇▇▇
Utilization on such day) outstanding at such time, less the aggregate
Available Amount of all Letters of Credit outstanding at such time, less, on
and after the Tranche B Termination Date, $50,000,000. No Letter of Credit
shall have an expiration date (including all rights of the Borrower or the
beneficiary to require renewal) later than the earlier of 60 days before the
Tranche A Termination Date and (A) in the case of a Standby Letter of Credit,
one year after the date of issuance thereof, but may by its terms be
automatically renewable annually unless the Issuing Bank has notified the
Borrower (with a copy to the Administrative Agent) on or after the 60th
Business Day prior to the first anniversary (or any subsequent anniversary) of
the date of issuance thereof but in any event at least 30 Business Days prior
to the date of automatic renewal of its election not to renew such Standby
Letter of Credit (a "Notice of Termination") and (B) in the case of a Trade
Letter of Credit, 60 days after the date of issuance thereof; provided,
however, that the terms of each Standby Letter of Credit that is automatically
renewable annually shall (x) require the Issuing Bank to give the beneficiary
named in such Standby Letter of Credit notice of any Notice of Termination,
(y) permit such beneficiary, upon receipt of such notice, to draw under such
Standby Letter of Credit prior to the date such Standby Letter of Credit
otherwise would have been automatically renewed and (z) not permit the
expiration date (after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date later than 60 days before the
Termination Date. If a Notice of Termination is given by the Issuing Bank
pursuant to the immediately preceding sentence, such Standby Letter of Credit
shall expire on the date on which it otherwise would have been automatically
renewed. Within the limits of the Letter of Credit Facility, and subject to
the limits referred to above, the Borrower may request the issuance of Letters
of Credit under this Section 2.01(c), repay any Letter of Credit Advances
resulting from drawings thereunder pursuant to Section 2.03(c) and request the
issuance of additional Letters of Credit under this Section 2.01(c).
(d) Clean-Down. Notwithstanding the provisions of Sections
2.01(a) and 2.01(c), no Tranche A Revolving Credit Borrowings may be made
under Section 2.01(a) during any Clean-Down Period, other than, on or before
the date on which the ▇▇▇▇▇ Utilization equals or exceeds $50,000,000, Tranche
A Revolving Credit Borrowings in respect of which the Borrower certifies that
the proceeds of such Tranche A Revolving Credit Borrowing shall be used solely
to purchase ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇ or to make the payment in cash of the
exchange price to a holder of ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇ in respect of such
holder's ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇.
SECTION 2.02. Making the Advances. (a) Except as
otherwise provided in Section 2.16, each Borrowing shall be made on notice
given not later than 11:00 A.M. (New York City time) on the first Business Day
prior to the date of a proposed Borrowing
43
consisting of Base Rate Advances or the third Business Day prior to the date
of a proposed Borrowing consisting of Eurodollar Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telecopier, telex or cable. Each such notice of a Borrowing
(a "Notice of Borrowing") shall be by telecopier, telex or cable, and, with
respect to a Notice of Borrowing by telex or cable, confirmed immediately
thereafter in writing, in substantially the form of Exhibit C hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Facility
under which such Borrowing is to be made, (iii) Type of Advances comprising
such Borrowing, (iv) aggregate amount of such Borrowing and (v) Interest
Period for each Eurodollar Rate Advance included in such Borrowing. In the
case of a proposed Borrowing comprised of Eurodollar Rate Advances, the
Administrative Agent shall promptly notify the Borrower and each Lender of the
applicable interest rate under Section 2.07(a)(ii). Each Appropriate Lender
shall, before 12:00 noon (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available by crediting the
Borrower's Account.
(b) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the related Notice
of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Appropriate Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have received
notice from an Appropriate Lender prior to the date of any Borrowing under a
Facility under which such Lender has a Commitment that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of
such Borrowing, the Administrative Agent may assume, or at its option request
confirmation from such Lender, that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative
Agent may, in reliance upon such assumption or confirmation (as the case may
be), make available to the Borrower on such date a corresponding amount. If
and to the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such
44
amount is made available to the Borrower until the date such amount is repaid
to the Administrative Agent, at (i) in the case of the Borrower, the interest
rate applicable at such time under Section 2.07 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the cost (expressed as a rate
per annum) to the Administrative Agent of funding such Lender's ratable
portion; provided, however, that, upon the request of such Lender, the
Administrative Agent shall provide such Lender with a certificate as to the
calculation of such amount. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any
Borrowing.
(e) The Borrower may not request a Borrowing comprised of
Eurodollar Rate Advances or, pursuant to Section 2.11, Convert Base Rate
Advances into Eurodollar Rate Advances or select a new Interest Period for
existing Eurodollar Rate Advances if, after the making or Conversion of such
Advances or the selection of such Interest Period, the number of outstanding
Borrowings comprised of Eurodollar Rate Advances having different Interest
Periods (whether of different duration or commencing on different dates) would
exceed 6.
SECTION 2.03. Issuance of and Drawings and Reimbursement
Under Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall
be issued upon notice, given not later than 11:00 A.M. (New York City time) on
the seventh Business Day prior to the date of the proposed issuance of such
Letter of Credit, by the Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Tranche A Revolving Credit Lender prompt notice
thereof by telex or telecopier. Each such notice of issuance of a Letter of
Credit (a "Notice of Issuance") shall be by telephone, confirmed immediately
in writing, or telex or telecopier, specifying therein the requested (A) date
of such issuance (which shall be a Business Day), (B) Available Amount of such
Letter of Credit, (C) expiration date of such Letter of Credit, (D) name and
address of the beneficiary of such Letter of Credit and (E) form of such
Letter of Credit, and shall be accompanied by such application and agreement
for letter of credit as such Issuing Bank may specify to the Borrower for use
in connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If the requested form of such Letter of Credit is acceptable to
the Issuing Bank in its sole discretion, the Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower at its office referred to in
Section 8.02 or as otherwise agreed with the Borrower in connection with such
issuance. In
45
the event and to the extent that the provisions of any Letter of Credit
Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish
(A) to the Administrative Agent and the Borrower on the first Business Day of
each week during which one or more Letters of Credit have been issued or drawn
upon, a written report summarizing issuance and expiration dates of Letters of
Credit issued during the previous week and drawings during such week under all
Letters of Credit issued, (B) to each Tranche A Revolving Credit Lender and
the Borrower on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued during
the preceding month and drawings during such month under all Letters of Credit
and (C) to the Administrative Agent, each Tranche A Revolving Credit Lender
and the Borrower on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available Amount during the
preceding calendar quarter of all Letters of Credit.
(c) Drawing and Reimbursement. The payment by the Issuing
Bank of a draft drawn under any Letter of Credit shall constitute for all
purposes of this Agreement the making by the Issuing Bank of a Letter of
Credit Advance, in the amount of such draft, which shall be a Base Rate
Advance until the third Business Day after the date which the Borrower shall
have delivered a L/C Certificate in respect of such Letter of Credit Advance
which specified that such Advance shall be a Eurodollar Advance. Upon written
demand by the Issuing Bank, with a copy of such demand to the Administrative
Agent, each Tranche A Revolving Credit Lender shall purchase from the Issuing
Bank, and the Issuing Bank shall sell and assign to each such Tranche A
Revolving Credit Lender, such Lender's Pro Rata Share of such outstanding
Letter of Credit Advance as of the date of such purchase, by making available
for the account of its Applicable Lending Office to the Administrative Agent
for the account of the Issuing Bank, by deposit to the Administrative Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Letter of Credit Advance to be purchased by such
Lender. Promptly after receipt thereof, the Administrative Agent shall
transfer such funds to the Issuing Bank. The Borrower hereby agrees to each
such sale and assignment. Each Tranche A Revolving Credit Lender irrevocably
and unconditionally agrees to purchase its Pro Rata Share of an outstanding
Letter of Credit Advance on (i) the Business Day on which demand therefor is
made by the Issuing Bank, provided notice of such demand is given not later
than 11:00 A.M. (New York City time) on such Business Day or (ii) the first
Business Day next succeeding such demand if notice of such demand is given
after such time. Upon any such assignment by the Issuing Bank to any other
Lender of a portion of a Letter of Credit Advance, the Issuing Bank represents
and warrants to such other Lender that the Issuing Bank is the legal and
beneficial owner of such interest being assigned by it, free and clear of any
liens, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan
Documents or any Loan Party. If and to the extent that any Tranche A Revolving
Credit Lender shall not have so made the amount of
46
such Letter of Credit Advance available to the Administrative Agent, such
Tranche A Revolving Credit Lender agrees to pay to the Administrative Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Issuing Bank until the date such amount is paid
to the Administrative Agent, at the Federal Funds Rate for its account or the
account of the Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of the Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of
Credit Advance made by the Issuing Bank shall be reduced by such amount on
such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure
of any Tranche A Revolving Credit Lender to make the Letter of Credit Advance
to be made by it on the date specified in Section 2.03(c) shall not relieve
any other Tranche A Revolving Credit Lender of its obligation hereunder to
make its Letter of Credit Advance on such date, but no Tranche A Revolving
Credit Lender shall be responsible for the failure of any other Tranche A
Revolving Credit Lender to make the Letter of Credit Advance to be made by
such other Tranche A Revolving Credit Lender on such date.
SECTION 2.04. Repayment. (a) Tranche A Revolving Credit
Advances. The Borrower shall repay to the Administrative Agent for the ratable
account of the Tranche A Revolving Credit Lenders on the Tranche A Termination
Date the aggregate principal amount of the Tranche A Revolving Credit Advances
then outstanding.
(b) Tranche B Revolving Credit Advances. The Borrower shall
repay to the Administrative Agent for the ratable account of the Tranche B
Revolving Credit Lenders on the Tranche B Termination Date the aggregate
principal amount of the Tranche B Revolving Credit Advances then outstanding.
(c) Letter of Credit Advances. (i) The Borrower shall repay
to the Administrative Agent for the account of the Issuing Bank and each other
Tranche A Revolving Credit Lender that has made a Letter of Credit Advance on
the Tranche A Termination Date the outstanding principal amount of each Letter
of Credit Advance made by each of them; provided, however, that if the
Borrower fails to deliver a L/C Certificate in respect of such Letter of
Credit Advance on the Business Day following the date on which the Issuing
Bank paid a draft drawn under a Letter of Credit which resulted in such Letter
of Credit Advance, the Borrower shall repay such Letter of Credit Advance on
demand.
(ii) The Obligations of the Borrower under this Agreement,
any Letter of Credit Agreement and any other agreement or instrument relating
to any Letter of Credit shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms
47
of this Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations of the
Borrower in respect of any L/C Related Document or any other
amendment or waiver of or any consent to departure from all or any of
the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary
or any transferee of a Letter of Credit (or any Persons for whom any
such beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any
Collateral or other collateral, or any release or amendment or waiver
of or consent to departure from any Guaranty or any other guarantee,
for all or any of the Obligations of the Borrower in respect of the
L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments.
(a) Optional. The Borrower shall have the right, upon at least three Business
Days' prior notice to the Administrative Agent, to terminate in whole or
reduce ratably in part the unused portions of the Letter of Credit Facility,
the Unused Tranche A Revolving Credit Commitments and the Unused Tranche B
Revolving Credit Commitments; provided that each
48
partial reduction of a Facility (i) shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii)
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments with respect to such Facility.
(b) Mandatory. (i) On any date (A) on which a cash equity
contribution is deposited in the Borrower Collateral Account as a result of a
loan made by First Gibraltar to the Borrower Parent pursuant to the terms of
the First Gibraltar Loan Agreement or on which a deposit of amounts paid under
or in connection with any Related Documents is made to the Mafco Collateral
Account or on which a deposit of amounts constituting Net Cash Proceeds from
an Asset Sale is made to the Mafco Collateral Account and (B) either (I) a
Default has occurred and is continuing, (II) the Borrower fails to deliver a
Look-Forward Certificate or a Deposit Certificate with respect to such deposit
in accordance with the terms of section 5.01(k) or (III) the Marvel IV
Required Lenders determine, in their reasonable discretion, within 15 Business
Days following the date of the receipt of the Look-Forward Certificate or
within 2 Business Days following the date of the receipt of Deposit
Certificate, as the case may be, referred to in clause (B)(II), that the pro
forma amounts available to be loaned by First Gibraltar to Borrower Parent,
together with amounts received by Mafco pursuant to or in connection with any
Related Document, will be less than $8 million in any calendar quarter or will
not be sufficient to pay interest on the Advances then outstanding, the
Revolving Credit Facilities shall be automatically and permanently reduced by
an amount equal to the excess of (x) the amount of such cash equity
contribution or the amount on deposit in the Mafco Collateral Account, as the
case may be, plus any interest on Collateral Investments made with such
contribution or deposit over (y) the sum of the amount of interest and fees
then due and payable in respect of the Facilities plus the amount of expenses
of the Administrative Agent (including the reasonable fees and expenses of
counsel to the Administrative Agent) then due and payable. Each such reduction
of the Facilities shall be applied ratably first to the Tranche A Revolving
Credit Facility and second to the Tranche B Revolving Credit Facility. Each
such reduction of a Facility shall be made ratably among the Appropriate
Lenders in accordance with their Commitments with respect to such Facility.
Any such amounts remaining after the foregoing application shall be applied as
set forth in Section 2.05(b)(i) of the Term Credit Agreement.
(ii) The Revolving Credit Facilities shall be
automatically and permanently reduced:
(A) on the date of receipt by any A Company of the Net Cash
Proceeds of issuances, sales or liquidations of any capital stock
(including any securities convertible into or exchangeable for
capital stock or any warrants, rights or options to acquire capital
stock) of any A Company (other than (x) any Net Cash Proceeds in
respect of any Asset Sale and (y) the preferred stock to be issued by
FN Holdings in exchange for the preferred stock of FN Escrow upon
consummation of the merger of
49
FN Escrow with and into FN Holdings which preferred stock will be
redeemed in full concurrently with or immediately after the
consummation of such merger),
(B) on the date of receipt by any A Company of any
dividends, other distributions or any loans or advances made in
respect of the capital stock of any other A Company (other than FN
Holdings and FN Parent) (provided that this clause (B) shall not
apply to the receipt by any A Company of any dividends, other
distributions or any loans or advances made in respect of all or any
portion of the proceeds received by Mafco or any of its Subsidiaries
from any Asset Sale or any sale, lease, transfer or other disposition
specified in clauses (i) through (v) of the definition of "Asset
Sale",
(C) on the date of receipt by any A Company of the proceeds
of distributions, dividends or any loans or advances made on account
of or as a result of the issuance, sale or liquidation of any capital
stock (including any securities convertible into or exchangeable for
capital stock or any warrants, rights or options to acquire capital
stock but excluding any Asset Sale) of, or the sale, issuance or
incurrence of any Debt by, any Designated Operating Company, and
(D) on the date of receipt by any A Company of the Net Cash
Proceeds from the sale, issuance or incurrence by any A Company of
any Debt (other than any sale, issuance or incurrence by Revlon
Holdings Inc. of any Debt to any of its Subsidiaries),
by an amount equal to the excess of (x) the amount so received (except, in
each case, to the extent (1) required pursuant to the terms of any agreement
or instruments relating to Debt existing on the date hereof or otherwise
approved by the Marvel IV Required Lenders of any A Company or Designated
Operating Company to prepay or redeem or purchase such Debt or (2) prohibited
to be so applied by the terms of any agreement or instrument relating to Debt
existing on the date hereof or otherwise approved by the Marvel IV Required
Lenders of any A Company or Designated Operating Company) over (y) the sum of
the amount of interest and fees then due and payable in respect of the
Facilities plus the amount of expenses of the Administrative Agent (including
the reasonable fees and expenses of counsel to the Administrative Agent) then
due and payable. Each such reduction of the Revolving Credit Facilities shall
be applied ratably first to the Tranche A Revolving Credit Facility and second
to the Tranche B Revolving Credit Facility. Each such reduction of a Revolving
Credit Facility shall be made ratably among the Appropriate Lenders in
accordance with their Commitments with respect to such Revolving Credit
Facility. Any such amounts remaining after the foregoing application shall be
applied as set forth in Section 2.05(b)(ii) of the Term Credit Agreement.
50
(iii) On the date of receipt by Mafco or any of its
Subsidiaries (other than the Bank and its Subsidiaries) of the Net Cash
Proceeds from the sale, transfer or other disposition of (x) all or any
portion of the capital stock of the Bank (other than any issuance by the Bank
or any Subsidiary of the Bank of capital stock) or (y) any asset of the Bank,
the Revolving Credit Facilities shall be automatically and permanently reduced
by an amount equal to the excess of (A) such Net Cash Proceeds (other than the
portion of such Net Cash Proceeds required to be paid to the holders of the
Class B common stock of FN Holdings and the holders of the FN Holdings
Preferred Stock) over (B) the sum of the amount of interest and fees then due
and payable in respect of the Facilities plus the amount of expenses of the
Administrative Agent (including the reasonable fees and expenses of counsel to
the Administrative Agent) then due and payable. Each such reduction of the
Revolving Credit Facilities shall be applied ratably first to the Tranche A
Revolving Credit Facility and second to the Tranche B Revolving Credit
Facility. Each such reduction of the Revolving Credit Facilities shall be made
ratably among the Appropriate Lenders in accordance with their Commitments
with respect to such Revolving Credit Facility. Any Net Cash Proceeds
remaining after the foregoing application shall be applied as set forth in
Section 2.05(b)(iii) of the Term Credit Agreement.
(iv) On the date of receipt by Mafco or any of its
Subsidiaries, on or prior to the later of the Tranche B Termination Date and
the Term Credit Agreement Termination Date, of the Net Cash Proceeds from any
Asset Sale (other than the sale, disposal or other monetization of the News
Corp. Preferred ADRs or the New Marvel Shares), the excess of (A) such Net
Cash Proceeds over (B) the sum of the amount of interest and fees then due and
payable in respect of the Facilities plus the amount of expenses of the
Administrative Agent (including the reasonable fees and expenses of counsel to
the Administrative Agent) then due and payable shall be applied ratably first
to the automatic and permanent reduction in full of the Tranche B Revolving
Credit Facility and second to the prepayment of the Tranche A Revolving Credit
Facility as set forth in Section 2.06(b)(iii). Each such reduction or
prepayment of a Revolving Credit Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments with respect to such
Revolving Credit Facility. Any Net Cash Proceeds remaining after the foregoing
application shall be applied as set forth in Section 2.05(b)(iv) of the Term
Credit Agreement.
(v) On the date of receipt by Mafco or any of its
Subsidiaries, on or prior to the later of the Tranche B Termination Date and
the Term Credit Agreement Termination Date, of the Net Cash Proceeds from the
sale, disposal or other monetization of the News Corp. Preferred ADRs or the
New Marvel Shares, the excess of (A) such Net Cash Proceeds over (B) the sum
of (1) the amount of interest and fees then due and payable in respect of the
Facilities plus (2) the amount of expenses of the Administrative Agent
(including the reasonable fees and expenses of counsel to the Administrative
Agent) then due and payable plus (3) the aggregate amount paid (including the
aggregate amount of interest, fees and expenses then due and payable in
respect of the Term Facilities) from such Net Cash
51
Proceeds pursuant to the terms of Section 2.05(b)(v) of the Term Credit
Agreement shall be applied first to the permanent reduction in full of the
Tranche B Revolving Credit Facility and second to the prepayment of the
Tranche A Revolving Credit Facility as set forth in Section 2.06(b)(iv). Each
such reduction or prepayment of a Revolving Credit Facility shall be made
ratably among the Appropriate Lenders in accordance with their Commitments
with respect to such Revolving Credit Facility.
(vi) On and after the date (occurring after the later of the
Tranche B Termination Date and the Term Credit Agreement Termination Date), on
which Mafco and its Subsidiaries have received Net Cash Proceeds in an amount
equal to the Asset Sale Threshold from Asset Sales, upon any Asset Sale in
respect of which Mafco and its Subsidiaries have received Net Cash Proceeds
(which, together with the aggregate amount of Net Cash Proceeds from and after
the Effective Date from Asset Sales, exceeds the Asset Sale Threshold), the
Tranche A Revolving Credit Facility shall be automatically and permanently
reduced by an amount equal to the excess of (x) 50% of that portion of the Net
Cash Proceeds in excess of the Asset Sale Threshold (after taking into account
the aggregate amount of Net Cash Proceeds from and after the Effective Date
from Asset Sales) from such Asset Sale over (y) the sum of the amount of
interest and fees then due and payable in respect of the Facilities plus the
amount of expenses of the Administrative Agent (including the reasonable fees
and expenses of counsel to the Administrative Agent) then due and payable.
Each such reduction of the Tranche A Revolving Credit Facility shall be made
ratably among the Appropriate Lenders in accordance with their Commitments
with respect to the Tranche A Revolving Credit Facility.
(vii) On each date that an Event of Default set forth in
Section 6.01(a) shall have occurred and be continuing, the Revolving Credit
Facilities shall be automatically and permanently reduced by an amount equal
to the excess of (x) the amount on deposit in the Second Mafco Collateral
Account over (y) the sum of the amount of interest and fees then due and
payable in respect of the Facilities plus the amount of expenses of the
Administrative Agent (including the reasonable fees and expenses of counsel to
the Administrative Agent) then due and payable. Each such reduction of the
Revolving Credit Facilities shall be applied ratably first to the Tranche A
Revolving Credit Facility and second to the Tranche B Revolving Credit
Facility. Each such reduction of the Revolving Credit Facilities shall be made
ratably among the Appropriate Lenders in accordance with their Commitments
with respect to such Revolving Credit Facility. Any amounts remaining on
deposit in the Second Mafco Collateral Account after the foregoing application
shall be applied as set forth in Section 2.05(b)(vi) of the Term Credit
Agreement. If an Event of Default set forth in Section 6.01(a) shall occur and
be continuing at the same time as an "Event of Default" set forth in Section
6.01(a) of the Term Credit Agreement shall occur and be continuing, such
amount (less the sum of (1) the amount of interest and fees then due and
payable in respect of the Term Facilities plus (2) the amount of expenses of
the "Administrative Agent" under the Term Credit Agreement (including the
reasonable fees and expenses of counsel to such
52
"Administrative Agent") then due and payable) shall be applied pro rata to the
Revolving Credit Facilities and to the Debt under the Term Credit Agreement
and such pro rata amount shall be applied to the Revolving Credit Facilities
as set forth in this Section 2.05(b)(vii).
(viii) On each date that an "Event of Default" set forth in
Section 6.01(a) of the Term Credit Agreement shall occur and be continuing,
the Revolving Credit Facilities shall be automatically and permanently reduced
by an amount equal to the excess of (x) the amount on deposit in the Second
Mafco Collateral Account over (y) the sum of (1) the amount of interest and
fees then due and payable in respect of the Facilities plus (2) the amount of
expenses of the Administrative Agent (including the reasonable fees and
expenses of counsel to the Administrative Agent) then due and payable plus (3)
the aggregate amount paid (including the aggregate amount of interest, fees
and expenses then due and payable in respect of the Term Facilities) from such
amount on deposit pursuant to the terms of Section 2.05(b)(vii) of the Term
Credit Agreement. Each such reduction of the Revolving Credit Facilities shall
be applied ratably first to the Tranche A Revolving Credit Facility and second
to the Tranche B Revolving Credit Facility. Each such reduction of the
Revolving Credit Facilities shall be made ratably among the Appropriate
Lenders in accordance with their Commitments with respect to such Revolving
Credit Facility. If an "Event of Default" set forth in Section 6.01(a) of the
Term Credit Agreement shall occur and be continuing at the same time as an
Event of Default set forth in Section 6.01(a) shall occur and be continuing,
such amount shall be applied pro rata to the Revolving Credit Facilities and
to the Debt under the Term Credit Agreement and such pro rata amount shall be
applied to the Revolving Credit Facilities as set forth in this Section
2.05(b)(viii).
(ix) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Tranche A
Revolving Credit Facility by the amount, if any, by which the Letter of Credit
Facility exceeds the Tranche A Revolving Credit Facility after giving effect
to such reduction of the Tranche A Revolving Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may,
upon at least one Business Day's notice to the Administrative Agent, in the
case of Base Rate Advances, and three Business Days' notice to the
Administrative Agent, in the case of Eurodollar Rate Advances, stating the
proposed date, and the aggregate principal amount of the prepayment, and if
such notice is given, the Borrower shall, prepay the outstanding principal
amounts of the Advances comprising part of the same Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount so prepaid; provided, however, that, with respect to
any prepayment made in connection with the provisions of Section 7(o) of the
Mafco Guaranty, no such notice shall be required; provided further that (x)
each partial prepayment (other than a prepayment made in connection with the
provisions of Section 7(o) of the Mafco Guaranty) shall be in an aggregate
principal amount not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof (or, if the aggregate principal amount of all
Advances that constitute part of
53
such Borrowing is less, such aggregate principal amount) and (y) in the event
any such prepayment of Eurodollar Rate Advances is not made on the last day of
an Interest Period, the Borrower shall be obligated to reimburse the Lenders
in respect thereof pursuant to Section 8.04(b).
(b) Mandatory. (i) The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Tranche A Revolving Credit
Advances comprising part of the same Tranche A Revolving Credit Borrowing and
the Letter of Credit Advances equal to the amount by which (A) the sum of
aggregate principal amount of (x) the Tranche A Revolving Credit Advances and
(y) the Letter of Credit Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding exceeds (B) the
Tranche A Revolving Credit Facility on such Business Day.
(ii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Tranche B Revolving Credit Advances
comprising part of the same Tranche B Revolving Credit Borrowing equal to the
amount by which the aggregate principal amount of the Tranche B Revolving
Credit Advances then outstanding exceeds the Tranche B Revolving Credit
Facility on such Business Day.
(iii) The Borrower shall, on the date of receipt by Mafco or
any of its Subsidiaries, on or prior to the later of the Tranche B Termination
Date and the Term Credit Agreement Termination Date, of the Net Cash Proceeds
from any Asset Sale (other than the sale, disposal or other monetization of
the News Corp. Preferred ADRs or the New Marvel Shares), prepay an aggregate
principal amount of the Tranche A Revolving Credit Advances comprising part of
the same Borrowings in an amount equal to the excess of (A) such Net Cash
Proceeds over (B) the sum of (1) the amount of interest and fees then due and
payable in respect of the Facilities plus (2) the amount of expenses of the
Administrative Agent (including the reasonable fees and expenses of counsel to
the Administrative Agent) then due and payable plus (3) the aggregate
principal amount of Tranche B Revolving Credit Advances prepaid pursuant to
Section 2.06(b)(ii) in connection with the permanent reduction of the Tranche
B Revolving Credit Facility pursuant to Section 2.05(b)(iv) as a result of
such Asset Sale. Immediately after giving effect to the foregoing prepayment,
the lesser of (x) the Unused Tranche A Revolving Credit Commitments and (y)
$50,000,000 shall be available solely to purchase ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇ or
to make the payment in cash of the exchange price to a holder of ▇▇▇▇▇▇▇
Worldwide ▇▇▇▇▇ in respect of such holder's ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇. Any Net
Cash Proceeds remaining after the foregoing application shall be applied as
set forth in Section 2.05(b)(iv) of the Term Credit Agreement.
(iv) The Borrower shall, on the date of receipt by Mafco or
any of its Subsidiaries, on or prior to the later of the Tranche B Termination
Date and the Term Credit Agreement Termination Date, of the Net Cash Proceeds
from the sale, disposal or other monetization of the News Corp. Preferred ADRs
or the New Marvel Shares, prepay an
54
aggregate principal amount of the Tranche A Revolving Credit Advances
comprising part of the same Borrowings in an amount equal to the lesser of (A)
the excess of (x) such Net Cash Proceeds over (y) the sum of (1) the amount of
interest and fees then due and payable in respect of the Facilities plus (2)
the amount of expenses of the Administrative Agent (including the reasonable
fees and expenses of counsel to the Administrative Agent) then due and payable
plus (3) the aggregate principal amount of Tranche B Revolving Credit Advances
prepaid pursuant to Section 2.06(b)(ii) in connection with the permanent
reduction of the Tranche B Revolving Credit Facility pursuant to Section
2.05(b)(v) as a result of such sale, disposal or other monetization plus (4)
the aggregate amount paid (including the aggregate amount of interest, fees
and expenses then due and payable in respect of the Term Facilities) from such
Net Cash Proceeds pursuant to the terms of Section 2.05(b)(iv) of the Term
Credit Agreement and (B) an amount up to $50,000,000 such that, after giving
effect to such prepayment, the Unused Tranche A Revolving Credit Commitments
shall equal $50,000,000. Immediately after giving effect to the foregoing
prepayment, $50,000,000 of the Tranche A Revolving Credit Commitments shall be
available solely to purchase ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇ or to make the payment in
cash of the exchange price to a holder of ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇ in respect
of such holder's ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇.
(v) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in such Collateral Account
to equal the amount by which the aggregate Available Amount of all Letters of
Credit then outstanding exceeds the Letter of Credit Facility on such Business
Day.
(vi) The Borrower shall, on the first day of each Mandatory
Clean-Down Period, prepay in full the Tranche A Revolving Credit Advances
(other than an aggregate principal amount of Tranche A Revolving Credit
Advances equal to the lesser of (x) $50,000,000 and (y) an amount equal to the
▇▇▇▇▇ Utilization on any day during such Mandatory Clean-Down Period) and the
Letter of Credit Advances.
(vii) Prepayments of the Tranche A Revolving Credit Facility
made pursuant to clause (i) or (vi) above shall be first, applied to prepay
Letter of Credit Advances then outstanding until such Advances are paid in
full and second, applied to prepay Tranche A Revolving Credit Advances then
outstanding comprising part of the same Borrowings.
(viii) If, as a result of the making of any prepayment
required to be made pursuant to this Section 2.06, the Borrower would incur
costs pursuant to Section 8.04(b), the Borrower may deposit the amount of such
prepayment with the Administrative Agent, for the benefit of the Lenders, in a
cash collateral account, until the end of the applicable Interest Period at
which time such payment shall be made. The Borrower hereby grants to the
Administrative Agent, for the benefit of the Lenders, a security interest in
all amounts in which the Borrower has any right, title or interest which are
from time to time on deposit in
55
such cash collateral account and expressly waives all rights (which rights the
Borrower hereby acknowledges and agrees are vested exclusively in the
Administrative Agent) to exercise dominion or control over any such amounts.
SECTION 2.07. Interest. (a) Ordinary Interest. The
Borrower shall pay interest on the unpaid principal amount of each Advance
owing to each Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance
is a Base Rate Advance, a rate per annum equal at all times to the
sum of the Base Rate in effect from time to time plus the Applicable
Margin in effect from time to time, payable in arrears quarterly on
the first Business Day of each March, June, September and December
during such periods, commencing March 3, 1997, and on the date such
Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Advance, a rate per annum equal at all times
during each Interest Period for such Advance to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin
in effect from time to time, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period.
(b) Default Interest. The Borrower shall pay on demand
interest on the unpaid principal amount of each Advance that is not paid when
due and on the unpaid amount of all interest, fees and other amounts then due
and payable hereunder that is not paid when due from the due date thereof to
the date paid, at a rate per annum equal at such time to (i) in the case of
any amount of principal, 2% per annum above the rate of interest per annum
required to be paid on such Advance immediately prior to the date on which
such amount became due and payable and (ii) in the case of all other amounts,
2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to Section 2.07(a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) The
Administrative Agent shall give prompt notice to the Borrower and each Lender
of the applicable interest rate determined by the Administrative Agent for
purposes of Section 2.07(a)(i) or (ii), and the applicable rate, if any,
furnished by Citibank for the purpose of determining the applicable interest
rate under Section 2.07(a)(i) or (ii).
(b) If Citibank cannot furnish timely information to
the Administrative Agent for determining the Eurodollar Rate, the
Administrative Agent shall forthwith notify
56
the Borrower and each Lender that the interest rate cannot be determined for
such Eurodollar Rate Advances, whereupon (i) each such Eurodollar Rate Advance
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall
be suspended until the Administrative Agent shall notify the Borrower that
Citibank has determined that the circumstances causing such suspension no
longer exist.
(c) If the Required Lenders notify the Administrative Agent
that the Eurodollar Rate for any Interest Period for such Eurodollar Rate
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their pro rata shares of such Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Lenders, whereupon (i) each such Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of
the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower
that such Required Lenders have determined that the circumstances causing such
suspension no longer exist.
(d) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Administrative Agent will forthwith notify the Borrower and the
Appropriate Lenders and the Interest Period for such Eurodollar Rate Advances
will be one month.
SECTION 2.09. Fees. (a) Commitment Fee. The Borrower agrees
to pay to the Administrative Agent for the account of the Tranche A Revolving
Credit Lenders a commitment fee on the average daily Unused Tranche A
Revolving Credit Commitment of such Lender, from the date hereof, in the case
of each Financial Institution, and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender, in the case of
each other Lender, until the Tranche A Termination Date at a rate equal to
1-1/4% per annum, payable in arrears on the date of the initial Tranche A
Revolving Credit Borrowing, thereafter quarterly on the first Business Day of
each March, June, September and December commencing March 3, 1997 and on the
Tranche A Termination Date. The Borrower further agrees to pay to the
Administrative Agent for the account of the Tranche B Revolving Credit Lenders
a commitment fee on the average daily Unused Tranche B Revolving Credit
Commitment of such Lender, from the date hereof, in the case of each Financial
Institution, and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender, in the case of each other
Lender, until the Tranche B Termination Date at a rate equal to 1-1/4% per
annum, payable in arrears on the date of the initial Tranche B Revolving
Credit Borrowing, thereafter quarterly on the first Business Day of each
March, June, September and December commencing March 3, 1997 and on the
Tranche B Termination Date.
57
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay
to the Administrative Agent for the account of each Tranche A Revolving Credit
Lender a commission, payable in arrears quarterly on the first Business Day of
each March, June, September and December, commencing March 3, 1997, and on the
earliest to occur of the full drawing, expiration, termination or cancellation
of any such Letter of Credit and on the Tranche A Termination Date, on such
Lender's Pro Rata Share of the average daily aggregate Available Amount during
such quarter of (A) all Standby Letters of Credit outstanding from time to
time at the rate of 4-1/2% per annum and (B) all Trade Letters of Credit then
outstanding at the rate of 4-1/2% per annum.
(ii) The Borrower shall pay to each Issuing Bank, for its
own account, such commissions, issuance fees, fronting fees, transfer fees and
other fees and charges in connection with the issuance or administration of
each Letter of Credit as the Borrower and such Issuing Bank shall agree.
(c) Other Fees. The Borrower shall pay to the Administrative
Agent for its own account such fees as are set forth in the fee letter dated
November __, 1996 between Mafco and Citibank, as the same may be amended or
otherwise modified from time to time.
SECTION 2.10. Increased Costs; Illegality. (a) Except as to
taxes, levies, imposts, deductions, charges, withholdings or liabilities with
respect thereto (it being understood that the Borrower shall not have any
liability for any taxes, levies, imposts, deductions, charges, withholdings or
liabilities with respect thereto, except as provided in Section 2.13), if, due
to either (i) the introduction of or any change (other than any change by way
of imposition or increase of reserve requirements included in the Eurodollar
Rate Reserve Percentage) in or in the interpretation of any law or regulation
or (ii) the compliance by any Lender Party with any guideline or request from
any central bank or other governmental authority in any case introduced,
changed, interpreted or requested after the date hereof (whether or not having
the force of law), there shall be (x) imposed, modified or deemed applicable
any reserve, special deposit or similar requirement against assets held by, or
letters of credit or guarantees issued by, or deposits in or for the account
of, any Lender Party or (y) imposed on any Lender Party any other condition
relating to this Agreement or the Advances made by it or the issuance by it of
Letters of Credit, and the result of any event referred to in clause (x) or
(y) shall be to increase the cost to such Lender Party of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining Letters of Credit or of agreeing to make or
of making or maintaining Letter of Credit Advances, then the Borrower shall
from time to time, upon demand by such Lender Party (with a copy of such
demand to the Administrative Agent) made within 60 days after the first date
on which such Lender Party has actual knowledge that it is entitled to make
demand for payment under this Section 2.10(a), pay to the Administrative Agent
for the account of such Lender Party additional amounts sufficient to
compensate such Lender Party for such increased cost; provided, however, that
if such
58
Lender Party fails to so notify the Borrower within such 60-day period, such
increased cost shall commence accruing on such later date on which the Lender
Party notifies the Borrower; provided further that, before making any such
demand, such Lender Party agrees to use its best efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost and would
not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Administrative Agent by such
Lender Party, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental or monetary authority in regard to capital adequacy (whether or
not having the force of law) including, without limitation, any guideline
contemplated by the report dated July 1988 entitled "International Convergence
of Capital Management and Capital Standards" issued by the Bank Committee on
Banking Regulations and Supervisory Practices, in any case in which such law,
regulation, guideline or request became effective or was made after the date
hereof, has or would have the effect of reducing the rate of return on the
capital of, or maintained by, such Lender Party or any corporation controlling
such Lender Party as a consequence of such Lender Party's Advances or
Commitments hereunder or the issuance by it of any Letter of Credit and other
commitments of this type, by increasing the amount of capital required or
expected to be maintained by such Lender Party or any corporation controlling
such Lender Party, to a level below that which such Lender Party or any
corporation controlling such Lender Party could have achieved but for such
adoption, effectiveness, change or compliance (taking into account such Lender
Party's or such corporation's policies with respect to capital adequacy), then
the Borrower shall, from time to time, pay such Lender Party, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent)
made within 60 days after the first date on which such Lender Party has actual
knowledge that it is entitled to make demand for payment under this Section
2.10(b) of such reduction in return, such additional amount as may be
specified by such Lender Party as being sufficient to compensate such Lender
Party for such reduction in return, to the extent that such Lender Party
reasonably determines such reduction to be attributable to the existence of
such Lender Party's commitment to lend or to issue Letters of Credit hereunder
or to the issuance or maintenance of any Letters of Credit; provided, however,
that if such Lender Party fails to so notify the Borrower within such 60-day
period, such amounts shall commence accruing on such later date on which the
Lender Party notifies the Borrower. A certificate as to such amounts submitted
to the Borrower and the Administrative Agent by such Lender Party shall be
conclusive and binding for all purposes, absent manifest error.
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(c) Notwithstanding any other provision of this Agreement,
if the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances hereunder, then, upon
written notice by such Lender to the Borrower (with a copy to the
Administrative Agent), (i) each Eurodollar Rate Advance under each Facility
under which such Lender has a Commitment will automatically Convert into a
Base Rate Advance and (ii) the obligation under each Facility under which such
Lender has a Commitment to make, or to Convert Base Rate Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender shall designate a different Eurodollar Lending Office if
the making of such a designation would avoid the need for giving such notice
and demand, and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. For purposes of this Section 2.10(c), a notice
to the Borrower by a Lender shall be effective with respect to any Eurodollar
Rate Advance on the last day of the then current Interest Period for such
Advance; provided, however, that, if it is not lawful for such Lender to
maintain such Advance until the end of the Interest Period applicable thereto,
then the notice to the Borrower shall be effective upon receipt by the
Borrower.
SECTION 2.11. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative
Agent not later than noon (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of
Section 2.08 and 2.10, Convert all or any portion of the Advances of one Type
comprising the same Borrowing into Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Base Rate
Advances shall be made on, and only on, the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be subject to the limitation set forth in
Section 2.02(e) and in an amount not less than $5,000,000 and each Conversion
of Advances comprising part of the same Borrowing under any Facility shall be
made ratably among the Appropriate Lenders in accordance with their
Commitments under such Facility. Each such notice of Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion,
(ii) the Advances to be Converted and (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the initial Interest Period for such
Advances.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $5,000,000, such
Advances shall automatically Convert into Base Rate Advances.
60
(ii) Upon the occurrence and during the continuance of any
Event of Default (or, in the case of any involuntary proceeding described in
Section 6.01(e), a Default), (A) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (B) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00
A.M. (New York City time) on the day when due in U.S. Dollars to the
Administrative Agent at the Administrative Agent's Account in same day funds.
The Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or commitment fees
ratably (other than amounts payable pursuant to Section 2.10 or 2.13) to the
Lender Parties for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount payable to any
Lender Party to such Lender Party for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording
of the information contained therein in the Register pursuant to Section
8.07(c), from and after the effective date specified in such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
Party assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if and
to the extent payment of principal, interest or fees owed to such Lender Party
is not made when due hereunder or, in the case of a Lender under the Note or
Notes held by such Lender, to charge from time to time against any or all of
the Borrower's accounts with such Lender Party any amount so due.
(c) All computations of interest based on the Eurodollar
Rate, the Base Rate or the Federal Funds Rate and of commitment fees and
Letter of Credit commissions shall be made by the Administrative Agent, on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or commitment fees are payable. Each determination by
the Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under any Note shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment
fee, as the case may be; provided,
61
however, that, if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to any
Lender Party hereunder or under any Note that the Borrower will not make such
payment in full, the Administrative Agent may assume, or at its option request
confirmation from the Borrower, that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each such
Lender Party on such due date an amount equal to the amount then due such
Lender Party. If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each Lender Party shall repay to
the Administrative Agent forthwith on demand such amount distributed to such
Lender Party together with interest thereon, for each day from the date such
amount is distributed to such Lender Party until the date such Lender Party
repays such amount to the Administrative Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for
application to the Obligations under the Loan Documents under circumstances
for which the Loan Documents do not specify the Advances or the Facility to
which, or the manner in which, such funds are to be applied, the
Administrative Agent may, but shall not be obligated to, elect to distribute
such funds in respect of a Facility to each appropriate Lender Party ratably
in accordance with such Lender Party's proportionate share of the principal
amount of all outstanding Advances under such Facility, in repayment or
prepayment of such of the outstanding Advances under such Facility or other
Obligations owed to such Lender Party, and for application to such principal
installments, as the Administrative Agent shall direct.
SECTION 2.13. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in accordance with
Section 2.12, free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender Party
and the Administrative Agent, (i) taxes imposed on its income, and franchise
taxes and backup withholding taxes imposed on it, by the United States or the
jurisdiction under the laws of which such Lender Party or the Administrative
Agent (as the case may be) is organized or any political subdivision or taxing
authority thereof or therein, (ii) taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Lender Party's or, in either
such case, the Administrative Agent's principal office or Applicable Lending
Office or any political subdivision or taxing authority thereof or therein and
(iii) United States withholding tax payable with respect to payments hereunder
under laws (including, without limitation any statute, treaty, ruling,
determination or regulation) in effect on the Initial Date with respect to
such Lender Party or the Administrative Agent, but not excluding any United
States withholding tax payable as a result of any change in such laws
62
occurring after the Initial Date (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note to
any Lender Party or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions of
Taxes (including deductions of Taxes applicable to additional sums payable
under this Section 2.13) such Lender Party or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions of Taxes been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law; provided, however, that any such Lender Party shall designate a different
Applicable Lending Office if, in the judgment of such Lender Party, such
designation would avoid the need for, or reduce the amount of, any Taxes
required to be deducted from or in respect of any sum payable hereunder to
such Lender Party or the Administrative Agent and would not, in the judgment
of such Lender Party, be otherwise disadvantageous to such Lender Party.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Lender Party and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.13) paid by such Lender Party or the
Administrative Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto; provided that, in the event such Lender Party or the
Administrative Agent, as the case may be, successfully contests the assessment
of such Taxes or Other Taxes or any liability arising therefrom or with
respect thereto, such Lender Party or the Administrative Agent shall refund,
to the extent of any refund thereof made to such Lender Party or the
Administrative Agent, any amounts paid by the Borrower under this Section
2.13(c) in respect of such Taxes, Other Taxes or liabilities arising therefrom
or with respect thereto. Each Lender Party and the Administrative Agent agree
that it will contest such Taxes, Other Taxes or liabilities if (i) the
Borrower furnishes to it an opinion of reputable tax counsel acceptable to
such Lender Party or the Administrative Agent to the effect that such Taxes or
Other Taxes were wrongfully or illegally imposed and (ii) such Lender Party or
the Administrative Agent determines, in its sole discretion, that it would not
be disadvantaged or prejudiced in any manner whatsoever as a result of such
contest. This indemnification shall be made within 30 days from the date such
Lender Party or the Administrative Agent (as the case may be) makes written
demand therefor.
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(d) Within 30 days after the date of any payment of Taxes,
the Borrower will furnish to the Administrative Agent, at its address referred
to in Section 8.02, appropriate evidence of payment thereof. If no Taxes are
payable in respect of any payment hereunder or under the Notes by the Borrower
from an account or branch outside the United States or on behalf of the
Borrower by a payor that is not a United States person, the Borrower will
furnish to the Administrative Agent, at such address, a certificate from each
appropriate taxing authority, or an opinion of counsel acceptable to the
Administrative Agent, in either case stating that such payment is exempt from
or not subject to Taxes. For purposes of this Section 2.13, the terms "United
States" and "United States person" shall have the meanings specified in
Section 7701 of the Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States and the Administrative Agent, if
organized under the laws of a jurisdiction outside the United States, shall,
on or prior to the Initial Date and from time to time thereafter if requested
in writing by the Borrower or the Administrative Agent (but only so long
thereafter as such Lender Party or the Administrative Agent remains lawfully
able to do so), provide the Borrower and (in the case of any such Lender Party
other than the Administrative Agent) the Administrative Agent with two duly
completed copies of Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender Party or the Administrative Agent is entitled to
benefits under an income tax treaty to which the United States is a party that
reduces the rate of withholding tax on payments under this Agreement or the
Notes or certifying that the income receivable pursuant to this Agreement or
the Notes is effectively connected with the conduct of a trade or business in
the United States.
(f) For any period with respect to which the Administrative
Agent or a Lender Party has failed to provide the Borrower with the
appropriate forms described in subsection (e) above (other than if such
failure is due to a change in law occurring after the date on which such
person was originally required to provide such forms, or if such forms are
otherwise not required under subsection (e) above), the Administrative Agent
or such Lender Party shall not be entitled to increased payments or
indemnification under subsection (a) or (c) above with respect to Taxes
imposed by the United States; provided, however, that should the
Administrative Agent or a Lender Party become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such
steps as the Administrative Agent or such Lender Party shall reasonably
request to assist the Lender Party to recover such Taxes if, in the judgment
of the Borrower such steps would avoid the need for, or reduce the amount of,
any Taxes required to be deducted from or in respect of any sum payable
hereunder to the Administrative Agent or such Lender Party and would not, in
the judgment of the Borrower, be disadvantageous to the Borrower.
(g) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this
64
Section 2.13 shall survive the payment in full of principal and interest
hereunder and under the Notes.
(h) If a Lender Party shall change its Applicable Lending
Office other than (i) at the request of the Borrower or (ii) at a time when
such change would not result in this Section 2.13 requiring the Borrower to
make a greater payment than if such change had not been made, such Lender
Party shall not be entitled to receive any greater payment under this Section
2.13 than such Lender Party would have been entitled to receive had it not
changed its Applicable Lending Office.
SECTION 2.14. Sharing of Payments, Etc. If any Lender Party
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of the Advances owing to it
(other than pursuant to Section 2.10 or 2.13) in excess of its ratable share
of payments on account of the Advances obtained by all the Lender Parties,
such Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Advances owing to them as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that, if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender Party,
such purchase from each Lender Party shall be rescinded and such Lender Party
shall repay to the purchasing Lender Party the purchase price to the extent of
such recovery together with an amount equal to such Lender Party's ratable
share (according to the proportion of (i) the amount of such Lender Party's
required repayment to (ii) the total amount so recovered from the purchasing
Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered. The
Borrower agrees that any Lender Party so purchasing an interest or
participating interest from another Lender Party pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such interest or
participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
SECTION 2.15. Removal of Lender. In the event that any
Lender Party demands payment of costs or additional amounts pursuant to
Section 2.10 or Section 2.13 or asserts pursuant to Section 2.10(c) that it is
unlawful for such Lender Party to make Eurodollar Rate Advances, then (subject
to such Lender Party's right to rescind such demand or assertion within 10
days after the notice from the Borrower referred to below) the Borrower may,
upon 20 days' prior written notice to such Lender Party and the Administrative
Agent, elect to cause such Lender Party to assign its Advances and Commitments
in full to an assignee institution selected by the Borrower that meets the
criteria of an Eligible Assignee and is reasonably satisfactory to the
Administrative Agent, so long as such Lender Party receives payment in full in
cash of the outstanding principal amount of all Advances made by it and all
accrued and unpaid interest thereon and all other
65
amounts due and payable to such Lender Party as of the date of such assignment
(including without limitation amounts owing pursuant to Section 2.10 or 2.13),
and in such case such Lender Party agrees to make such assignment, and such
assignee shall agree to accept such assignment and assume all obligations of
such Lender Party hereunder, in accordance with Section 8.07.
SECTION 2.16. Defaulting Lender. (a) In the event that, at
any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower and (iii) the
Borrower shall be required to make any payment hereunder or under any other
Loan Document to or for the account of such Defaulting Lender, then the
Borrower may, so long as no Default shall occur or be continuing at such time
and to the fullest extent permitted by applicable law, set-off and otherwise
apply the Obligation of the Borrower to make such payment to or for the
account of such Defaulting Lender against the Obligation of such Defaulting
Lender to make such Defaulted Advance. In the event that the Borrower shall so
set-off and otherwise apply the Obligation of the Borrower to make any such
payment against the Obligation of such Defaulting Lender to make any such
Defaulted Advance on any date, the amount so set-off and otherwise applied by
the Borrower shall constitute for all purposes of this Agreement and the other
Loan Documents an Advance by such Defaulting Lender made on such date under
the Facility pursuant to which such Defaulted Advance was originally required
to have been made pursuant to Section 2.01. Such Advance shall be considered,
for all purposes of this Agreement, to comprise part of the Borrowing in
connection with which such Defaulted Advance was originally required to have
been made pursuant to Section 2.01. The Borrower shall notify the
Administrative Agent at any time the Borrower reduces the amount of the
Obligation of the Borrower to make any payment otherwise required to be made
by it hereunder or under any other Loan Document as a result of the exercise
by the Borrower of its right set forth in this subsection (a) and shall set
forth in such notice (A) the name of the Defaulting Lender and the Defaulted
Advance required to be made by such Defaulting Lender and (B) the amount
set-off and otherwise applied in respect of such Defaulted Advance pursuant to
this subsection (a). Any portion of such payment otherwise required to be made
by the Borrower to or for the account of such Defaulting Lender which is paid
by the Borrower, after giving effect to the amount set-off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be applied by
the Administrative Agent as specified in subsection (b) or (c) of this Section
2.16.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Amount to the Administrative Agent, the Collateral Agent or any of
the other Lender Parties and (iii) the Borrower shall make any payment
hereunder or under any other Loan Document to the Administrative Agent for the
account of such Defaulting Lender, then the Administrative Agent may, on its
behalf or on behalf of such other Lender Parties and to the fullest extent
permitted by applicable law, apply at such time the amount so paid by the
Borrower to or for
66
the account of such Defaulting Lender to the payment of each such Defaulted
Amount up to the amount required to pay such Defaulted Amount. In the event
that the Administrative Agent shall so apply any such amount to the payment of
any such Defaulted Amount on any date, the amount so applied by the
Administrative Agent shall constitute for all purposes of this Agreement and
the other Loan Documents payment, to such extent, of such Defaulted Amount on
such date. Any such amount so applied by the Administrative Agent shall be
retained by the Administrative Agent or distributed by the Administrative
Agent to such other Lender Parties, ratably in accordance with the respective
portions of such Defaulted Amounts payable at such time to the Administrative
Agent and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, the Collateral Agent and the
other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent and the Collateral
Agent for any Defaulted Amounts then owing to the Administrative
Agent and the Collateral Agent, ratably in accordance with such
respective Defaulted Amounts then owing to the Administrative Agent
and the Collateral Agent; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in
accordance with such respective Defaulted Amounts then owing to such
other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.16.
(c) In the event that, at any one time, (i) any Lender Party
shall be Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, the
Administrative Agent, the Collateral Agent or any other Lender Party shall be
required to pay or distribute any amount hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower,
the Collateral Agent or such other Lender Party shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent
shall, to the fullest extent permitted by applicable law, hold in escrow such
amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative
Agent in an account with Citibank, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c).
The terms applicable to such account, including the rate of interest payable
with respect to the credit balance of such account from time to time, shall be
Citibank's standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time
67
shall be held by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the provisions of,
this subsection (c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to
time to the extent necessary to make any Advances required to be made by such
Defaulting Lender and to pay any amount payable by such Defaulting Lender
hereunder and under the other Loan Documents to the Administrative Agent, the
Collateral Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and
amounts required to be made or paid at such time, in the following order of
priority:
(i) first, to the Administrative Agent and the Collateral
Agent for any amount then due and payable by such Defaulting Lender
to the Administrative Agent and the Collateral Agent hereunder,
ratably in accordance with such respective amounts then due and
payable to the Administrative Agent and the Collateral Agent;
(ii) second, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender
Parties hereunder, ratably in accordance with such respective amounts
then due and payable to such other Lender Parties; and
(iii) third, to the Borrower for any Advance then required
to be made by such Defaulting Lender pursuant to the Commitment of
such Defaulting Lender.
In the event that such Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at
such time with respect to such Defaulting Lender shall be distributed by the
Administrative Agent to such Defaulting Lender and applied by such Defaulting
Lender to the Obligations owing to such Lender Party at such time under this
Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender
under this Section 2.16 are in addition to other rights and remedies which the
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and which the Administrative Agent, the Collateral Agent or any Lender
Party may have against such Defaulting Lender with respect to any Defaulted
Amount.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date.
Article II hereof shall be effective on and as of the date (the "Effective
Date"), on which each of the following conditions precedent shall have been
satisfied or duly waived:
(a) There shall have been no adverse change since June 3,
1996 in the corporate and legal structure and capitalization of each
A Company, each Designated Operating Company and the Bank, including
the terms and conditions of the charter, bylaws and each class of
capital stock of each such Person and of each agreement or instrument
relating to such structure or capitalization, except as contemplated
by existing consents, amendments and waivers delivered in connection
with the Existing Credit Agreement; the Lenders shall be satisfied
with the corporate and legal structure and capitalization of each of
National Health Care Group Inc., Revlon Guarantor, Revlon Holdings
Inc., Revlon Worldwide Corporation and Revlon, including the terms
and conditions of the charter, by-laws and each class of capital
stock of each such Person and of each agreement or instrument
relating to such structure or capitalization.
(b) Before giving effect to the transactions contemplated by
this Agreement, there shall have occurred no Material Adverse Change
since December 31, 1995 relating to any of the Loan Parties, the FN
Parties and the Designated Operating Companies.
(c) There shall exist no action, suit, investigation,
litigation or proceeding affecting any of the Loan Parties, the FN
Parties and the Designated Operating Companies pending or threatened
before any court, governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect (in the case of
clause (a) of the definition thereof, the term "Person" shall refer
to such Loan Party, such FN Party or such Designated Operating
Company, as the case may be) or (ii) purports to affect the legality,
validity or enforceability of this Agreement, any Note, any other
Loan Document, any Related Document, any FN Document or the
consummation of the transactions contemplated hereby and thereby.
(d) Nothing shall have come to the attention of the Lender
Parties in respect of any of the A Companies, the Designated
Operating Companies or the Bank that is inconsistent with or
different from in any adverse respect any of the results of the due
diligence investigations of such Persons conducted in connection with
the Original Credit Agreement, the Second Credit Agreement, the Third
Credit Agreement or the Existing Credit Agreement; the Lenders shall
be satisfied with the
69
results of their due diligence investigation of National Health Care
Group Inc., Revlon Guarantor, Revlon Holdings Inc., Revlon Worldwide
Corporation and Revlon; and the Lender Parties shall have been given
such access to the management, records, books of account, contracts
and properties of each A Company, each Designated Operating Company
or the Bank as they shall have requested.
(e) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lender Parties and all accrued expenses
of the Administrative Agent (including the reasonable fees and
expenses of counsel to the Administrative Agent).
(f) The Lenders shall be satisfied that the Borrower
has the ability to service the interest payments in respect of the
Facilities.
(g) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall beneficially own at least
a majority of the Voting Stock of Marvel.
(h) The Administrative Agent or the Collateral Agent, as the
case may be, shall have received on or before the Effective Date the
following, each dated as of the Effective Date (unless otherwise
specified), in form and substance satisfactory to the Administrative
Agent (unless otherwise specified) and (except for the Notes) in
sufficient copies for each Lender Party:
(i) the Tranche A Revolving Credit Notes to the
order of the Lenders;
(ii) the Tranche B Revolving Credit Notes to the
order of the Lenders;
(iii) certified copies of the resolutions of the
board of directors of the Borrower and each other Loan Party
approving this Agreement, the Notes and each other Loan
Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement, the Notes and each other Loan Document;
(iv) a certificate of the Secretary or an Assistant
Secretary of the Borrower and each other Loan Party
certifying the names and true signatures of the officers of
the Borrower and such other Loan Party authorized to sign
this Agreement, the Notes and each other Loan Document to
which they are or are to be parties and the other documents
to be delivered hereunder and thereunder;
70
(v) a copy of a certificate of the Secretary of
State of the state of incorporation of the Borrower, each
other Loan Party, each Designated Operating Company and each
other A Company, dated reasonably near the Effective Date,
listing the charter of such Person and each amendment
thereto on file in his office and certifying that (A) such
amendments are the only amendments to such Person's charter
on file in his office, (B) such Person has paid all
franchise taxes to the date of such certificate and (C) such
Person is duly incorporated or organized and in good
standing under the laws of such state, and a copy of a
certificate of corporate existence of the Bank, dated
reasonably near the Effective Date from the Office of Thrift
Supervision;
(vi) (A) a certificate of each A Company signed on
behalf of such Person by its President or a Vice President
and its Secretary or any Assistant Secretary, dated as of
the Effective Date (the statements made in such certificate
shall be true on and as of the Effective Date), certifying
as to (1) the absence of any amendments to the charter of
such Person since the date of the Secretary of State's
certificate referred to in clause (v) above, (2) the absence
of any amendments to the bylaws of such Person since the
date of the certificate in respect of such bylaws that was
delivered to the Administrative Agent pursuant to the terms
of Section 3.01 or 3.02, as the case may be, of the Original
Credit Agreement, (3) the due incorporation and good
standing of such Person as a corporation under the laws of
the relevant state of incorporation, and the absence of any
proceeding for the dissolution or liquidation of such
Person, (4) the truth in all material respects of the
representations and warranties made by such Person contained
in the Loan Documents as though made on and as of the
Effective Date and (5) the absence of any event occurring
and continuing, or resulting from the Effective Date, that
constitutes a Default, (B) a certificate of ▇▇▇▇▇▇▇
Guarantor signed on behalf of ▇▇▇▇▇▇▇ Guarantor by its
President or a Vice President and its Secretary or any
Assistant Secretary, dated as of the Effective Date (the
statements made in such certificate shall be true on and as
of the Effective Date), certifying as to (1) the absence of
any amendments to the charter of ▇▇▇▇▇▇▇ since the date of
the Secretary of State's certificate referred to in clause
(v) above, (2) the absence of any amendments to the bylaws
of ▇▇▇▇▇▇▇ since the date of the certificate in respect of
such bylaws that was delivered to the Administrative Agent
pursuant to the terms of Sections 3.01 and 3.02 of the
Original Credit Agreement and (3) the due incorporation and
good standing of ▇▇▇▇▇▇▇ as a corporation organized under
the laws of the State of Delaware, and the absence of any
proceeding for the dissolution or liquidation of ▇▇▇▇▇▇▇,
(C) a certificate of the Borrower signed on behalf of the
Borrower by its President or a Vice President and its
Secretary or any Assistant Secretary, dated as of the
Effective Date (the statements made in
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such certificate shall be true on and as of the Effective
Date), certifying as to (1) the absence of any amendments to
the charter of Marvel since the date of the Secretary of
State's certificate referred to in clause (v) above, (2) the
absence of any amendments to the bylaws of Marvel since the
date of the certificate in respect of such bylaws that was
delivered to the Administrative Agent pursuant to the terms
of Sections 3.01 and 3.02 of the Original Credit Agreement,
and (3) the due incorporation and good standing of Marvel as
a corporation organized under the laws of the State of
Delaware, and the absence of any proceeding for the
dissolution or liquidation of Marvel, (D) a certificate of
New World Guarantor signed on behalf of New World Guarantor
by its President or a Vice President and its Secretary or
any Assistant Secretary, dated as of the Effective Date (the
statements made in such certificate shall be true on and as
of the Effective Date), certifying as to (1) the absence of
any amendments to the charter of New World since the date of
the Secretary of State's certificate referred to in clause
(v) above, (2) the absence of any amendments to the bylaws
of New World since the date of the certificate in respect of
such bylaws that was delivered to the Administrative Agent
pursuant to the terms of Section 3.02 of the Original Credit
Agreement and (3) the due incorporation and good standing of
New World as a corporation organized under the laws of the
State of Delaware, and the absence of any proceeding for the
dissolution or liquidation of New World, and (E) a
certificate of C&F Guarantor signed on behalf of C&F
Guarantor by its President or a Vice President and its
Secretary or any Assistant Secretary, dated as of the
Effective Date (the statements made in such certificate
shall be true on and as of the Effective Date), certifying
as to (1) the absence of any amendments to the charter of
MCG since the date of the Secretary of State's certificate
referred to in clause (v) above, (2) the absence of any
amendments to the bylaws of MCG since the date of the
certificate in respect of such bylaws that was delivered to
the Administrative Agent pursuant to the terms of Section
3.01 of the Third Credit Agreement and (3) the due
incorporation and good standing of MCG as a corporation
organized under the laws of the State of Delaware, and the
absence of any proceeding for the dissolution or liquidation
of MCG;
(vii) a certificate of Mafco to the effect (A) that
no information provided by Mafco or any Subsidiary of Mafco
to the Administrative Agent or any Lender in connection with
the Original Credit Agreement, the Second Credit Agreement,
the Third Credit Agreement, the Existing Credit Agreement or
this Agreement, as such information has been amended,
supplemented or superseded by any other information
delivered to the same parties receiving such information
contained or contains any material misstatement of fact or
omitted or omits to state any material fact necessary to
make the statements
72
therein, in the light of the circumstances under which they
were made, not misleading except that, as to any financial
model included therein, such certificate shall be limited to
a statement that such model was prepared in good faith by
Mafco's or such Subsidiary's management based on assumptions
believed to be reasonable when made and may be further
qualified by a statement to the effect that because
assumptions as to future results are inherently subject to
uncertainty and contingencies beyond Mafco's or such
Subsidiary's control, actual results of Mafco or such
Subsidiary may be higher or lower, (B) the Mafco Guaranty is
in full force and effect on the Effective Date, (C) that
other than the agreements referenced in Section 3.01(h)(xi),
the charter documents of each A Company and each FN Party,
the Loan Documents and the Related Documents, there is no
other agreement, contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding
on or affecting any A Company or any FN Party that imposes
any material Obligation or any material restriction on any A
Company or any FN Party, (D) that the agreements referenced
in Section 3.01(h)(xi) are the only agreements, contracts,
loan agreements, indentures, mortgages, deeds of trust,
leases or other instruments (1) evidencing Debt of any
Designated Operating Company or any of their Subsidiaries
outstanding on the Effective Date, (2) governing the terms
of Debt of any Designated Operating Company or any of their
Subsidiaries outstanding on the Effective Date, or (3)
containing any commitment or other agreement by any Person
to extend credit that would constitute Debt to any
Designated Operating Company or any of their Subsidiaries,
in each case that imposes or will impose material
Obligations or material restrictions on any Designated
Operating Company and its Subsidiaries taken as a whole and
(E) that there is no other agreement or contract binding on
or affecting any Designated Operating Company or any of
their Subsidiaries that contains provisions that would
restrict any Loan Party from performing or that would impair
the ability of any Loan Party to perform, any of the
obligations of such Loan Party under the Loan Documents;
(viii) the Mafco Security Agreement in
substantially the form of Exhibit D-1 duly executed by
Mafco, the Borrower Security Agreement in substantially the
form of Exhibit D-2 duly executed by the Borrower, and the
Borrower Parent Security Agreement in substantially the form
of Exhibit D-3 duly executed by Borrower Parent, in each
case together with evidence that all other action that the
Administrative Agent may deem necessary or desirable in
order to perfect and protect the Liens created by such
Security Agreement have been taken, together with:
73
(1) acknowledgement copies or stamped
receipt copies of proper amendments to the
financing statements previously filed in connection
with each Security Agreement; and
(2) evidence that all other action that
the Administrative Agent may deem necessary or
desirable in order to perfect and protect the Liens
created by each Security Agreement;
(ix) the Mafco Guaranty in substantially the form
of Exhibit E-1, duly executed by Mafco, the Borrower Parent
Guaranty in substantially the form of Exhibit E-2, duly
executed by Borrower Parent, the C&F Guaranty in
substantially the form of Exhibit E-3, duly executed by the
C&F Guarantor, the Cigar Guaranty in substantially the form
of Exhibit E-4, duly executed by Cigar Guarantor, the
▇▇▇▇▇▇▇ Guaranty in substantially the form of Exhibit E-5,
duly executed by ▇▇▇▇▇▇▇ Guarantor, the Flavors Guaranty in
substantially the form of Exhibit E-6, duly executed by
Flavors Guarantor, and the New World Guaranty in
substantially the form of Exhibit E-7, duly executed by New
World Guarantor;
(x) the C&F Pledge Agreement in substantially the
form of Exhibit F-1, duly executed by C&F Guarantor, the
Cigar Pledge Agreement in substantially the form of Exhibit
F-2, duly executed by Cigar Guarantor, the ▇▇▇▇▇▇▇ Pledge
Agreement in substantially the form of Exhibit F-3, duly
executed by ▇▇▇▇▇▇▇ Guarantor, the ▇▇▇▇▇▇▇ Worldwide Pledge
Agreement in substantially the form of Exhibit F-4, duly
executed by ▇▇▇▇▇▇▇ Worldwide, the Flavors Pledge Agreement
in substantially the form of Exhibit F-5, duly executed by
Flavors Guarantor, the Four Star Pledge Agreement in
substantially the form of Exhibit F-6, duly executed by Four
Star, the Mafco Pledge Agreement in substantially the form
of Exhibit F-7, duly executed by Mafco, the M&F Pledge
Agreement in substantially the form of Exhibit F-8, duly
executed by M&F, the New ▇▇▇▇▇▇▇ Pledge Agreement in
substantially the form of Exhibit F-9, duly executed by New
▇▇▇▇▇▇▇, the New World Pledge Agreement in substantially the
form of Exhibit F-10, duly executed by New World Guarantor,
and the Second ▇▇▇▇▇▇▇ Pledge Agreement in substantially the
form of Exhibit F-11, duly executed by ▇▇▇▇▇▇▇, together
with:
(1) acknowledgment copies or stamped
receipt copies of proper amendments to the
financing statements previously filed in connection
with each Pledge Agreement, in form and substance
satisfactory to the Administrative Agent,
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(2) completed requests for information,
dated on or before the Effective Date, listing the
financing statements referred to in clause(1) above,
(3) in the case of the Second ▇▇▇▇▇▇▇
Pledge Agreement, copies of the News Corp. Contract,
and
(4) evidence that all other action that
the Administrative Agent may deem necessary or
desirable in order to perfect and protect the Liens
created by the each Pledge Agreement has been
taken;
(xi) a certificate of Mafco to the effect that,
other than the agreements delivered to the Administrative
Agent pursuant to Section 3.01(g)(xii)(B) and Section
3.02(i)(xi)(B) of the Original Credit Agreement and other
than as specified in and delivered pursuant to such
certificate and the certificate of Mafco delivered pursuant
to Section 3.01(f)(x) of the Second Credit Agreement,
Section 3.01(f)(ix) of the Third Credit Agreement and
Section 3.01(f)(x) of the Existing Credit Agreement, there
is no other contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument (1) evidencing Debt
of any A Company, (2) governing the terms of Debt of any A
Company, or (3) containing any commitment or other agreement
by any Person to extend credit that would constitute Debt to
any A Company or any Designated Operating Company or any of
its Subsidiaries, in each case that imposes any material
obligation or any material restriction on any A Company or
any Designated Operating Company and its Subsidiaries, taken
as a whole;
(xii) such financial, business and other
information regarding each Loan Party and their Subsidiaries
as the Lender Parties shall have reasonably requested,
including, without limitation, information as to possible
contingent liabilities, tax matters, environmental matters,
obligations under ERISA and Welfare Plans, collective
bargaining agreements and other arrangements with employees,
annual financial statements of the Bank dated December 31,
1995, interim financial statements of the Bank dated the end
of the most recent fiscal quarter for which financial
statements are available, pro forma financial statements as
to the Borrower, and forecasts prepared by management of the
Bank, in form and substance satisfactory to the Lender
Parties, of balance sheets, income statements and cash flow
statements of the Bank on a quarterly basis for the term of
the Tranche A Revolving Credit Facility;
(xiii) certified copies of (A) an amendment and
restatement (each in form and substance satisfactory to the
Lender Parties) of the voting trust agreement relating to
the capital stock of the Borrower, the Borrower Parent,
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C&F Guarantor, Cigar Guarantor, ▇▇▇▇▇▇▇ Guarantor, Flavors
Guarantor, New World Guarantor, FG Guarantor and First
Gibraltar and (B) the Term Credit Agreement;
(xiv) copies of the Equity Contribution Agreement,
duly executed by the Borrower and Borrower Parent, in
substantially the form of Exhibit G, and the First Gibraltar
Loan Agreement, duly executed by First Gibraltar and
Borrower Parent, in substantially the form of Exhibit H;
(xv) a letter, in form and substance satisfactory
to the Administrative Agent, from Mafco to Ernst & Young,
independent certified public accountants, advising such
accountants that the Administrative Agent and the Lender
Parties have relied upon the financial statements of
▇▇▇▇▇▇▇, New World and MCG in determining whether to enter
into the Loan Documents and have been authorized to exercise
all rights of Mafco to require such accountants to disclose
any and all financial statements and any other information
of any kind that they may have with respect to such Persons
and their Subsidiaries and directing such accountants to
comply with any reasonable request of the Administrative
Agent or any Lender Party for such information;
(xvi) a letter, in form and substance satisfactory
to the Administrative Agent, from the Bank to KPMG Peat
Marwick, independent certified public accountants, advising
such accountants that the Administrative Agent and the
Lender Parties have relied upon the financial statements of
the Bank in determining whether to enter into the Loan
Documents and have been authorized to exercise all rights of
the Bank to require such accountants to disclose any and all
financial statements and any other information of any kind
that they may have with respect to the Bank and its
Subsidiaries and directing such accountants to comply with
any reasonable request of the Administrative Agent or any
Lender Party for such information;
(xvii) favorable opinions of counsel to Mafco
reasonably satisfactory to the Lender Parties, in form and
substance reasonably satisfactory to the Lender Parties;
(xviii) a favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
reasonably satisfactory to the Administrative Agent; and
(xix) such other information, approvals, opinions
or other documents as the Administrative Agent may
reasonably request.
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SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Lender to make an Advance (other than a
Letter of Credit Advance made by the Issuing Bank or a Lender pursuant to
Section 2.03(c)) on the occasion of each Borrowing (including the initial
Borrowing), and the obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance) or renew a Letter of Credit and the right of
the Borrower to request the issuance or renewal of a Letter of Credit, shall
be subject to the further conditions precedent that on the date of such
Borrowing or issuance (a) the following statements shall be true (and each of
the giving of the applicable Notice of Borrowing or Notice of Issuance and the
acceptance by the Borrower of the proceeds of such Borrowing or of such Letter
of Credit or the renewal of such Letter of Credit shall constitute a
representation and warranty by the Borrower that both on the date of such
notice and on the date of such Borrowing or issuance or renewal such
statements are true):
(i) The representations and warranties contained in the Loan
Documents are correct in all material respects on and as of such
date, before and after giving effect to such Borrowing or issuance
and to the application of the proceeds therefrom, as though made on
and as of such date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties were true, correct and complete in all
material respects on and as of such earlier date; and
(ii) No event has occurred and is continuing, or would
result from such Borrowing or issuance or from the application of the
proceeds therefrom, which constitutes a Default,
(b) the Borrower shall, on the seventh Business Day prior to the date of such
Borrowing or issuance, deliver to the Administrative Agent either (1) a
Look-Forward Certificate or (2) a Deposit Certificate if a Look-Forward
Certificate has been delivered to the Administrative Agent within 90 days
prior to the date of such Borrowing or issuance, and the Required Lenders
shall not have determined, within 4 Business Days following the date of
receipt of such Look-Forward Certificate or Deposit Certificate, as the case
may be, in their reasonable discretion, that the pro forma amounts available
to be loaned by First Gibraltar to Borrower Parent, together with amounts
received by Mafco pursuant to or in connection with any Related Document, will
be less than $8 million in any calendar quarter or will not be sufficient to
pay interest on the Advances then outstanding, (c) in the case of the first
Borrowing after the New Marvel Shares have been pledged pursuant to the Loan
Documents and the "Loan Documents" under the Term Credit Agreement, the
Borrower shall have delivered to the Administrative Agent an appropriately
completed Federal Reserve Form U-1 for each Lender and (d) the Administrative
Agent shall have received such other certificates, opinions and other
documents as any Lender Party through the Administrative Agent may reasonably
request in order to confirm (i) the accuracy of the Borrower's representations
and
77
warranties, (ii) the Borrower's timely compliance with the terms, covenants
and agreements set forth in this Agreement, and (iii) the absence of any
Default.
SECTION 3.03. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in Section
3.01, each Lender Party shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lender Parties unless an officer of the Administrative Agent responsible
for the transactions contemplated by this Agreement shall have received notice
from such Lender Party prior to the earlier of the initial Borrowing or the
initial issuance of a Letter of Credit specifying its objection thereto and if
such earlier event consists of a Borrowing, such Lender Party shall not have
made available to the Administrative Agent such Lender Party's ratable portion
of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to
so qualify or be licensed would not have a Material Adverse Effect
(with respect to clause (a) of the definition thereof, the term
"Person" shall refer to the Borrower) and (iii) has all requisite
corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding capital stock of the
Borrower has been validly issued, is fully paid and non-assessable
and is owned by the Borrower Parent free and clear of all Liens
except for the Liens created by the Collateral Documents.
(b) Set forth on Schedule II hereto is a complete and
accurate list relating to the Borrower, showing as of the date hereof
the jurisdiction of its incorporation, the number of shares of each
class of capital stock authorized, and the number outstanding, on the
date hereof and the percentage of the outstanding shares of each such
class owned (directly or indirectly) by Borrower Parent and the
number of shares covered by all outstanding options, warrants, rights
of conversion or purchase and similar rights at the date hereof.
78
(c) The execution, delivery and performance by the Borrower
of this Agreement, the Notes, each Loan Document and each Related
Document to which it is or is to be a party and the consummation by
the Borrower of the transactions contemplated hereby, are within the
Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene the Borrower's
charter or by-laws, (ii) violate any law (including, without
limitation, the Exchange Act), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach
of, or constitute a default under, any loan agreement, contract,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries (other than
any Subsidiaries of the Borrower) or any of its or their properties,
the effect of which conflict, breach or default is reasonably likely
to have a Material Adverse Effect (with respect to clause (a) of the
definition thereof, the term "Person" shall refer to the Borrower) or
(iv) except for the liens created by the Collateral Documents, the
voting trust agreements (other than the voting trust agreements
relating to the capital stock of FN Holdings and FN Parent) referred
to in Sections 3.01(g)(xvi) and 3.02(i)(xv) of the Original Credit
Agreement, the Amended and Restated Voting Trust Agreement dated as
of December 16, 1996 among The Bank of New York, the Cigar Guarantor,
C&F Guarantor and the Collateral Agent, the Amended and Restated
Voting Trust Agreement dated as of December 16, 1996 among The Bank
of New York, the Flavors Guarantor, C&F Guarantor and the Collateral
Agent, the Amended and Restated Voting Trust Agreement dated as of
December 16 , 1996 among Trans Network Insurance Services Inc., FG
Guarantor, The Bank of New York and the Collateral Agent, the Second
Amended and Restated Voting Trust Agreement dated as of December 16,
1996 among FG Guarantor, First Gibraltar, The Bank of New York and
the Collateral Agent and the voting trust agreement to be entered
into (on or prior to the Revlon Inclusion Date) by Revlon Finance
Corporation, Revlon Guarantor, The Bank of New York and the
Collateral Agent, result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of any Loan
Party or any of its Subsidiaries (other than the Subsidiaries of the
Borrower). The Borrower is not in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination
or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which would be reasonably likely to have a
Material Adverse Effect (with respect to clause (a) of the definition
thereof, the term "Person" shall refer to the Borrower).
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for (i) the due execution, delivery and performance
by the Borrower of this Agreement or the Notes or any other Loan
Document or any Related Document to which it is or is to be a
79
party or for the consummation of the transactions contemplated
hereby, (ii) the grant by the Borrower of the Liens granted by it
pursuant to the Collateral Documents, (iii) the perfection or
maintenance of the Liens created by the Collateral Documents
(including the first priority nature thereof) or (iv) the exercise by
the Administrative Agent or any Lender Party of its rights under the
Loan Documents or the remedies in respect of the Collateral pursuant
to the Collateral Documents, except for the filing of financing
statements in accordance with Sections 3.01 and 3.02 of the Original
Credit Agreement, Section 3.01(f)(vii) and (viii) of the Second
Credit Agreement, Section 3.01(f)(vii) of the Third Credit Agreement,
Section 3.01(f)(ix) of the Existing Credit Agreement and the filing
of amendments to financing statements in accordance with Section 3.01
and except as may be required in connection with the disposition of
any portion of the Collateral by laws affecting the offering and sale
of securities generally; provided, however, that no representation or
warranty is made as to any consent of, authorization, approval or
other action by, or notice to or filing with, any banking agency or
regulatory body applicable to the Administrative Agent, the
Collateral Agent, the Syndication Agent or the Documentation Agent.
(e) This Agreement has been, and each of the Notes, each
other Loan Document to which the Borrower is a party when delivered
hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes and each other
Loan Document to which the Borrower is a party when delivered
hereunder will be, the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforceability of creditor's
rights generally.
(f) The Consolidated and consolidating balance sheets of
Marvel III and its Subsidiaries as at December 31, 1995, and the
related Consolidated and consolidating statements of income and cash
flows of Marvel III and its Subsidiaries for the fiscal year then
ended, accompanied, in the case of the aforementioned Consolidated
balance sheets and related Consolidated statements of income and cash
flows, by an opinion of Ernst & Young, independent public
accountants, and the Consolidated and consolidating balance sheets of
Marvel III and its Subsidiaries as at September 30, 1996, and the
related Consolidated and consolidating statements of income and cash
flows of Marvel III and its Subsidiaries for the nine months then
ended, duly certified by the chief financial officer of Marvel III,
copies of which have been furnished to each Lender Party, fairly
present, subject, in the case of said balance sheets as at September
30, 1996, and said statements of income and cash flows for the three
months then ended, to year-end audit adjustments, the Consolidated
and consolidating financial condition of Marvel III and its
Subsidiaries as at such dates and the Consolidated and consolidating
results of the operations of Marvel III and its
80
Subsidiaries for the periods ended on such dates, all in accordance
with generally accepted accounting principles applied on a consistent
basis.
(g) There is no pending or threatened action, proceeding,
governmental investigation or arbitration affecting any Loan Party,
the Bank or any of their Subsidiaries (other than any Subsidiary of
the Borrower ) before any court, governmental agency or arbitrator,
which is reasonably likely to have a Material Adverse Effect (with
respect to clause (a) of the definition thereof, the term "Person"
shall refer to such Loan Party or the Bank, as the case may be) or
that purports to affect the legality, validity or enforceability of
this Agreement, any Note, any other Loan Document or any Related
Document or the consummation of the transactions contemplated hereby
or thereby.
(h) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock and no
proceeds of any Advance or drawings under any Letter of Credit will
be used to purchase or carry any Margin Stock (other than the ▇▇▇▇▇▇▇
Worldwide ▇▇▇▇▇, common stock of ▇▇▇▇▇▇▇ or the New Marvel Shares),
or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.
(i) No proceeds of any Advance or drawings under any Letter
of Credit will be used to acquire any equity security of a class that
is registered pursuant to Section 12 of the Exchange Act (other than
the ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇, common stock of ▇▇▇▇▇▇▇ and the New
Marvel Shares).
(j) The Borrower and its ERISA Affiliates are in compliance
in all material respects with the applicable provisions of ERISA and
the Code with respect to each Plan thereof. No ERISA Event has
occurred or is reasonably expected to occur with respect to any Plan
of the Borrower or any of its ERISA Affiliates. The amount of all
Unfunded Pension Liabilities under all Plans of the Borrower and its
ERISA Affiliates does not exceed $60,000,000. None of the Borrower or
any of its ERISA Affiliates has made contributions or incurred any
Withdrawal Liability to any Multiemployer Plan within the past five
years, and it is not reasonably expected that such contributions
shall be made or required or that such liability shall be incurred in
any such case in amounts or under circumstances that would be
reasonably likely to result in a material liability to the Borrower
or any of its ERISA Affiliates. Schedule B (Actuarial Information) to
the 1995 annual report (Form 5500 Series) for each Plan of the
Borrower and each of its ERISA Affiliates, copies of which have been
filed with the Internal Revenue Service and furnished or made
available to the Lender Parties, is complete and accurate in all
material respects and fairly presents the funding status of such
Plan, and since the date of such Schedule B there has been no
material adverse change in such funding status. The obligations of
the Borrower
81
and its Subsidiaries for post-retirement benefits to be provided
under Plans which are welfare benefit plans (as defined in Section
3(l) of ERISA) are not reasonably likely to have a Material Adverse
Effect (in the case of clause (a) of the definition thereof, the term
"Person" shall refer to the Borrower).
(k) The operations and properties of the Borrower are in
substantial compliance with all Environmental Laws, all necessary
Environmental Permits have been obtained and are in effect for the
operations and properties of the Borrower and the Borrower is in
compliance with all such Environmental Permits, except, as to all of
the above, where the failure to do so would not be reasonably likely
to have a Material Adverse Effect (in the case of clause (a) of the
definition thereof, the term "Person" shall refer to the Borrower);
and no circumstances exist that are reasonably likely to (i) form the
basis of an Environmental Action against the Borrower or any of its
properties or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under
any Environmental Law that would, in the case of either (i) or (ii)
above, be reasonably likely to have a Material Adverse Effect (in the
case of clause (a) of the definition thereof, the term "Person" shall
refer to the Borrower).
(l) The Borrower has filed, has caused to be filed or has
been included in all tax returns (Federal, state, local and foreign)
required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties.
(m) The Borrower is not an "investment company," or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances,
nor the issuance of any Letters of Credit, nor the application of the
proceeds or repayment thereof by the Borrower, nor the consummation
of the other transactions contemplated hereby, will violate any
provision of such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(n) The Borrower is Solvent.
(o) Set forth on Schedule III hereto is a complete and
accurate list of all Debt (other than intercompany Debt, Debt under
the Loan Documents and Debt under the Term Credit Agreement and the
"Loan Documents" referred to therein) of the Borrower as of the date
hereof, showing as of the date hereof the principal amount
outstanding thereunder; and there is no other agreement, contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting the Borrower that imposes any
material Obligation or material restriction on the Borrower.
82
(p) Set forth on Schedule IV hereto is a complete and
accurate list of all Investments held by the Borrower as of the date
hereof, showing as of the date hereof the amount, obligor or issuer
and maturity, if any, thereof.
SECTION 4.02. Representations and Warranties Applicable to
Marvel. During the Marvel Inclusion Period, the representations and warranties
contained in Section 4.01(g), (k), (l) and (m) and in the last sentence of
Section 4.01(c) shall be deemed to also cover Marvel and its Subsidiaries as
if such Persons were explicitly referred to in such Sections.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and, during the
Marvel Inclusion Period, cause Marvel and each of its Subsidiaries to
comply, in all material respects with all applicable laws, rules,
regulations and orders (such compliance to include, without
limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith), the failure
to comply with which would, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect (with respect to
clause (a) of the definition thereof, the term "Person" shall refer
to the Borrower).
(b) Compliance with Environmental Laws. Comply and, during
the Marvel Inclusion Period, cause Marvel and each of its
Subsidiaries and all lessees and all other Persons occupying its
properties to comply, in all material respects, with all
Environmental Laws and Environmental Permits applicable to its
operations and properties; obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause,
during the Marvel Inclusion Period, Marvel and each of its
Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of
its properties, in accordance with the requirements of all
Environmental Laws; provided, however, that the Borrower and, during
the Marvel Inclusion Period, Marvel and its Subsidiaries shall not be
required to undertake any such cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested
in good faith and by proper
83
proceedings and appropriate reserves are being maintained with
respect to such circumstances.
(c) Maintenance of Insurance. Maintain, and, during the
Marvel Inclusion Period, cause Marvel and each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the
Borrower, Marvel or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and, during the Marvel Inclusion Period, cause Marvel to
preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises; provided, however, that neither the
Borrower nor Marvel shall be required to preserve any of its rights
or franchises if the Board of Directors of the Borrower (or, in the
case of Marvel, the executive committee of the Board of Directors of
Marvel) shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or Marvel,
as the case may be, and that the loss thereof is not disadvantageous
in any material respect to the Borrower, Marvel or the Lender
Parties.
(e) Visitation Rights. At any reasonable time and from time
to time, upon reasonable prior notice permit the Administrative Agent
or any of the Lender Parties or any agents or representatives
thereof, to the extent reasonably requested to examine and make
copies of and abstracts from the records and books of account of, and
visit the properties of, the Borrower and, during the Marvel
Inclusion Period, Marvel and its Subsidiaries, and to discuss the
affairs, finances and accounts of the Borrower and, during the Marvel
Inclusion Period, Marvel and its Subsidiaries with any of their
officers or directors and with their independent certified public
accountants.
(f) Keeping of Books. Keep, and cause, during the Marvel
Inclusion Period, Marvel and each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall
be made of all financial transactions and the assets and business of
the Borrower, Marvel and each such Subsidiary to the extent necessary
to permit the preparation of the financial statements required to be
delivered hereunder.
(g) Maintenance of Properties, Etc. Maintain and preserve,
and cause, during the Marvel Inclusion Period, Marvel and each of its
Subsidiaries to maintain and preserve, all of its properties that are
used or useful in the conduct of its business in good working order
and condition, ordinary wear and tear excepted.
84
(h) Termination of Financing Statements. Upon the request of
the Administrative Agent, and at the expense of the Borrower, within
10 days after such request, furnish to the Administrative Agent
proper termination statements on Form UCC-3 covering such financing
statements as the Administrative Agent may reasonably request that
were listed in the completed requests for information referred to in
Section 3.01(h)(x)(4).
(i) Collateral Account. Maintain the Borrower
Collateral Account and the L/C Cash Collateral Account with Citibank
pursuant to the terms of the Borrower Security Agreement.
(j) Reporting Requirements. Furnish to the Lender
Parties through the Administrative Agent:
(i) as soon as available and in any event within 50
days after the end of each of the first three quarters of
each fiscal year of the Borrower, Consolidated balance
sheets of the Borrower and its Subsidiaries as of the end of
such quarter and Consolidated statements of earnings, cash
flows and stockholders' equity of the Borrower and its
Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such
quarter, certified (subject to normal year-end audit
adjustment and the absence of footnotes) on behalf of the
Borrower by the chief financial officer of the Borrower;
(ii) as soon as available and in any event within
105 days after the end of each fiscal year of the Borrower,
a copy of the annual audit report for such year for the
Borrower and its Subsidiaries, containing financial
statements for such year certified in a manner reasonably
acceptable to the Marvel IV Required Lenders by Ernst &
Young or other independent public accountants reasonably
acceptable to the Marvel IV Required Lenders;
(iii) together with each delivery of financial
statements pursuant to clauses (i) and (ii) above, a
certificate executed on behalf of the Borrower by a senior
officer of the Borrower stating that no Default has occurred
and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with
respect thereto;
(iv) as soon as possible and in any event within
five days after knowledge of the occurrence of each Default
continuing on the date of such statement, a statement
executed on behalf of the Borrower by the chief
85
financial officer of the Borrower setting forth details of
such Default and the action which the Borrower has taken and
proposes to take with respect thereto;
(v) as soon as available and in any event no later
than February 1 of each fiscal year of the Bank, forecasts
prepared by management of the Bank, in form satisfactory to
the Administrative Agent, of balance sheets and income
statements on a quarterly basis for the term of the
Facilities;
(vi) promptly after the sending or filing thereof,
copies of any filings and statements that the Borrower or
any Subsidiary of the Borrower files with the Securities and
Exchange Commission or any national securities exchange;
(vii) promptly and in any event within (A) thirty
days after the Borrower knows or has reason to know that any
ERISA Event with respect to the Borrower or any of its ERISA
Affiliates has occurred, a statement describing such ERISA
Event and the action, if any, that the Borrower or such
ERISA Affiliate proposes to take with respect thereto, (B)
thirty days either after receipt thereof by the Borrower or
after the Borrower knows or has reason to know of the
receipt thereof by any of its ERISA Affiliates from the
sponsor of a Multiemployer Plan of the Borrower or any of
its ERISA Affiliates, a copy of each notice received by any
such Person concerning the imposition of Withdrawal
Liability upon such Person, the reorganization or
termination of such Multiemployer Plan, or the amount of the
liability incurred, or that may be incurred, by the Borrower
or any of its ERISA Affiliates in connection with any such
event and (C) ten Business Days either after receipt thereof
by the Borrower or after the Borrower knows or has reason to
know of the receipt thereof by any of its ERISA Affiliates,
copies of each notice from the PBGC stating its intention to
terminate any Plan of the Borrower or any of its ERISA
Affiliates or to have a trustee appointed to administer any
such Plan, provided that in the case of any event described
in clauses (A), (B) or (C) hereof, such event shall have a
Material Adverse Effect (with respect to clause (a) of the
definition thereof, the term "Person" shall refer to the
Borrower);
(viii) in the event of any change in GAAP from the
date of the annual financial statements referred to in
Section 4.01(f) and upon delivery of any financial statement
required to be furnished under clauses (i) or (ii) of this
Section 5.01(j), a statement of reconciliation conforming
any information contained in such financial statement with
GAAP as in effect on the date of the annual financial
statements referred to in Section 4.01(f);
86
(ix) promptly upon any officer of the Borrower
obtaining knowledge thereof, written notice of (A) the
institution or non-frivolous threat of any action, suit,
proceeding, governmental investigation or arbitration
against or affecting the Borrower or any of its Subsidiaries
or any property of the Borrower or any of its Subsidiaries
(any such action, suit, proceeding, investigation or
arbitration being a "Proceeding") or (B) any material
development in any Proceeding that is already pending, where
such Proceeding or development has not previously been
disclosed by the Borrower hereunder and would be reasonably
likely to have a Material Adverse Effect (in the case of
clause (a) of the definition of Material Adverse Effect, the
term "Person" shall refer to the Borrower); together in each
case with such other information as any Lender through the
Administrative Agent may reasonably request to enable the
Lenders and their counsel to evaluate such matters;
(x) promptly after the furnishing thereof, copies
of any statement or report furnished to any other holder of
the securities of the Borrower or, during the Marvel
Inclusion Period, of Marvel or of any Subsidiary of Marvel
pursuant to the terms of any indenture, loan or credit or
similar agreement and not otherwise required to be furnished
to the Lenders pursuant to any other clause of this Section
5.01(j);
(xi) promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan
Party or any Subsidiary of any Loan Party under or pursuant
to any Related Document and, from time to time upon request
by the Administrative Agent, such information and reports
regarding the Related Documents as the Administrative Agent
may reasonably request;
(xii) within 10 days after receipt, copies of all
Revenue Agent Reports (Internal Revenue Service Form 886),
or other written proposals of the Internal Revenue Service,
that propose, determine or otherwise set forth positive
adjustments to the Federal income tax liability of the
affiliated group (within the meaning of Section 1504(a)(1)
of the Internal Revenue Code) of which the Borrower is a
member aggregating $5,000,000 or more;
(xiii) promptly, and in any event within five
Business Days after the due date (with extensions) for
filing the final Federal income tax return in respect of
each taxable year, a certificate of the Borrower (a "Tax
Certificate"), signed on behalf of the Borrower by the
President or the chief financial officer of the Borrower,
stating that the common parent of the affiliated group
(within the meaning of Section 1504(a)(1) of the Internal
Revenue Code) of which the Borrower is a member has paid to
the Internal
87
Revenue Service or other taxing authority the full amount
that such affiliated group is required to pay in respect of
Federal income tax for such year;
(xiv) promptly after the occurrence thereof, notice
of any condition or occurrence on any property of the
Borrower or, during the Marvel Inclusion Period, Marvel or
any Subsidiary of Marvel that results in a material
noncompliance by the Borrower, Marvel or any of Marvel's
Subsidiaries with any Environmental Law or Environmental
Permit or would be reasonably likely to (i) form the basis
of an Environmental Action against the Borrower, Marvel or
any of Marvel's Subsidiaries or any such property that would
be reasonably likely to have a Material Adverse Effect (in
the case of clause (a) of the definition of Material Adverse
Effect, the term "Person" shall refer to the Borrower) or
(ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability
under any Environmental Law or Environmental Permit or would
be reasonably likely to (i) form the basis of an
Environmental Action against the Borrower, Marvel or any of
Marvel's Subsidiaries or such property that could have a
Material Adverse Effect (in the case of clause (a) of the
definition of Material Adverse Effect, the term "Person"
shall refer to the Borrower);
(xv) promptly after any deposit in the Borrower
Collateral Account, a certificate signed on behalf of the
Borrower by the president or chief financial officer of the
Borrower, stating the amount of such deposit and the source
of the funds of such deposit, together with a schedule in
form and substance reasonably satisfactory to the
Administrative Agent setting forth in reasonable detail the
computations and other information on which the amount and
source of such deposit were determined; and
(xvi) such other information respecting the
condition (financial or otherwise), operations, assets or
business of the Borrower or any of its Subsidiaries as any
Lender Party through the Administrative Agent may from time
to time reasonably request.
(k) Look-Forward Certificate. With respect to each deposit
(other than of income or proceeds of Collateral Investments) to the
Collateral Accounts (other than the Second Mafco Collateral Account
and the L/C Cash Collateral Account), the Borrower shall, within 15
Business Days prior to the date of such deposit or within five
Business Days after the date of such deposit, deliver a certificate
(the "Look-Forward Certificate") to the Administrative Agent stating
that the pro forma amounts available to be loaned by First Gibraltar
to Borrower Parent, together with amounts received by Mafco pursuant
to or in connection with any Related Document, will not be less than
$8 million in any calendar quarter and will not be insufficient to
pay
88
interest on the Advances then outstanding, together with a schedule
in form reasonably satisfactory to the Administrative Agent setting
forth in reasonable detail the computations, assumptions and other
information on which such certification is based) (taking into
account, among other things, the Bank's performance to date, the
quality of the Bank's assets and the presence of any agreement with
the Bank's regulators including, but not limited to, an agreement
relating to capital, asset quality, dividends or management);
provided, however, that, notwithstanding the foregoing, if a
Look-Forward Certificate has been delivered to the Administrative
Agent within 90 days prior to a deposit in the Mafco Collateral
Account of amounts paid under or in connection with any Related
Document or Asset Sale, the Borrower may, instead of delivering a
Look-Forward Certificate to the Administrative Agent, deliver a
certificate (a "Deposit Certificate") to the Administrative Agent,
within 15 Business Days prior to the date of such deposit or within
five Business Days after the date of such deposit, stating that (x)
there has been no adverse change in (1) the financial condition of
each of the Bank and Mafco and its Subsidiaries, taken as a whole,
since the date of the last Look-Forward Certificate that was
delivered to the Administrative Agent or (2) the projections
contained in such Look-Forward Certificate and (y) no event has
occurred and is continuing which constitutes an Event of Default or
would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
(l) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted
under the Loan Documents with any of their Affiliates (other than the
Borrower or any of its Subsidiaries) on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person that is not an Affiliate; provided, however, that for purposes
of this Section 5.01(l), the term "Affiliate" shall not include any
officer or director of the Borrower or such Subsidiary, as the case
may be, who does not possess directly or indirectly the power to vote
5% or more of the Voting Stock of the Borrower or its Subsidiaries;
provided further that nothing in this Section 5.01(l) shall restrict
the performance by the parties to (i) the Tax Sharing Agreement dated
as of April 22, 1993 between Mafco and Marvel Holdings Inc., (ii) the
Tax Sharing Agreement dated as of October 20, 1993 between Mafco and
Marvel (Parent) Holdings Inc. and (iii) the Amended and Restated Tax
Sharing Agreement dated as of January 1, 1994 among Mafco, Marvel III
Holdings Inc., Marvel and certain Subsidiaries of Marvel, in each
case, as the same may be amended, modified or otherwise supplemented
from time to time, of their respective obligations thereunder.
(m) Use of Proceeds. Use the proceeds of the Advances
for general corporate purposes of Mafco and its Subsidiaries;
provided, however, that on and after the Tranche B Termination Date,
no more than $200 million of the proceeds of
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the Advances outstanding at any time may be used for general
corporate purposes of Mafco and its Subsidiaries other than for the
purchase of the ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇ or for the payment, in cash,
of the exchange price to a holder of ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇ in
respect of such holder's ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇.
(n) Mafco Tax Group. Maintain its status as a member
of the affiliated group (within the meaning of Section 1504(a)(1)
of the Code) of which Mafco is the common parent.
(o) Net Cash Proceeds. Deposit all of the Net Cash Proceeds
received by the Borrower from and after the Effective Date from Asset
Sales (other than Net Cash Proceeds required to be applied to prepay
or repay the Facilities or the Debt outstanding under the Term Credit
Agreement) in the Mafco Collateral Account.
(p) ▇▇▇▇▇ Utilization. On the first Business Day of each
month or upon request of the Administrative Agent, deliver a written
report to the Administrative Agent and each Lender Party summarizing
the ▇▇▇▇▇ Utilization since the Effective Date.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist any Lien, upon or
with respect to any of its properties, whether now owned or hereafter
acquired, or sign or file under the Uniform Commercial Code of any
jurisdiction, a financing statement that names the Borrower as debtor
or sign any security agreement authorizing any secured party
thereunder to file such financing statement, or assign any right to
receive income, other than the following Liens: (i) Liens created by
the Loan Documents or the "Loan Documents" referred to in the Term
Credit Agreement; (ii) the Liens described on Schedule V provided
that in the event any property subject to any such Lien is released
from such Lien, such released property may not thereafter be
subjected to any Lien other than Liens created by the Loan Documents
or the "Loan Documents" referred to in the Term Credit Agreement;
(iii) mechanics', materialmen's, carriers' and similar Liens arising
in the ordinary course of business securing obligations that are not
overdue for a period of more than 30 days or which are being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained; (iv) Liens for taxes,
assessments and governmental charges or levies not yet due and
payable or which are being contested in good faith and by proper
proceedings and as to which appropriate reserves are being
maintained; and (v) judgment or other similar Liens, provided that
there shall be no period of more
90
than 10 consecutive days during which a stay of enforcement of the
related judgment shall not be in effect.
(b) Lease Obligations. Create, incur, assume or suffer to
exist any obligations as lessee (i) for the rental or hire of real or
personal property in connection with any sale and leaseback
transaction, or (ii) for the rental or hire of other real or personal
property of any kind under leases or agreements to lease having an
original term of one year or more.
(c) Mergers, Etc. Merge into or consolidate with any
Person or permit any Person to merge into it.
(d) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of any assets or grant any option or other right
to purchase, lease or otherwise acquire any assets except (i)
dispositions of obsolete, worn out or surplus property disposed of in
the ordinary course of business, (ii) a transfer of any ▇▇▇▇▇▇▇
Worldwide ▇▇▇▇▇ held by the Borrower to ▇▇▇▇▇▇▇ Worldwide and (iii)
sales, leases, transfers or other dispositions of assets for cash
and for no less than fair market value, provided that, in the case
of an Asset Sale, the Borrower complies with the provisions of Section
5.01(o) in respect of the Net Cash Proceeds of such Asset Sale.
(e) Dividends, Repurchases, Etc. Declare or pay any
dividends, purchase, redeem, retire, defease or otherwise acquire for
value any of its capital stock or any warrants, rights or options to
acquire such capital stock, now or hereafter outstanding, return any
capital to its stockholders as such, make any distribution of assets,
capital stock, warrants, rights, options, obligations or securities
to its stockholders as such, except that the Borrower may (i) declare
and deliver dividends and distributions payable only in common stock
or warrants, rights or options to acquire common stock, (ii) declare
and pay cash dividends to its stockholders in an amount not to exceed
the amount released by the Collateral Agent from the Borrower
Collateral Account pursuant to the provisions of Section 7 of the
Borrower Security Agreement or the proceeds of the Advances and the
proceeds of borrowings under the Term Credit Agreement, (iii) declare
and pay cash dividends to its stockholders in an amount not to exceed
the Net Cash Proceeds received by Mafco and its Subsidiaries from
Asset Sales on and after the Effective Date solely to permit the
compliance by Mafco and its Subsidiaries with the requirements of
Section 5.01(o) and Section 7(q) of the Mafco Guaranty and (iv) from
and after the later to occur of (A) the Tranche B Termination Date
and (B) the Term Credit Agreement Termination Date, declare and pay
cash dividends to its stockholders in an amount, together with the
aggregate amount of Investments made pursuant to Section 5.02(f)(ix),
not to exceed the aggregate amount of proceeds received by the
Borrower or any of its Subsidiaries from any sale, lease, transfer or
other disposition of all or any portion of the capital
91
stock or assets of Marvel III Holdings Inc., Marvel (Parent) Holdings
Inc., Marvel Holdings Inc. and Marvel (or any of its Subsidiaries).
(f) Investments. Make or hold any Investment in any Person,
other than (i) Investments by the Borrower and its Subsidiaries in
Cash Equivalents, (ii) a loan by the Borrower to Mafco of up to
$650,000,000 out of the proceeds of the Advances and the proceeds of
borrowings under the Term Credit Agreement, (iii) Investments by the
Borrower in Mafco or any of its Subsidiaries in an amount not to
exceed the sum of the amount released by the Collateral Agent from
the Borrower Collateral Account pursuant to the provisions of Section
7 of the Borrower Security Agreement plus the aggregate amount of any
Investments in the Borrower made by Mafco or any of its Subsidiaries
out of the proceeds from the amount released by the Collateral Agent
from the Mafco Collateral Accounts pursuant to Section 7 of the Mafco
Security Agreement, (iv) Investments existing on the date hereof, (v)
contributions by the Borrower of common stock of Marvel to Marvel III
Holdings Inc., Marvel Holdings Inc. or Marvel (Parent) Holdings Inc.,
(vi) Investments by the Borrower in the ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇,
(vii) Investments by the Borrower in the New Marvel Shares, (viii)
Investments in Mafco in an amount not to exceed the Net Cash Proceeds
received by Mafco and its Subsidiaries from Asset Sales on and after
the Effective Date solely to permit the compliance by Mafco and its
Subsidiaries with the requirements of Section 5.01(o) and Section
7(q) of the Mafco Guaranty and (ix) from and after the later to occur
of (A) the Tranche B Termination Date and (B) the Term Credit
Agreement Termination Date, Investments by the Borrower in Mafco or
any of its Subsidiaries in an amount, together with the aggregate
amount of the cash dividends paid by the Borrower pursuant to Section
5.02(e)(iv), not to exceed the aggregate amount of proceeds recevied
by the Borrower or any of its Subsidiaries from any sale, lease,
transfer or other disposition of all or any portion of the capital
stock or assets of Marvel III Holdings Inc., Marvel (Parent) Holdings
Inc., Marvel Holdings Inc. and Marvel (or any of its Subsidiaries).
(g) Change in Nature of Business. Engage in any
business other than the ownership of the capital stock of Marvel III
Holdings Inc.
(h) Accounting Changes. Make or permit any change in
accounting policies affecting (i) the presentation of financial
statements or (ii) reporting practices, except in either case as
required or permitted by GAAP.
(i) Debt. Create, incur, assume or suffer to exist any Debt
other than: (i) Debt under the Loan Documents and under the Term
Credit Agreement and the "Loan Documents" referred to therein and
(ii) endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business.
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(j) Charter Amendments. Amend its certificate of
incorporation or bylaws except that the Borrower may change its name
to Mafco Finance Corp.
(k) Prepayments, Etc. of Debt. Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Debt, other than the prepayment of
the Advances in accordance with the terms of this Agreement, or
amend, modify or change in any manner any term or condition of any
Debt or any agreement relating to such Debt other than (i) to make
mandatory or optional prepayments of the Debt under the Term Credit
Agreement pursuant to the terms thereof, (ii) prepayments of Debt
required by Section 7(q) of the Mafco Guaranty and (iii) amendments,
modifications and changes to the terms and conditions of the Term
Credit Agreement pursuant to its terms.
(l) Negative Pledge. Enter into or suffer to exist any
agreement prohibiting or conditioning the creation or assumption of
any Lien upon any of its property or assets other than (i) in favor
of the Administrative Agent and the Lender Parties, (ii) any
prohibition or condition existing on the date hereof or (iii) any
prohibition or condition contained in the Term Credit Agreement or
the "Loan Documents" referred to therein.
(m) Partnerships. Become a general partner in any
general or limited partnership.
(n) Capital Expenditures. Make any Capital
Expenditures.
(o) Issuance of Capital Stock. Issue any capital stock
or warrants, rights or options to acquire such capital stock.
(p) Payment Restrictions. Create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of the Borrower to (i) pay
dividends or make any other distributions on any of the Borrower's
capital stock, (ii) make loans or advances to Mafco or any subsidiary
of Mafco or (iii) repay or prepay any Debt owed by the Borrower other
than any (x) consensual encumbrances or restrictions existing on the
date hereof and (y) other consensual encumbrances or restrictions
that are no more onerous than those encumbrances and restrictions in
existence on the date hereof with respect to the Borrower.
93
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of, or
interest on, any Advance or any fees payable to the Administrative
Agent or any Lender hereunder, in each case when the same becomes due
and payable, or any Loan Party shall fail to make any other payment
hereunder within five Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made by any Loan Party or
any FN Party or under or in connection with any Loan Document or FN
Document shall prove to have been incorrect in any material respect
when made or confirmed; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(h), 5.01(i),
5.01(j), 5.01(k), 5.01(m), 5.01(n), 5.01(o) or 5.02, (ii) Mafco shall
fail to perform or observe any term, covenant or agreement contained
in Section 7(i), 7(j), 7(l), 7(o), 7(p), 7(q) or 8 of the Mafco
Guaranty, (iii) ▇▇▇▇▇▇▇ Guarantor shall fail to perform or observe
any term, covenant or agreement contained in Section 7(i), 7(k), 7(m)
or 8 of the ▇▇▇▇▇▇▇ Guaranty, (iv) Borrower Parent shall fail to
perform or observe any term, covenant or agreement contained in
Section 7(j) or 8 of the Borrower Parent Guaranty, (v) New World
Guarantor shall fail to perform or observe any term, covenant or
agreement contained in Section 7(h), 7(j), 7(k) or 8 of the New World
Guaranty, (vii) C&F Guarantor shall fail to perform or observe any
term, covenant or agreement contained in Section 7(h), 7(j), 7(k) or
8 of the C&F Guaranty, (vii) Cigar Guarantor shall fail to perform or
observe any term, covenant or agreement contained in Section 7(h),
7(j), 7(k) or 8 of the Cigar Guaranty, (viii) Flavors Guaranty shall
fail to perform or observe any term, covenant or agreement contained
in Section 7(h), 7(j), 7(k) or 8 of the Flavors Guaranty, (ix) on and
after the Revlon Inclusion Date, Revlon Guarantor shall fail to
perform or observe any term, covenant or agreement contained in
Section 7(h), 7(j) or 8 of the Revlon Guaranty or (x) any Loan Party
shall fail to perform or observe any other term, covenant or
agreement contained in any Loan Document on its part to be performed
or observed if such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender Party; or
(d) (i) Any A Company, any Designated Operating Company
or the Bankshall fail to pay any principal of or premium or interest
on any Debt which is
94
outstanding in a principal amount of at least $10,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of such A
Company, such Designated Operating Company or the Bank (as the case
may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to such Debt;
or (ii) any other event shall occur or condition shall exist (other
than (x) during the period from the date hereof through June 30,
1997, the breach by Marvel of certain financial covenants for the
fiscal quarter ended September 30, 1996, for the fiscal quarter
ending December 31, 1996, for the fiscal quarter ending March 31,
1997 and for the fiscal quarter ending June 30, 1997 under its senior
bank credit agreements and (y) in the case of the Specified Holding
Company Debt, any event or condition relating to Marvel, Marvel III
Holdings Inc., Marvel (Parent) Holdings Inc. or Marvel Holdings Inc.)
under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the maturity of such
Debt; or (iii) any such Debt shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or (iv) in
the case of any Specified Holding Company Debt, any event or
condition relating to Marvel, Marvel III Holdings Inc., Marvel
(Parent) Holdings Inc. or Marvel Holdings Inc. shall occur and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is
to accelerate the maturity of such Debt; or
(e) Any A Company, any Designated Operating Company (other
than Marvel) or the Bank shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against any
A Company, any Designated Operating Company (other than Marvel) or
any FN Party seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 45 days, or any of the actions sought in
such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial
part of its property) shall occur; or any A Company, any Designated
95
Operating Company (other than Marvel) or the Bank shall take any
corporate action to authorize any of the actions set forth above in
this Section 6.01(e); or
(f) Any judgment or order for the payment of money in
excess of $10,000,000 shall be rendered against any A Company, any
Designated Operating Company or the Bank and 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 or dismissed or bonded pending appeal; provided,
however, that any such judgment or order shall not be an Event of
Default under this Section 6.01(f) if and for so long as (i) the
entire amount of such judgment or order is covered by a valid and
binding policy of insurance between the defendant and the insurer
covering payment thereof and (ii) such insurer, which shall be rated
at least "A" by A.M. Best Company, has been notified of, and has not
disputed the claim made for payment of the amount of such judgment or
order; or
(g) Any non-monetary judgment or order shall be rendered
against any A Company, any Designated Operating Company or the Bank
that is reasonably likely to have a Material Adverse Effect (in the
case of clause (a) of the definition thereof, the term "Person" shall
refer to the Borrower) and 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 pending appeal; or
(h) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (or in the event of his incompetence
or death, his estate, heirs, executor, administrator, committee or
other personal representative) shall cease to beneficially own (i) at
least 80% of the Voting Stock of any A Company, any Designated
Operating Company (other than Marvel, New World and Revlon) or the
Bank, (ii) during the Marvel Inclusion Period, at least a majority of
the voting power of the Voting Stock of Marvel, (iii) prior to the
consummation of the New World Acquisition, at least a majority of the
voting power of the Voting Stock of New World or (iv) on and after
the Revlon Inclusion Date, at least a majority of the voting power of
the Voting Stock of Revlon, in each case other than as a result of an
Asset Sale pursuant to which all of the common stock held by Mafco
and its Subsidiaries in any A Company, any Designated Operating
Company or the Bank (or, in any such case, in such Person's direct or
indirect parent) is sold and the Net Cash Proceeds of such Asset Sale
is applied in accordance with the terms of the Loan Documents and the
"Loan Documents" referred to in the Term Credit Agreement; or
(i) Any ERISA Event shall have occurred with respect to
Mafco or any of its ERISA Affiliates and such ERISA Event, together
with any and all other ERISA
96
Events that shall have occurred with respect to Mafco or any of its
ERISA Affiliates, is reasonably likely to have a Material Adverse
Effect (with respect to clause (a) of the definition thereof, the
term "Person" shall refer to Mafco); or
(j) Mafco or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of the Borrower or
any of its ERISA Affiliates that it has incurred Withdrawal Liability
to such Multiemployer Plan in an amount that, when aggregated with
all other amounts required to be paid to Multiemployer Plans by Mafco
and its ERISA Affiliates as Withdrawal Liability (determined as of
the date of such notification), exceeds $10,000,000 or requires
payments exceeding $10,000,000 per annum; or
(k) Mafco or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of the Borrower or
any of its ERISA Affiliates that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV
of ERISA, and as a result of such reorganization or termination the
aggregate annual contributions of Mafco and its ERISA Affiliates to
all Multiemployer Plans that are then in reorganization or being
terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding
$10,000,000; or
(l) Any provision of any Loan Document, Related Document or
FN Document after delivery thereof pursuant to the Original Credit
Agreement, the Second Credit Agreement, the Third Credit Agreement,
the Existing Credit Agreement, Section 3.01 hereof or pursuant to the
definition of "Revlon Inclusion Date" shall for any reason (other
than pursuant to the terms thereof) cease to be valid and binding on
or enforceable against any party to it, or any party to any such
document shall so state in writing; or
(m) Any Collateral Document after delivery thereof pursuant
to the Original Credit Agreement, the Second Credit Agreement, the
Third Credit Agreement, the Existing Credit Agreement, Section 3.01
hereof or the definition of "Revlon Inclusion Date" shall for any
reason (other than pursuant to the terms thereof) cease to create a
valid and perfected first priority Lien on the Collateral purported
to be covered thereby; or
(n) Any provision of the FN Holdings Debt Document, the FN
Holdings New Debt Document, the Second New FN Holdings Debt Document,
the FN Holdings Preferred Stock or the FN Parent Debt Document shall
be terminated, amended, waived or otherwise modified without the
consent of the Marvel IV Required Lenders or any provision of the
First Gibraltar Charter Document shall be
97
amended or modified without the consent of the Marvel IV Required
Lenders (other than as permitted by the terms of the Mafco Guaranty);
or
(o) The Bank fails to maintain the minimum capital and
leverage ratios required as of the Effective Date for the Bank to be
considered as a "well capitalized" "savings association" pursuant to
12 U.S.C. Section 1831o and 12 C.F.R. Section 565, as such Sections
may be amended, reenacted or redesignated from time to time; or
(p) (i) The common stock of any Designated Operating Company
(other than New World, Marvel and Revlon) trading on the date hereof
shall cease to be publicly traded on the New York Stock Exchange;
(ii) at any time prior to the consummation of the New World
Acquisition, the common stock of New World shall cease to be publicly
traded on the New York Stock Exchange or the Nasdaq National Market
System; (iii) at any time prior to the later of the Tranche B
Termination Date and the Term Credit Agreement Termination Date, News
Corp. Preferred ADRs shall cease to be publicly traded; (iv) during
the Marvel Inclusion Period, the common stock of Marvel shall cease
to be publicly traded on the New York Stock Exchange or the Nasdaq
National Market System; or (v) on and after the Revlon Inclusion
Date, the common stock of Revlon shall cease to be publicly traded on
the New York Stock Exchange; or
(q) ▇▇▇▇▇▇ ▇. ▇▇▇▇ shall beneficially or legally own
shares of the common stock of FN Holdings other than shares of the
Class B Common Stock; or
(r) Any Person party to the Related Documents shall fail to
directly deposit in the Mafco Collateral Account (i) a payment to
Mafco under any Related Document (which payment is required to be
made and is permitted under each indenture and credit agreement to
which such Person is a party) or (ii) a loan to Mafco of the proceeds
of any payment received by such Person under any Related Document
(which loan is required to be made and is permitted under each
indenture and credit agreement to which such Person is a party) and
such failure shall remain unremedied for three Business Days; or
(s) (i) Mafco shall fail to furnish to the Administrative
Agent and the Lender Parties on or prior to December 1, 1997, a
business plan setting forth, in respect of all of the Debt of Mafco
and its Subsidiaries (other than Debt of the Designated Operating
Companies, the Bank, Revlon, Marvel, Marvel III Holdings Inc., Marvel
(Parent) Holdings Inc., Marvel Holdings Inc., Meridian Sports
Incorporated and their respective Subsidiaries) that is scheduled to
come due during calendar year 1998 and 1999, the method by which all
such Debt shall be repaid, prepaid, redeemed or refinanced on a
timely basis, including without limitation,
98
through Asset Sales, issuances of Debt, issuances of equity or
contributions to capital, in each case in reasonable detail as to the
identity of the assets to be sold, the issuer of the Debt or equity
and such other details as the Marvel IV Required Lenders shall
request or (ii) the Marvel IV Required Lenders shall not have
approved the form and substance of such business plan on or prior to
December 31, 1997;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Commitment of each Appropriate Lender to make Advances
(other than Letter of Credit Advances by the Issuing Bank or a Tranche A
Revolving Credit Lender pursuant to Section 2.03(c)) and of the Issuing Bank
to issue Letters of Credit to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent,
of the Required Lenders, by notice to the Borrower, declare the Notes, all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that, in the event of an
actual or deemed entry of an order for relief with respect to the Borrower
under the Federal Bankruptcy Code, (A) the obligation of each Lender to make
Advances (other than Letter of Credit Advances by an Issuing Bank or a Lender
pursuant to Section 2.03(c)) and of each Issuing Bank to issue Letters of
Credit shall automatically be terminated and (B) the Notes, all such interest
and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which
are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit
upon Event of Default. If any Event of Default shall have occurred and be
continuing, the Administrative Agent may, or shall at the request of the
Required Lenders, irrespective of whether it is taking any of the actions
described in Section 6.01 or otherwise, make demand upon the Borrower to, and
forthwith upon such demand the Borrower will, pay to the Administrative Agent
on behalf of the Lender Parties in same day funds at the Administrative
Agent's office designated in such demand, for deposit in the L/C Cash
Collateral Account, an amount equal to the aggregate Available Amount of all
Letters of Credit then outstanding. If at any time the Administrative Agent
determines that any funds held in the L/C Cash Collateral Account are subject
to any right or claim of any Person other than the Administrative Agent and
the Lender Parties or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit then outstanding, the
Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be
free and clear of any such right and claim.
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ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 7.01. Authorization and Action. Each Lender Party
(in its capacities as a Lender and the Issuing Bank (if applicable)) hereby
appoints and authorizes each of the Administrative Agent and the Collateral
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
Administrative Agent and the Collateral Agent, as the case may be, by the
terms hereof and thereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), each of the Administrative Agent and the Collateral Agent 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 the Required Lenders, and
such instructions shall be binding upon all Lender Parties and all holders of
Notes; provided, however, that neither the Administrative Agent nor the
Collateral Agent shall be required to take any action which exposes the
Administrative Agent or the Collateral Agent, as the case may be, to personal
liability or which is contrary to this Agreement or applicable law. Each of
the Administrative Agent and the Collateral Agent agrees to give to each
Lender Party prompt notice of each notice and other report given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's and Collateral Agent's
Reliance, Etc. Neither the Administrative Agent nor the Collateral Agent nor
any of their respective directors, officers, agents or employees, shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, each of the Administrative Agent and the Collateral Agent: (i) may
treat the payee of any Note as the holder thereof until the Administrative
Agent receives and accepts an Assignment and Acceptance entered into by the
Lender that is the payee of such Note, as assignor, and an Eligible Assignee,
as assignee, as provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for the Borrower), 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; (iii) makes no warranty or representation to any
Lender Party and shall not be responsible to any Lender Party for any
statements, warranties or representations (whether written or oral) made in or
in connection with the Loan Documents; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of the Loan Documents on the part of the
Borrower or to inspect the property (including the books and records) of the
Borrower; (v) shall not be responsible to any Lender
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Party for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with the
Loan Documents or any other instrument or document furnished pursuant hereto;
and (vi) shall incur no liability under or in respect of the Loan Documents by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though it were not the Administrative Agent
or the Collateral Agent and the term "Lender Party" or "Lender Parties" shall,
unless otherwise expressly indicated, include Citibank hereunder in its
individual capacity. Citibank and its affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or
own securities of the Borrower or any such Subsidiary, all as if Citibank were
not the Administrative Agent or the Collateral Agent and without any duty to
account therefor to the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender
Party acknowledges that it has, independently and without reliance upon either
the Administrative Agent or the Collateral Agent or any other Lender Party and
based on the financial statements referred to in Section 4.01(f) and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender Party
also acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Collateral Agent or any other Lender Party 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.
SECTION 7.05. Indemnification. (a) Each Lender Party
severally agrees to indemnify each of the Administrative Agent and the
Collateral Agent (in each case to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Administrative Agent or the Collateral Agent, as the case may be,
in any way relating to or arising out of the Loan Documents or any action
taken or omitted by the Administrative Agent or the Collateral Agent, as the
case may be, under the Loan Documents; provided, however, that no Lender Party
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's or the Collateral
Agent's gross negligence or
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willful misconduct. Without limitation of the foregoing, each Lender Party
agrees to reimburse the Administrative Agent and the Collateral Agent promptly
upon demand for its ratable share of any costs and expenses (including,
without limitation, fees and expenses of counsel) payable by the Borrower
under Section 8.04, to the extent that the Administrative Agent or the
Collateral Agent, as the case may be, is not promptly reimbursed for such
costs and expenses by the Borrower. For purposes of this Section 7.05(a), the
Lender Parties' respective ratable shares of any amount shall be determined,
at any time, according to the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender Parties,
(b) their respective Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time and (c) their respective Unused
Tranche A Revolving Credit Commitments and Unused Tranche B Revolving Credit
Commitments at such time; provided that the aggregate principal amount of
Letter of Credit Advances owing to the Issuing Bank shall be considered to be
owed to the Tranche A Revolving Credit Lenders ratably in accordance with
their respective Tranche A Revolving Credit Commitments. In the event that any
Defaulted Advance shall be owing by any Defaulting Lender at any time, such
Lender Party's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(a) to the extent of the amount of
such Defaulted Advance. The failure of any Lender Party to reimburse the
Administrative Agent or the Collateral Agent promptly upon demand for its
ratable share of any amount required to be paid by the Lender Party to the
Administrative Agent or the Collateral Agent, as the case may be, as provided
herein shall not relieve any other Lender Party of its obligation hereunder to
reimburse the Administrative Agent or the Collateral Agent, as the case may
be, for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse the
Administrative Agent or the Collateral Agent, as the case may be, for such
other Lender Party's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each Lender Party contained in this Section 7.05(a) shall
survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.
(b) Each Lender Party severally agrees to indemnify the
Issuing Bank (to the extent not promptly reimbursed by the Borrower) from and
against such Lender Party's ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the
Issuing Bank in any way relating to or arising out of the Loan Documents or
any action taken or omitted by the Issuing Bank under the Loan Documents;
provided, however, that no Lender Party shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Issuing Bank's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender Party agrees to reimburse the Issuing Bank promptly upon demand
for its
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ratable share of any costs and expenses (including, without limitation, fees
and expenses of counsel) payable by the Borrower under Section 8.04, to the
extent that the Issuing Bank is not promptly reimbursed for such costs and
expenses by the Borrower. For purposes of this Section 7.05(b), the Lender
Party's respective ratable shares of any amount shall be determined, at any
time, according to the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender Parties,
(b) their respective Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time plus (c) their respective Unused
Tranche A Revolving Credit Commitments and Unused Tranche B Revolving Credit
Commitments at such time; provided that the aggregate principal amount of
Letter of Credit Advances owing to the Issuing Bank shall be considered to be
owed to the Tranche A Revolving Credit Lenders ratably in accordance with
their respective Tranche A Revolving Credit Commitments. In the event that any
Defaulted Advance shall be owing by any Defaulting Lender at any time, such
Lender Party's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(b) to the extent of the amount of
such Defaulted Advance. The failure of any Lender Party to reimburse the
Issuing Bank promptly upon demand for its ratable share of any amount required
to be paid by the Lender Parties to the Issuing Bank as provided herein shall
not relieve any other Lender Party of its obligation hereunder to reimburse
the Issuing Bank for its ratable share of such amount, but no Lender Party
shall be responsible for the failure of any other Lender Party to reimburse
the Issuing Bank for such other Lender Party's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender Party
hereunder, the agreement and obligations of each Lender contained in this
Section 7.05(b) shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Administrative Agent and Collateral
Agent. Each of the Administrative Agent and the Collateral Agent may resign at
any time by giving written notice thereof to the Lender Parties and the
Borrower and may be removed at any time with or without cause by, in the case
of the Administrative Agent, the Required Lenders and, in the case of the
Collateral Agent, the Marvel IV Required Lenders. Upon any such resignation or
removal, the Required Lenders or the Marvel IV Required Lenders shall have the
right to appoint, with the consent of the Borrower, a successor Administrative
Agent or Collateral Agent, respectively, which shall be a Lender, or if no
Lender consents to act as Administrative Agent or Collateral Agent, as the
case may be, hereunder, an institution that would be permitted to be an
Eligible Assignee hereunder. If no successor Administrative Agent or
Collateral Agent, as the case may be, shall have been so appointed by the
Required Lenders or the Marvel IV Required Lenders, as the case may be, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's or Collateral Agent's giving of notice of resignation
or the Required Lenders' or the Marvel IV Required Lenders' removal of the
retiring Administrative Agent or Collateral Agent, then the retiring
Administrative Agent, or Collateral Agent, as the case may be, may, on behalf
of the Lender
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Parties, appoint a successor Administrative Agent or Collateral Agent, as the
case may be, which shall be a commercial bank that is acceptable to the
Borrower (which shall not unreasonably withhold its approval). Upon the
acceptance of any appointment as Administrative Agent or Collateral Agent, as
the case may be, thereunder by a successor Administrative Agent or Collateral
Agent, as the case may be, such successor Administrative Agent or Collateral
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent or
Collateral Agent, as the case may be, and the retiring Administrative Agent or
Collateral Agent, as the case may be, shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Administrative
Agent's or Collateral Agent's resignation or removal hereunder as
Administrative Agent or Collateral Agent, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent or Collateral Agent, as the case may be.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Marvel IV Required Lenders, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by each of the Lender Parties
(other than any Lender Party which is, at such time, a Defaulting Lender) and
the Term Credit Agreement Lenders (other than any Term Credit Agreement Lender
which is, at such time, a "Defaulting Lender" under the Term Credit
Agreement), do any of the following: (i) waive any of the conditions specified
in Section 3.01 or 3.02, (ii) change the definition of the term " Marvel IV
Required Lenders", (iii) release any material portion of the Collateral or
permit the creation, incurrence, assumption or existence of any Lien on any
material portion of the Collateral other than (A) releases of any material
portion of the Collateral or the creation, incurrence, assumption or existence
of any such Lien in connection with Asset Sales (which shall include, for
purposes of this Section 8.01, sales, monetizations or other disposals of the
News Corp. Preferred ADRs and the New Marvel Shares) the Net Cash Proceeds of
which are applied as contemplated by the Loan Documents and the "Loan
Documents" referred to in the Term Credit Agreement, (B) releases of the News
Corp. Preferred ADRs and the New Marvel Shares pursuant to the terms of the
Loan Documents and the "Loan Documents" under the Term Credit Agreement and
(C) the Liens created by the Collateral Documents and the Liens permitted by
Section 5.02(a), Section 8(a) of the Borrower Parent Guaranty, Section 8(a) of
the ▇▇▇▇▇▇▇ Guaranty, Section 8(a) of the Mafco Guaranty, Section 8(a) of the
C&F Guaranty, Section 8(a) of the Cigar Guaranty,
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Section 8(a) of the Flavors Guaranty, Section 8(a) of the New World Guaranty
and Section 8(a) of the Revlon Guaranty, (iv) amend this Section 8.01, (v)
increase the Commitments of the Lenders or subject the Lenders to any
additional obligations, (vi) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder or (vii) postpone any
date fixed for any mandatory reduction in the Commitments or for any payment
of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder or amend Section 2.04, 2.05(b) or 2.06(b) (other than
Section 2.05(b)(v), 2.06(b)(iv) or 2.06(b)(viii)); provided further that no
change may be made to the definition of the term "Required Lenders" unless
such change is in writing and signed by all of the Lender Parties (other than
any Lender Party which is, at such time, a Defaulting Lender); provided
further that no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders and Term Credit
Agreement Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or any Note; provided
further that no amendment, waiver or consent shall, unless in writing and
signed by the Collateral Agent in addition to the Lenders and Term Credit
Agreement Lenders required above to take such action, affect the rights or
duties of the Collateral Agent under this Agreement; provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Issuing Bank, in addition to the Lenders required above to take such action,
affect the rights or obligations of the Issuing Bank under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic, telex or cable communication) and mailed, telecopied,
telegraphed, telexed, cabled or delivered, if to the Borrower, at its address
at c/o MacAndrews and Forbes Holdings Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Secretary, if to any Financial Institution at its
Domestic Lending Office on Schedule I-A hereto; if to any other Lender Party,
at the address specified in the Assignment and Acceptance pursuant to which it
became a Lender Party; and if to the Administrative Agent or the Collateral
Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
___________, or, as to the Borrower, the Administrative Agent or the
Collateral Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
Borrower, the Administrative Agent and the Collateral Agent. All such notices
and communications shall be effective (i) when received, if mailed or
delivered or telecopied (including machine acknowledgment), or (ii) when
delivered to the telegraph company, confirmed by telex answerback or delivered
to the cable company, respectively, except that notices and communications to
the Administrative Agent pursuant to Article II or VII shall not be effective
until received by the Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part
of any Lender Party or the Administrative Agent or the Collateral Agent to
exercise, and no delay
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in exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. Costs; Expenses. (a) The Borrower agrees to
pay on demand all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Collateral Agent in connection with the
preparation, execution, delivery, administration, modification and amendment
of the Loan Documents and the other documents to be delivered hereunder
(including, without limitation, (A) all due diligence, transportation,
computer, duplication, appraisal, audit and insurance expenses and fees and
expenses of consultants engaged with the prior consent of the Borrower (which
consent shall not be unreasonably withheld) and (B) the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto, with respect to advising the Administrative Agent and the Collateral
Agent as to their respective rights and responsibilities, or the protection or
preservation of rights or interests, under the Loan Documents, with respect to
negotiations with the Borrower or with other creditors of the Borrower arising
out of any Default or any events or circumstances that may give rise to a
Default and with respect to presenting claims in, monitoring or otherwise
participating in any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally and any proceeding ancillary thereto).
The Borrower further agrees to pay on demand all reasonable out-of-pocket
costs and expenses of the Administrative Agent, the Collateral Agent and the
Lender Parties in connection with the enforcement of the Loan Documents and
the other documents to be delivered hereunder, whether in action, suit,
litigation, any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally or otherwise (including, without limitation, the
reasonable fees (including the allocated costs of internal counsel) and
reasonable expenses of counsel for the Administrative Agent, the Collateral
Agent and each Lender Party with respect thereto) and expenses in connection
with the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of any Eurodollar Rate
Advance is made by the Borrower to or for the account of a Lender Party other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.10(c) or 2.11, acceleration of the
maturity of the Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by such Lender Party (with a copy of such demand
to the Administrative Agent), pay to the Administrative Agent for the account
of such Lender Party any amounts required to compensate such Lender Party for
any additional losses, costs or expenses which it may reasonably incur as a
result of such payment, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender Party to fund or maintain such Advance.
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(c) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent and each Lender Party and each of their affiliates and their
officers, directors, trustees, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against
any Indemnified Party, in each case arising out of or in connection with or by
reason of (or in connection with the preparation for a defense of) any
investigation, litigation or proceeding arising out of, related to or in
connection with this Agreement and the transactions contemplated hereby,
whether or not an Indemnified Party is a party thereto, whether or not the
transactions contemplated hereby are consummated, whether or not any such
claim, investigation, litigation or proceeding is brought by the Borrower or
any other person and whether or not such Indemnified Party is a Lender Party
at such time) except (i) to the extent such claim, damage, loss, liability or
expense (x) is found in a final, non-appealable judgment by a court of
competent jurisdiction (a "Final Judgment") to have resulted from such
Indemnified Party's gross negligence or willful misconduct or (y) arises from
any legal proceedings commenced against any Lender Party by any other Lender
Party (in its capacity as such and not as Administrative Agent, Collateral
Agent, Documentation Agent or Syndication Agent), and (ii) in the case of any
litigation brought by the Borrower (A) seeking a judgment against any
Indemnified Party for any wrongful act or omission of such Indemnified Party
and (B) in which a Final Judgment is rendered in the Borrower's favor against
such Indemnified Party, the provisions of this paragraph will not be available
to provide indemnification for any damage, loss, liability or expense incurred
by such Indemnified Party in connection with such litigation described in
clause (i) or in connection with any claim for which Final Judgment is
rendered in the Borrower's favor in a litigation described in clause (ii) of
this Section 8.04(c).
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such
Lender Party to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower to such Lender Party now or
hereafter existing under this Agreement and the Note or Notes held by such
Lender Party, whether or not such Lender Party shall have made any demand
under this Agreement or such Note or Notes and although such obligations may
be unmatured. Each Lender Party agrees promptly to notify the Borrower after
any such set-off and application shall be made by such Lender Party, provided
that the failure to give such notice shall not affect the validity of such
set-off and application; provided further that no Lender Party shall exercise
any such right of set-off or any other right of set-off without the
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prior consent of the Administrative Agent. The rights of each Lender Party
under this Section 8.05 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Lender
Party may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been
notified by each Financial Institution that such Financial Institution has
executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Administrative Agent and each Lender Party and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Administrative Agent and the Required Lenders.
SECTION 8.07. Assignments and Participations. (a) Each
Lender may and, if demanded by the Borrower pursuant to Section 2.15, will
assign to one or more banks or other entities all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a
uniform, and not a varying, percentage of all rights and obligations under and
in respect of one or more Facilities; (ii) the amount of the Commitment of the
assigning Lender 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 be less than $5,000,000 and shall be an integral
multiple of $1,000,000 in excess thereof, or shall be an assignment to another
Lender or an assignment of all of the assigning Lender's rights and
obligations hereunder and under the Notes, (iii) each such assignment shall be
to another Lender, an Affiliate of the assigning Lender or to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the
Borrower pursuant to Section 2.15 shall be arranged by the Borrower after
consultation with the Administrative Agent and shall be either an assignment
of all of the rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment
as a result of a demand by the Borrower pursuant to Section 2.15 unless and
until such Lender shall have received one or more payments from either the
Borrower or one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of the Advances owing to
such Lender, together with accrued interest thereon to the date of payment of
such principal amount and all other amounts payable to such Lender under this
Agreement, (vi) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,000 from the assignee
and (vii) no such assignments shall be permitted without the consent of the
Administrative Agent and the Borrower (such
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consent not to be unreasonably withheld). Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01(f) and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent, the Collateral Agent, such assigning Lender 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; (v) such assignee confirms that it
is an Eligible Assignee; (vi) such assignee appoints and authorizes each of
the Administrative Agent and the Collateral Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent or the Collateral Agent, as the case may
be, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing under each Facility to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
109
all purposes, absent manifest error, and the Borrower, the Administrative
Agent, and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Note or Notes subject to such assignment,
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein
in the Register and (iii) give prompt notice thereof to the Borrower. Within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note or Notes to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it under a
Facility pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder under such Facility, a new Note to
the order of the assigning Lender in an amount equal to such Commitment
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A.
(e) The Issuing Bank may assign to an Eligible Assignee all
of its rights and obligations under the undrawn portion of its Letter of
Credit Commitment at any time; provided, however, that (i) except in the case
of an assignment to a Person that immediately prior to such assignment was an
Issuing Bank or an assignment of all of an Issuing Bank's rights and
obligations under this Agreement, the amount of the Letter of Credit
Commitment of the assigning Issuing Bank 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 be less than $3,000,000 and
shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each
such assignment shall be to an Eligible Assignee, (iii) the parties to each
such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with a processing and recordation fee of $3000 and (iv) no such
assignments shall be permitted without the consent of the Administrative Agent
and the Borrower (such consent not to be unreasonably withheld).
(f) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this
110
Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Borrower, the Administrative Agent,
the Collateral Agent 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 and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce or postpone any date fixed for payment of principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree
pursuant to an agreement substantially in the form of Exhibit I to preserve
the confidentiality of any confidential information relating to the Borrower
received by it from such Lender.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Governing Law; Submission to Jurisdiction.
(a) This Agreement and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting
in New York City, and any appellate court thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that 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. Subject to the foregoing and to
paragraph (c) below, nothing in this Agreement shall affect any right that any
party hereto
111
may otherwise have to bring any action or proceeding relating to this
Agreement against any other party hereto in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
New York State or Federal court and the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d) The Borrower agrees that service of process may be made
on the Borrower by personal service of a copy of the summons and complaint or
other legal process in any such suit, action or proceeding, or by registered
or certified mail (postage prepaid) to the address of the Borrower specified
in Section 8.02, or by any other method of service provided for under the
applicable laws in effect in the State of New York.
SECTION 8.09. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.10. No Liability of the Issuing Bank. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith;
(b) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (c) payment by the
Issuing Bank against presentation of documents that do not comply with the
terms of a Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except that the Borrower shall have a claim against the Issuing
Bank, and the Issuing Bank shall be liable to the Borrower, to the extent of
any direct, but not consequential, damages suffered by the Borrower that the
Borrower proves were caused by (i) the Issuing Bank's willful misconduct or
gross negligence in determining whether documents presented under any Letter
of Credit comply with the terms of the Letter of Credit or (ii) the Issuing
Bank's willful failure to make lawful payment under a Letter of Credit after
the presentation to it of a draft and certificates strictly complying with the
terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank may accept
112
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the
contrary.
SECTION 8.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWER,
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE DOCUMENTATION AGENT, THE
SYNDICATION AGENT AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS,
THE ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT,
THE DOCUMENTATION AGENT, THE
SYNDICATION AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MARVEL IV HOLDINGS INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent
By
-----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
as Documentation Agent
By
------------------------------------------
Name:
Title:
CHASE SECURITIES INC.,
as Syndication Agent
By
------------------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
as Managing Agent
By
--------------------------------------
Name:
Title:
SYNDICATION AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MARVEL IV HOLDINGS INC.
By
------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
THE FIRST NATIONAL BANK OF BOSTON,
as Documentation Agent
By
------------------------------------------
Name:
Title:
CHASE SECURITIES INC.,
as Syndication Agent
By
------------------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
as Managing Agent
By
--------------------------------------
Name:
Title:
SYNDICATION AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MARVEL IV HOLDINGS INC.
By
------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent
By
-----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
as Documentation Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Director
CHASE SECURITIES INC.,
as Syndication Agent
By
------------------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
as Managing Agent
By
--------------------------------------
Name:
Title:
SYNDICATION AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MARVEL IV HOLDINGS INC.
By
------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent
By
-----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
as Documentation Agent
By
------------------------------------------
Name:
Title:
CHASE SECURITIES INC.,
as Syndication Agent
By /s/
------------------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
as Managing Agent
By
--------------------------------------
Name:
Title:
SYNDICATION AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MARVEL IV HOLDINGS INC.
By
------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent
By
-----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
as Documentation Agent
By
------------------------------------------
Name:
Title:
CHASE SECURITIES INC.,
as Syndication Agent
By
------------------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
as Managing Agent
By /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
--------------------------------------
Name: L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
Title: Managing Director
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By /s/ Kunduck Moon
---------------------------------------
Name: Kunduck Moon
Title: Managing Director
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By
--------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as Managing Agent
By
--------------------------------------
Name:
Title:
FINANCIAL INSTITUTIONS AND
ISSUING BANK
BANK OF AMERICA ILLINOIS
By
---------------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By
---------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By /s/
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By
--------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as Managing Agent
By
--------------------------------------
Name:
Title:
FINANCIAL INSTITUTIONS AND
ISSUING BANK
BANK OF AMERICA ILLINOIS
By
---------------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By
---------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: AVP
THE FUJI BANK, LIMITED,
as Managing Agent
By
--------------------------------------
Name:
Title:
FINANCIAL INSTITUTIONS AND
ISSUING BANK
BANK OF AMERICA ILLINOIS
By
---------------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By
---------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By
--------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as Managing Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President & Manager
FINANCIAL INSTITUTIONS AND
ISSUING BANK
BANK OF AMERICA ILLINOIS
By
---------------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By
---------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By
--------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as Managing Agent
By
--------------------------------------
Name:
Title:
FINANCIAL INSTITUTIONS AND
ISSUING BANK
BANK OF AMERICA ILLINOIS
By /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
---------------------------------------
Name: L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
Title: Managing Director
CITIBANK, N.A.,
as Lender and Issuing Bank
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
CREDIT LYONNAIS NEW YORK BRANCH
By
-----------------------------------------
Name:
Title:
CREDIT SUISSE
By
------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION
By
-------------------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
-------------------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
-------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Lender and Issuing Bank
By
----------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE
By
------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION
By
-------------------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
-------------------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
-------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Lender and Issuing Bank
By
----------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
-----------------------------------------
Name:
Title:
CREDIT SUISSE
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Member Management
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
ING (U.S.) CAPITAL CORPORATION
By
-------------------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
-------------------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
-------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Lender and Issuing Bank
By
----------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
-----------------------------------------
Name:
Title:
CREDIT SUISSE
By
------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION
By /s/ Kunduck Moon
-------------------------------------------
Name: Kunduck Moon
Title: Managing Director
NATIONSBANK, N.A.
By
-------------------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
-------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Lender and Issuing Bank
By
----------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
-----------------------------------------
Name:
Title:
CREDIT SUISSE
By
------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION
By
-------------------------------------------
Name:
Title:
NATIONSBANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate
PILGRIM AMERICA PRIME RATE TRUST
By
-------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Lender and Issuing Bank
By
----------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
-----------------------------------------
Name:
Title:
CREDIT SUISSE
By
------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION
By
-------------------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
-------------------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By /s/ ▇▇▇▇▇▇ Tiffen
-------------------------------------------
Name: ▇▇▇▇▇▇ Tiffen
Title: Senior Vice President
SALOMON BROTHERS HOLDING
COMPANY INC
By /s/
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
-----------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By
-----------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By
------------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: AVP
THE CHASE MANHATTAN BANK
By
----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
-----------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By
-----------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By
------------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By
-----------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By
-----------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By
------------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Director
THE FUJI BANK, LIMITED
By
-----------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By
------------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
-----------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Manager
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By
------------------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
-----------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By
-----------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Deputy General Manager
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice Pres. Portfolio Mgr.
[REVOLVING CREDIT AGREEMENT]
SCHEDULE I
ADVANCES, COMMITMENTS AND APPLICABLE LENDING OFFICES
TRANCHE A TRANCHE B
REVOLVING CREDIT REVOLVING CREDIT
NAME OF BANK COMMITMENT COMMITMENT LETTER OF CREDIT COMMITMENT APPLICABLE LENDING OFFICE
------------ ---------- ------------ --------------------------- -------------------------
CITIBANK, N.A. $40,000,000 $4,250,000 $25,000,000 DOMESTIC:
--------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇ ▇▇▇▇▇▇▇▇
TEL: NO. ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 3685-2248
ACCOUNT NAME: MEDIUM TERM
FIN.
ATTENTION: ▇▇ ▇▇▇▇▇▇▇▇
REFERENCE: MARVEL IV HOLDINGS
EURODOLLAR:
----------
SAME
2
TRANCHE A TRANCHE B
REVOLVING CREDIT REVOLVING CREDIT
NAME OF BANK COMMITMENT COMMITMENT LETTER OF CREDIT COMMITMENT APPLICABLE LENDING OFFICE
------------ ---------- ------------ --------------------------- -------------------------
THE BANK OF
NEW YORK $20,000,000 $4,250,000 -0- DOMESTIC:
--------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇/34
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: GLA/ 111556
ACCOUNT NAME: COMMERCIAL
LOAN DEPT.
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
REFERENCE: MARVEL IV
HOLDINGS
EURODOLLAR:
----------
SAME
BANK OF AMERICA
ILLINOIS $15,000,000 $4,250,000 -0- DOMESTIC:
--------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇ ▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇-▇▇▇-▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 47-03421
ATTENTION: ACCOUNT
ADMINISTRATION-▇.▇▇▇▇▇
REFERENCE: MARVEL IV HOLDINGS
EURODOLLAR:
-----------
SAME
3
TRANCHE A TRANCHE B
REVOLVING CREDIT REVOLVING CREDIT
NAME OF BANK COMMITMENT COMMITMENT LETTER OF CREDIT COMMITMENT APPLICABLE LENDING OFFICE
------------ ---------- ------------ --------------------------- -------------------------
THE CHASE MANHATTAN
BANK $30,000,000 $4,250,000 -0- DOMESTIC:
--------
2 CHASE MANHATTAN PLAZA
NEW YORK, N.Y. 10081
ATTENTION: ▇▇▇▇▇ ▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇-▇▇▇▇-▇▇
VIA FED TRANSFER
ACCOUNT NO.: 900-9-0000-36
ACCOUNT NAME: COMMERCIAL
LOAN DEPT.
ATTENTION: ▇▇▇▇▇ ▇▇▇▇
REFERENCE: MAFCO HOLDING
EURODOLLAR:
----------
SAME
CREDIT LYONNAIS
NEW YORK BRANCH -0- $2,500,000 -0- DOMESTIC:
--------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 01-008820-001-00
ACCOUNT NAME: LOAN SERVICING
ATTENTION: ▇▇▇▇ ▇▇▇▇▇▇▇
REFERENCE: MAFCO
EURODOLLAR:
----------
SAME
4
TRANCHE A TRANCHE B
REVOLVING CREDIT REVOLVING CREDIT
NAME OF BANK COMMITMENT COMMITMENT LETTER OF CREDIT COMMITMENT APPLICABLE LENDING OFFICE
------------ ---------- ------------ --------------------------- -------------------------
CREDIT SUISSE $30,000,000 $4,250,000 -0- DOMESTIC:
--------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇ ▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 904996-02
ACCOUNT NAME: LOAN DEPT.
ATTENTION: ▇▇ ▇▇▇▇▇▇▇
REFERENCE: MARVEL IV HOLDINGS
EURODOLLAR:
----------
SAME
THE FIRST NATIONAL
BANK OF BOSTON $15,000,000 $4,250,000 -0- DOMESTIC:
--------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇ ▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: 01000390
ACCOUNT NO.: ▇▇▇▇▇▇▇
VIA FED TRANSFER
ATTENTION: ▇▇▇▇▇▇ ▇▇▇▇▇
REFERENCE: MARVEL IV
HOLDINGS
EURODOLLAR:
----------
SAME
5
TRANCHE A TRANCHE B
REVOLVING CREDIT REVOLVING CREDIT
NAME OF BANK COMMITMENT COMMITMENT LETTER OF CREDIT COMMITMENT APPLICABLE LENDING OFFICE
------------ ---------- ------------ --------------------------- -------------------------
THE FUJI BANK,
LIMITED $30,000,000 $4,250,000 -0- DOMESTIC:
--------
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 515011U3
ACCOUNT NAME: USCF III
ATTENTION: ▇▇▇▇▇ ▇▇▇▇▇
REFERENCE: MAFCO HOLDINGS
EURODOLLAR:
---------
SAME
THE LONG-TERM
CREDIT BANK
OF JAPAN, LTD. -0- $2,500,000 -0- DOMESTIC:
--------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇ ▇▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 220234834
ACCOUNT NAME: LONG-TERM
CREDIT BANK OF JAPAN
ATTENTION: ▇▇▇ ▇▇▇▇▇▇▇▇
REFERENCE: MAFCO HOLDINGS
INC.
EURODOLLAR:
----------
SAME
6
TRANCHE A TRANCHE B
REVOLVING CREDIT REVOLVING CREDIT
NAME OF BANK COMMITMENT COMMITMENT LETTER OF CREDIT COMMITMENT APPLICABLE LENDING OFFICE
------------ ---------- ------------ --------------------------- -------------------------
NATIONSBANK, N.A. -0- $4,250,000 -0- DOMESTIC:
--------
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 13662122506
ACCOUNT NAME: CORPORATE
CREDIT SERVICES SUPPORT
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
REFERENCE: MARVEL IV
HOLDINGS
EURODOLLAR:
----------
SAME
ING (U.S.) CAPITAL $15,000,000 $4,250,000 -0- DOMESTIC:
CORPORATION --------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: KUNDUCK MOON
TEL. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX NO.: (▇▇▇) ▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: ▇▇▇▇▇▇▇▇
ACCOUNT NAME: INTERNATIONALE
NEDERLANDEN (U.S.) CAPITAL
CORPORATION
REFERENCE: MARVEL IV
HOLDINGS
EURODOLLAR:
----------
SAME
7
TRANCHE A TRANCHE B
REVOLVING CREDIT REVOLVING CREDIT
NAME OF BANK COMMITMENT COMMITMENT LETTER OF CREDIT COMMITMENT APPLICABLE LENDING OFFICE
------------ ---------- ------------ --------------------------- -------------------------
▇▇▇ ▇▇▇▇▇▇ AMERICAN $25,000,000 -0- -0- DOMESTIC:
CAPITAL PRIME RATE --------
INCOME TRUST ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
TEL. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX NO.: (▇▇▇) ▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: ▇▇▇▇▇▇▇▇
ACCOUNT NAME: VKM PRIT
REFERENCE: MARVEL IV
HOLDINGS
EURODOLLAR:
----------
SAME
PILGRIM AMERICA
PRIME RATE
TRUST $30,000,000 $2,500,000 -0- DOMESTIC:
---------
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION:
TEL. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: ▇▇▇▇▇▇▇▇
ACCOUNT NAME: PL1F - PILGRIM
PRIME RATE TRUST
REFERENCE: MAFCO HOLDINGS
EURODOLLAR:
-----------
SAME
SALOMON BROTHERS -0- $4,250,000 -0- DOMESTIC:
HOLDING COMPANY INC --------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇
TEL. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
ABA NO.: 0710000013
VIA FED TRANSFER
ACCOUNT NO.: ▇▇▇▇▇▇▇
ACCOUNT NAME:
REFERENCE:
EURODOLLAR:
----------
SAME
FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SCHEDULE II
-----------
BORROWER
MARVEL IV HOLDINGS INC.
Jurisdiction of Incorporation: Delaware
Authorized Capital Stock: 1,000 shares of Common Stock
Shares Outstanding: 1,000 shares of Common Stock
Percentage Owned: 99.5% by Marvel V Holdings Inc.
Options, Warrants and Similar Rights: None
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE III
------------
DEBT
NONE
FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SCHEDULE IV
-----------
INVESTMENTS
INVESTMENT
PERSON ISSUER TYPE AMOUNT
------ ------ ---- ----------
Marvel IV Holdings Inc. Marvel III Holdings Inc. Common 100%
Stock
Investment in Marvel
Entertainment Group, Inc.
("Marvel") in respect of
Marvel's reimbursement
obligations relating to a
Letter of Credit (as defined
in the Revolving Credit
Agreement) in a face amount of
$4,000,000 to be issued under
the Existing Agreement or the
Revolving Credit Agreement in
favor of the landlord of a
building located in Las Vegas,
Nevada leased to a joint
venture between a subsidiary
of Marvel and Ebco Management,
Inc.
FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SCHEDULE V
-----------
LIENS
NONE
SCHEDULE VI
Defeased Debt Calculations
The Defeased Debt Amount for each Designated Person listed
below for any date of determination shall be calculated as follows for each
such Designated Person:
▇▇▇▇▇▇▇
Guarantor: The Defeased Debt Amount for ▇▇▇▇▇▇▇ Guarantor
shall be an amount equal to the sum of:
(i) the lesser of (x) the amount, if on
such date of determination ▇▇▇▇▇▇▇ Holdings is
permitted to optionally redeem, pursuant to the
terms of the ▇▇▇▇▇▇▇ Holdings Indenture, the Debt
outstanding thereunder, that ▇▇▇▇▇▇▇ Holdings would
be required to pay to redeem such Debt and (y) the
greater of (A) the "repurchase price" (assuming a
repurchase date 105 days after the date of
determination) of the aggregate amount of all Debt
outstanding under the ▇▇▇▇▇▇▇ Holdings Indenture as
of the repurchase date plus accrued and unpaid
interest thereon through the repurchase date, as
determined pursuant to Section 4.08(a) of the
▇▇▇▇▇▇▇ Holdings Indenture and (B) the aggregate
amount required as of the date of determination to
be deposited with the Trustee (as defined in the
▇▇▇▇▇▇▇ Holdings Indenture) to effect the "legal
defeasance option" or the "covenant defeasance
option" under the ▇▇▇▇▇▇▇ Holdings Indenture
(assuming a redemption date of July 15, 1996), as
provided for in Sections 8.02(1) and 8.02(2) of the
▇▇▇▇▇▇▇ Holdings Indenture and Section 5 of Exhibit
B to the ▇▇▇▇▇▇▇ Holdings Indenture, plus
(ii) the "Redemption Price" as defined in
Section 5 of Exhibit A to the ▇▇▇▇▇▇▇ Worldwide
Indenture (assuming a redemption date of May 27,
1998) of the aggregate amount of all Debt
outstanding under the ▇▇▇▇▇▇▇ Worldwide Indenture
as of the redemption date.
New World
Guarantor: The Defeased Debt Amount for New World Guarantor
shall be an amount equal to the lesser of (x) the
amount, if on such date of determination NWCG
Holdings is permitted to optionally redeem,
pursuant to the terms of the NWCG Holdings
Indenture, the Debt outstanding thereunder,
that NWCG Holdings would be required to pay to
redeem such Debt and (y) the greater of (A) the
"repurchase price" (assuming a repurchase date
105 days after the date of determination) of the
aggregate amount of all Debt outstanding under the
NWCG
2
Holdings Indenture as of the repurchase date, as
determined pursuant to Section 4.07(a) of the NWCG
Holdings Indenture and (B) the aggregate amount
required as of the date of determination to be
deposited with the Trustee (as defined in the NWCG
Holdings Indenture) to effect the "legal defeasance
option" or the "covenant defeasance option" under
the NWCG Holdings Indenture (assuming a maturity
date of June 15, 1999), as provided for in Sections
8.02(1) and 8.02(2) of the NWCG Holdings Indenture.
Revlon Guarantor: The Defeased Debt Amount for the Revlon Guarantor
shall be an amount equal to the lesser of (x) the
amount, if on such date of determination Revlon
Worldwide is permitted to optionally redeem,
pursuant to the terms of the Revlon Worldwide
Indenture, the Debt outstanding thereunder, that
Revlon Worldwide would be required to pay to redeem
such Debt and (y)the greater of (A) the "purchase
price" (assuming a repurchase date 105 days after
the date of determination) of the aggregate amount
of all Debt outstanding under the Revlon Worldwide
Indenture as of the date of purchase plus accrued
and unpaid interest thereon through the date of
purchase, as determined pursuant to Section 4.09(a)
of the Revlon Worldwide Indenture and (B) the
"redemption price" (assuming a redemption date 60
days after the date of determination) for a "Change
of Control" (as defined in the Revlon Worldwide
Indenture) of the aggregate amount of all Debt
outstanding under the Revlon Worldwide Indenture as
of the redemption date, as determined pursuant to
Section 5 of Exhibit B to the Revlon Worldwide
Indenture.
As used in this Schedule VI, the following terms shall have
the following meanings:
"▇▇▇▇▇▇▇ Worldwide Indenture" means the Indenture, dated as of May
27, 1993, made by ▇▇▇▇▇▇▇ Worldwide in favor of Continental Bank, National
Association as trustee pursuant to which ▇▇▇▇▇▇▇ Worldwide issued its Liquid
Yield Option(TM) Notes due 2013.
"▇▇▇▇▇▇▇ Holdings Indenture" means the Indenture, dated as of July
15, 1993 made by ▇▇▇▇▇▇▇ Holdings in favor of Continental Bank, National
Association as trustee pursuant to which ▇▇▇▇▇▇▇ Holdings issued its Senior
Secured Discount Notes due 1998 and its Series B Senior Secured Discount Notes
due 1998.
"NWCG Holdings Indenture" means the Indenture, dated as of June 30,
1994 made by NWCG Holdings in favor of Nationsbank of Georgia, National
Association as trustee
3
pursuant to which NWCG Holdings issued its Senior Secured Discount Notes due
1999 and will issue its Series B Senior Secured Discount Notes due 1999.
"Revlon Worldwide Indenture" means the Indenture, dated as of March
15, 1993, made by Revlon Worldwide Corporation ("Revlon Worldwide") in favor
of The First National Bank of Boston as trustee pursuant to which Revlon
Worldwide issued its Senior Secured Discount Notes due 1998 and will issue its
Series B Senior Secured Discount Notes due 1998.
Schedule VII
List of Debt for Definition of
Net Cash Proceeds
1. MacAndrews & Forbes Holdings Inc.
13% Subordinated Debentures due March 1, 1999 pursuant to the
Indenture dated as of March 1, 1984 between MacAndrews & Forbes
Holdings Inc. and the United States Trust Company of New York, as
trustee.
2. ▇▇▇▇▇▇▇ Group Incorporated
10% Senior Subordinated Debentures due 1999 pursuant to the Indenture
dated as of June 4, 1990 between ▇▇▇▇▇▇▇ Group Incorporated and First
Trust of California, National Association, as trustee (as successor
trustee to Security Pacific National Trust Company (New York)).
3. Four Star Holdings Corp.
Senior Notes due June 7, 1999 issued by Four Star Holdings Corp. to
former shareholders (▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇) in the aggregate principal amount of $46,154,500.
4. MacAndrews & Forbes Group Inc.
15 5/8% Senior Subordinated Notes due 1997 pursuant to the Indenture
dated October 22, 1982 between MacAndrews & Forbes Group Inc. and
Security Pacific National Bank, as trustee.
5. Revlon Group Incorporated
Redemption of Series B Cumulative Redeemable Exchangeable Preferred
Stock of Revlon Group Incorporated.
EXHIBIT A-1
TO THE FOURTH
AMENDED AND
RESTATED REVOLVING
CREDIT AGREEMENT
FORM OF TRANCHE A REVOLVING CREDIT NOTE
$____________ Dated: December __, 1996
FOR VALUE RECEIVED, the undersigned, MARVEL IV HOLDINGS
INC., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of ___________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Fourth Amended and Restated Revolving Credit
Agreement referred to below) the aggregate principal amount of the Tranche A
Revolving Credit Advances (as defined below) owing to the Lender by the
Borrower pursuant to the Fourth Amended and Restated Revolving Credit
Agreement (as defined below) on the dates and in the amounts specified in the
Fourth Amended and Restated Revolving Credit Agreement, but in no event later
than June 3, 1999.
The Borrower promises to pay interest on the unpaid
principal amount of each Tranche A Revolving Credit Advance from the date of
each Tranche A Revolving Credit Advance until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in
the Fourth Amended and Restated Revolving Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to Citibank, N.A., as Agent, at its offices at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 3685-2248, in same day
funds. Each Tranche A Revolving Credit Advance owing to the Lender by the
Borrower and the maturity thereof, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto, which is part of this Promissory
Note.
This Promissory Note is one of the Tranche A Revolving
Credit Notes referred to in, and is entitled to the benefits of, the Fourth
Amended and Restated Revolving Credit Agreement dated as of December 16, 1996
(such agreement, as it may hereafter be amended or modified, being the "Fourth
Amended and Restated Revolving Credit
2
Agreement") among the Borrower, the Lender, certain other lenders parties
thereto, the initial issuing bank thereunder, Citibank, N.A., as
Administrative Agent, The First National Bank of Boston, as Documentation
Agent, Chase Securities, Inc., as Syndication Agent, Citibank, N.A., as
Collateral Agent and the managing agents party thereto. The Fourth Amended and
Restated Revolving Credit Agreement, among other things, (i) provides for the
making of Tranche A revolving credit advances (the "Tranche A Revolving Credit
Advances") by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the U.S. dollar amount first
above mentioned, the indebtedness of the Borrower resulting from such Tranche
A Revolving Credit Advances being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
MARVEL IV HOLDINGS INC.
By: ____________________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------------------------------------------------
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made by
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EXHIBIT A-2 TO THE
FOURTH AMENDED AND
RESTATED REVOLVING
CREDIT AGREEMENT
FORM OF TRANCHE B REVOLVING CREDIT NOTE
$____________ Dated: December__, 1996
FOR VALUE RECEIVED, the undersigned, MARVEL IV HOLDINGS
INC., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of ___________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Fourth Amended and Restated Revolving Credit
Agreement referred to below) the aggregate principal amount of the Tranche B
Revolving Credit Advances (as defined below) owing to the Lender by the
Borrower pursuant to the Fourth Amended and Restated Revolving Credit
Agreement (as defined below) on the dates and in the amounts specified in the
Fourth Amended and Restated Revolving Credit Agreement, but in no event later
than June 30, 1997.
The Borrower promises to pay interest on the unpaid
principal amount of each Tranche B Revolving Credit Advance from the date of
each Tranche B Revolving Credit Advance until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in
the Fourth Amended and Restated Revolving Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to Citibank, N.A., as Agent, at its offices at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 3685-2248, in same day
funds. Each Tranche B Revolving Credit Advance owing to the Lender by the
Borrower and the maturity thereof, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto, which is part of this Promissory
Note.
This Promissory Note is one of the Tranche B Revolving
Credit Notes referred to in, and is entitled to the benefits of, the Fourth
Amended and Restated Revolving Credit Agreement dated as of December 16, 1996
(such agreement, as it may hereafter be amended or modified, being the "Fourth
Amended and Restated Revolving
2
Credit Agreement") among the Borrower, the Lender, certain other lenders
parties thereto, the initial issuing bank thereunder, Citibank, N.A., as
Administrative Agent, The First National Bank of Boston, as Documentation
Agent, Chase Securities, Inc., as Syndication Agent, Citibank, N.A., as
Collateral Agent and the managing agents party thereto. The Fourth Amended and
Restated Revolving Credit Agreement, among other things, (i) provides for the
making of Tranche B revolving credit advances (the "Tranche B Revolving Credit
Advances") by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the U.S. dollar amount first
above mentioned, the indebtedness of the Borrower resulting from such Tranche
B Revolving Credit Advances being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
MARVEL IV HOLDINGS INC.
By:________________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made by
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EXHIBIT B
TO THE FOURTH AMENDED
AND RESTATED REVOLVING
CREDIT AGREEMENT
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated _________, 199_
Reference is made to the Fourth Amended and Restated
Revolving Credit Agreement dated as of December 16, 1996 (as amended or
otherwise modified from time to time, the "Fourth Amended and Restated
Revolving Credit Agreement") among Marvel IV Holdings Inc., a Delaware
corporation (the "Borrower"), the Lender Parties (as defined in the Fourth
Amended and Restated Revolving Credit Agreement), Citibank, N.A., as
Administrative Agent (the "Administrative Agent"), The First National Bank of
Boston, as Documentation Agent, Chase Securities, Inc., as Syndication Agent,
Citibank, N.A., as Collateral Agent and the managing agents party thereto.
Terms defined in the Fourth Amended and Restated Revolving Credit Agreement
are used herein with the same meaning.
____________ (the "Assignor") and ___________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, an interest
in and to the Assignor's rights and obligations under the Fourth Amended and
Restated Revolving Credit Agreement as of the date hereof equal to the
percentage interest specified on Annex 1 of all outstanding rights and
obligations under the Facility or Facilities specified on Annex 1. After
giving effect to such sale and assignment, the Assignee's Commitment and the
amount of the Advances owing to the Assignee will be as set forth in Annex 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan Party of any of
its obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Note or Notes
2
held by the Assignor and requests that the Administrative Agent exchange such
Note or Notes for a new Note or Notes payable to the order of the Assignee in
an amount equal to the Commitments assumed by the Assignee pursuant hereto or
new Notes payable to the order of the Assignee in an amount equal to the
Commitments assumed by the Assignee pursuant hereto and the Assignor in an
amount equal to the Commitment retained by the Assignor under the Fourth
Amended and Restated Revolving Credit Agreement, respectively, as specified on
Annex 1.
3. The Assignee (i) confirms that it has received a copy of
the Fourth Amended and Restated Revolving Credit Agreement, together with
copies of the financial statements referred to in Section 4.01 thereof and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance;
(ii) agrees that it will, independently and without reliance upon the
Administrative Agent, any other Agent, the Assignor 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 the Fourth Amended and Restated Revolving Credit Agreement; (iii)
confirms that it is an Eligible Assignee; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Fourth Amended and Restated Revolving Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Fourth Amended and Restated Revolving Credit
Agreement are required to be performed by it as a Lender; [and] (vi) specifies
as its Lending Office (and address for notices) the office set forth beneath
its name on the signature pages hereof [and (vii) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying as
to the Assignee's status for purposes of determining exemption from United
States withholding taxes with respect to all payments to be made to the
Assignee under the Fourth Amended and Restated Revolving Credit Agreement or
such other documents as are necessary to indicate that all such payments are
subject to such rates at a rate reduced by an applicable tax treaty].(1)
4. Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee, it will be delivered to the Administrative
Agent for acceptance and recording by the Administrative Agent. The effective
date of this Assignment and Acceptance shall be the date of acceptance thereof
by the Administrative Agent, unless otherwise specified on Annex 1 hereto (the
"Effective Date").
---------------------
1 Include clause (vii) if the Assignee is organized under the laws
of a jurisdiction outside the United States.
3
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the
Fourth Amended and Restated Revolving Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of
a Lender thereunder and (ii) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Fourth Amended and Restated Revolving Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Fourth Amended and Restated Revolving Credit Agreement
and the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Fourth Amended and Restated
Revolving Credit Agreement and the Notes for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Annex 1 to this Assignment and
Acceptance by telecopier shall be as effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the parties hereto have caused Annex 1
to this Assignment and Acceptance to be executed by their respective officers
thereunto duly authorized, as of the date first above written, such execution
being made on Annex 1 hereto.
Annex 1
to
Assignment and Acceptance
Dated , 199
As to each Facility in respect of which an interest is being assigned.
Percentage Interest assigned: _________%
Assignee's Tranche A Revolving Credit
Commitment: $_________
Aggregate outstanding principal
amount of Tranche A Revolving
Credit Advances assigned: $_________
Principal amount of Tranche A Revolving Credit
Note payable to Assignee: $_________
Principal amount of Tranche A Revolving Credit
Note payable to Assignor: $_________
Assignee's Tranche B Revolving
Credit Commitment: _______%
Aggregate outstanding principal amount of
Tranche B Revolving Credit Advances
assigned: $________
Principal amount of Tranche B Revolving
Credit Note payable to Assignee: $________
Principal amount of Tranche B Revolving
Credit Note payable to Assignor: $________
Effective Date**: _________________, 199_
[NAME OF ASSIGNOR, as Assignor]
By: _______________________________
Title:
------------------------
** This date should be no earlier than the date of acceptance by the
Administrative Agent.
2
[NAME OF ASSIGNEE], as Assignee
By: ________________________________
Title:
Lending Office
(and address for notices):
[Address]
Accepted this ___ day of ___________,
199_
CITIBANK, N.A.,
as Administrative Agent
By:________________________
Title:
EXHIBIT C
TO THE FOURTH AMENDED
AND RESTATED REVOLVING
CREDIT AGREEMENT
FORM OF
NOTICE OF BORROWING
Citibank, N.A.
as Administrative Agent for the Lenders parties
to the Fourth Amended and Restated Revolving
Credit Agreement referred to below [Date]
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _____________
Ladies and Gentlemen:
The undersigned, Marvel IV Holdings Inc., refers to the Fourth
Amended and Restated Revolving Credit Agreement dated as of December 16, 1996
(as amended or otherwise modified from time to time, the "Fourth Amended and
Restated Revolving Credit Agreement"; the terms defined therein being used
herein as therein defined), among the undersigned, certain Lender Parties
parties thereto, Citibank, N.A., as Administrative Agent, The First National
Bank of Boston, as Documentation Agent, Chase Securities, Inc., as Syndication
Agent, Citibank, N.A., as Collateral Agent and the managing agents party
thereto and hereby gives you notice, irrevocably, pursuant to Section 2.02 of
the Fourth Amended and Restated Revolving Credit Agreement that the
undersigned hereby requests a Borrowing under the Fourth Amended and Restated
Revolving Credit Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed Borrowing") as required
by Section 2.02(a) of the Fourth Amended and Restated Revolving Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is ____________,
[199_].
(ii) The Facility under which the Proposed Borrowing is to be
made is the Tranche A] [Tranche B] Revolving Credit
Facility.
(iii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is
$__________.
(v) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is _____ month[s].]
2
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in the Loan
Documents are correct in all material respects on and as of the date
of such Proposed Borrowing, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date, except to the extent such
representations and warranties specifically relate to an earlier
date, in which case such representations and warranties were true,
correct and complete in all material respects on and as of such
earlier date; and
(B) no Default has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom.
Very truly yours,
MARVEL IV HOLDINGS INC.
By: ______________________
Title:
1
EXHIBIT I
TO THE FOURTH AMENDED
AND RESTATED REVOLVING
CREDIT AGREEMENT
FORM OF CONFIDENTIALITY LETTER
[BANK LETTERHEAD]
[Date]
Citibank, N.A.
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[Name and address of Bank
selling a participation or
making an assignment under
the Fourth Amended and Restated Revolving Credit Agreement
referred to below]
Dear Sirs:
We understand that Citibank, N.A. ("Citibank") is acting as
Administrative Agent under the Fourth Amended and Restated Revolving Credit
Agreement dated as of December 16, 1996 (as amended or otherwise modified from
time to time, the "Fourth Amended and Restated Revolving Credit Agreement";
terms used herein and not otherwise defined are used as defined therein) among
Marvel IV Holdings Inc. (the "Borrower"), Citibank, as Administrative Agent,
the Initial Issuing Bank, the banks and financial institutions and other
institutional lenders party thereto (the "Lender Parties"), The First National
Bank of Boston, as Documentation Agent, Chase Securities, Inc., as Syndication
Agent, Citibank, as Collateral Agent and the managing agents party thereto. In
connection with our evaluation of a proposed purchase of a participation in,
or acceptance of an assignment of, a portion of the Advances and Commitments,
Citibank and/or a Lender or an affiliate of Citibank or a Lender have
furnished, and will furnish, us with a copy of the Fourth Amended and Restated
Revolving Credit Agreement and non-public information concerning the Borrower
and the Bank (all such non-public information, whether furnished before or
after the date of this letter, and including, without limitation, the
financial model referred to below, collectively the "Transaction
Information").
2
We agree to keep confidential (and to cause our officers, directors,
employees, agents and representatives to keep confidential) all Transaction
Information and, in the event we do not participate or accept an assignment
under the Fourth Amended and Restated Revolving Credit Agreement, at
Citibank's, such Lender's or the Borrower's request, to return (and to cause
such other person to return) to Citibank, such Lender or the Borrower, as the
case may be, all written Transaction Information and all copies thereof,
extracts therefrom and analyses and other materials based thereon, except that
we shall be permitted to disclose details of the Transaction Information (i)
to such of our officers, directors, employees, agents and representatives
(which agents and representatives shall not include any financial
institutions) and legal or other advisors who need to know such information in
connection with our evaluation of a possible participation in, or possible
acceptance of an assignment of, Advances and Commitment thereunder and who
agree to be bound by the restrictions set forth herein; (ii) to the extent
required by applicable laws and regulations or by any subpoena or similar
legal process (provided that we will promptly notify the Borrower of such
requirement as far in advance of its disclosure as is practicable to enable
the Borrower to seek a protective order and, to the extent practicable, we
will cooperate with the Borrower in seeking any such order), or requested by
any governmental agency or authority having jurisdiction over us (provided
that we will first inform the Borrower of any such request other than those
from bank regulatory authorities or examiners and, in either case, we will
inform any such agency or authority that such information is subject to this
letter agreement); (iii) to the extent Citibank and the Borrower shall have
consented to such disclosure in writing; and (iv) to the extent that a public
announcement or dissemination of such Transaction Information shall have been
made other than as a result of a breach of this Confidentiality Letter.
We further agree that we will use the Transaction Information only in
connection with our evaluation of becoming a possible participant or Eligible
Assignee under the Fourth Amended and Restated Revolving Credit Agreement.
The undertakings contained herein are for your benefit and the
benefit of the Borrower.
Upon its receipt of this confidentiality letter signed by us, we
understand that Citibank or a Lender may forward to us a financial model for
the periods through 1999 pertaining to the Borrower and the Bank. Such
information will subsequently form part of the Transaction Information for all
purposes hereunder.
We understand that the financial model was prepared in good faith by
Mafco's management based on assumptions believed to be reasonable when made.
However, because assumptions as to future results are inherently subject to
uncertainty and contingencies
3
beyond Mafco's control, actual results of the Borrower and the Bank may be
higher or lower.
[Name of Lender]
By: __________________________
Title:
$350,000,000
TERM CREDIT AGREEMENT
Dated as of December 16, 1996
Among
MARVEL IV HOLDINGS INC.,
(to be renamed MAFCO FINANCE CORP.)
as Borrower,
THE FINANCIAL INSTITUTIONS AND
THE INITIAL ISSUING BANK NAMED HEREIN,
as Financial Institutions and
Initial Issuing Bank,
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent ,
NATIONSBANC CAPITAL MARKETS, INC.,
as Documentation Agent,
CREDIT SUISSE,
as Syndication Agent,
and
BANK OF AMERICA ILLINOIS,
ING (U.S.) CAPITAL CORPORATION,
SALOMON BROTHERS HOLDING COMPANY INC,
THE BANK OF NEW YORK,
THE FUJI BANK, LIMITED,
as Managing Agents
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...................................... 2
SECTION 1.02. Computation of Time Periods................................ 35
SECTION 1.03. Accounting Terms........................................... 36
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances............................................... 36
SECTION 2.02. Making the Advances........................................ 36
SECTION 2.03. Repayment.................................................. 38
SECTION 2.04. Optional Termination or Reduction of the Commitments....... 38
SECTION 2.05. Prepayments................................................ 38
SECTION 2.06. Interest................................................... 43
SECTION 2.07. Interest Rate Determination................................ 44
SECTION 2.08. Fees ................................................... 45
SECTION 2.09. Increased Costs; Illegality................................ 45
SECTION 2.10. Conversion of Advances..................................... 47
SECTION 2.11. Payments and Computations.................................. 48
SECTION 2.12. Taxes ................................................... 49
SECTION 2.13. Sharing of Payments, Etc................................... 52
SECTION 2.14. Removal of Lender.......................................... 52
SECTION 2.15. Defaulting Lender.......................................... 53
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date..................... 56
SECTION 3.02. Conditions Precedent to the Tranche A Term Borrowing. ..... 63
SECTION 3.03. Conditions Precedent to the Tranche B Term Borrowings...... 64
SECTION 3.04. Conditions Precedent to Each Borrowing..................... 65
SECTION 3.05. Determinations Under Section 3.01.......................... 65
ARTICLE IV
ii
Page
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower............. 66
SECTION 4.02. Representations and Warranties Applicable to Marvel........ 70
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants...................................... 71
(a) Compliance with Laws, Etc............................ 71
(b) Compliance with Environmental Laws................... 71
(c) Maintenance of Insurance............................. 71
(d) Preservation of Corporate Existence, Etc............. 71
(e) Visitation Rights.................................... 72
(f) Keeping of Books..................................... 72
(g) Maintenance of Properties, Etc....................... 72
(h) Termination of Financing Statements.................. 72
(i) Collateral Account................................... 72
(j) Reporting Requirements............................... 72
(k) Look-Forward Certificate............................. 76
(l) Transactions with Affiliates......................... 77
(m) Mafco Tax Group...................................... 77
(n) Net Cash Proceeds.................................... 77
SECTION 5.02. Negative Covenants......................................... 77
(a) Liens, Etc........................................... 77
(b) Lease Obligations.................................... 78
(c) Mergers, Etc......................................... 78
(d) Sales, Etc. of Assets................................ 78
(e) Dividends, Repurchases, Etc.......................... 78
(f) Investments.......................................... 79
(g) Change in Nature of Business......................... 79
(h) Accounting Changes................................... 79
(i) Debt................................................. 79
(j) Charter Amendments................................... 79
(k) Prepayments, Etc. of Debt............................ 80
(l) Negative Pledge...................................... 80
(m) Partnerships......................................... 80
(n) Capital Expenditures................................. 80
(o) Issuance of Capital Stock............................ 80
(p) Payment Restrictions................................. 80
iii
Page
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................... 81
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 7.01. Authorization and Action.................................... 86
SECTION 7.02. Administrative Agent's and Collateral Agent's Reliance, Etc. 87
SECTION 7.03. Citibank and Affiliates..................................... 87
SECTION 7.04. Lender Credit Decision...................................... 88
SECTION 7.05. Indemnification............................................. 88
SECTION 7.06. Successor Administrative Agent and Collateral Agent......... 89
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc............................................. 90
SECTION 8.02. Notices, Etc................................................ 91
SECTION 8.03. No Waiver; Remedies......................................... 91
SECTION 8.04. Costs; Expenses............................................. 91
SECTION 8.05. Right of Set-off............................................ 93
SECTION 8.06. Binding Effect.............................................. 93
SECTION 8.07. Assignments and Participations.............................. 93
SECTION 8.08. Governing Law; Submission to Jurisdiction................... 96
SECTION 8.09. Execution in Counterparts................................... 97
SECTION 8.10. WAIVER OF JURY TRIAL........................................ 97
iv
Schedule I - List of Existing Advances, Advances, Commitments and Lending
Offices
Schedule II - Borrower Information
Schedule III - List of Existing Debt
Schedule IV - List of Investments
Schedule V - List of Existing Liens
Schedule VI - Calculation of Defeased Debt Amount
Schedule VII - List of Debt for the Definition of Net Cash Proceeds
Exhibit A-1 - Form of Tranche A Revolving Credit Note
Exhibit A-2 - Form of Tranche B Revolving Credit Note
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Notice of Borrowing
Exhibit D-1 - Form of Mafco Security Agreement
Exhibit D-2 - Form of Borrower Security Agreement
Exhibit D-3 - Form of Borrower Parent Security Agreement
Exhibit E-1 - Form of Mafco Guaranty
Exhibit E-2 - Form of Borrower Parent Guaranty
Exhibit E-3 - Form of C&F Guaranty
Exhibit E-4 - Form of Cigar Guaranty
Exhibit E-5 - Form of Coleman Guaranty
Exhibit E-6 - Form of Flavors Guaranty
Exhibit E-7 - Form of New World Guaranty
Exhibit E-8 - Form of Revlon Guaranty
v
Exhibit F-1 - Form of C&F Pledge Agreement
Exhibit F-2 - Form of Cigar Pledge Agreement
Exhibit F-3 - Form of Coleman Pledge Agreement
Exhibit F-4 - Form of ▇▇▇▇▇▇▇ Worldwide Pledge Agreement
Exhibit F-5 - Form of Flavors Pledge Agreement
Exhibit F-6 - Form of Four Star Pledge Agreement
Exhibit F-7 - Form of Mafco Pledge Agreement
Exhibit F-8 - Form of M&F Pledge Agreement
Exhibit F-9 - Form of New Coleman Pledge Agreement
Exhibit F-10 - Form of New World Pledge Agreement
Exhibit F-11 - Form of Second ▇▇▇▇▇▇▇ Pledge Agreement
Exhibit F-12 - Form of Revlon Pledge Agreement
Exhibit G - Form of Equity Contribution Agreement
Exhibit H - Form of First Gibraltar Loan Agreement
Exhibit I - Form of Confidentiality Letter
TERM CREDIT AGREEMENT
TERM CREDIT AGREEMENT dated as of December 16, 1996 among MARVEL IV
HOLDINGS INC. (to be renamed MAFCO FINANCE CORP.), a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "Financial Institutions") listed on the signature pages hereof, CITIBANK,
N.A. ("Citibank"), as administrative agent (together with any successor
appointed pursuant to Article VII, the "Administrative Agent") for the Lenders
(as hereinafter defined) hereunder, NATIONSBANC CAPITAL MARKETS, INC., as
documentation agent (the "Documentation Agent") for the Lenders hereunder,
CREDIT SUISSE, as syndication agent (the "Syndication Agent") for the Lenders
hereunder, BANK OF AMERICA ILLINOIS, ING (U.S.) CAPITAL CORPORATION, SALOMON
BROTHERS HOLDING COMPANY INC, THE BANK OF NEW YORK and THE FUJI BANK, LIMITED,
as managing agents (the "Managing Agents"; together with the Administrative
Agent, the Documentation Agent and the Syndication Agent, the "Agents") for the
Lenders hereunder and Citibank, as collateral agent (together with any
successor appointed pursuant to Article VII, the "Collateral Agent") for the
Lenders hereunder and the Revolving Credit Agreement Lenders (as hereinafter
defined).
PRELIMINARY STATEMENTS
(1) Mafco Holdings Inc., a Delaware corporation and an indirect parent
corporation of the Borrower ("Mafco") intends to acquire, directly or
indirectly through Subsidiaries, newly issued equity in Marvel Entertainment
Group, Inc., a Delaware corporation and an indirect Subsidiary (as hereinafter
defined) of the Borrower ("Marvel").
(2) The Borrower has requested that the Financial Institutions lend to
it up to $350,000,000 which will be used to finance a series of related and
simultaneous transactions which will result in (x) the acquisition by Mafco,
directly or indirectly, of such newly issued equity in Marvel and (y) Toy Biz
Inc., a Delaware corporation ("Toy Biz"), becoming a wholly-owned Subsidiary of
Marvel. A portion of proceeds of the Borrowings hereunder may also be used to
provide working capital to Marvel.
(3) The Financial Institutions hereunder have indicated their
willingness to agree to lend such amounts on the terms and conditions of this
Agreement.
(4) Concurrently with entering into this Agreement, the Borrower is
entering into a Fourth Amended and Restated Revolving Credit Agreement dated as
of the date hereof (as it may hereafter be amended or otherwise modified from
time to time, the "Revolving Credit Agreement") with the banks, financial
institutions and other institutional lenders party thereto (the "Revolving
Credit Agreement Lenders"), Citibank, as initial issuing bank, Citibank, as
administrative agent (in such capacity, the "Revolving Administrative Agent"),
The First National Bank of Boston as documentation agent (in such
2
capacity, the "Revolving Documentation Agent"), Chase Securities, Inc., as
syndication agent (in such capacity, the "Revolving Syndication Agent"), the
managing agents party thereto (the "Revolving Managing Agents"); together with
the Revolving Administrative Agent, the Revolving Documentation Agent and the
Revolving Syndication Agent, the "Revolving Agents") and the Collateral Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Company" means (i) each Loan Party, FN Parent, FN Holdings, ▇▇▇▇▇▇▇
Holdings Inc., ▇▇▇▇▇▇▇ Worldwide and NWCG Holdings and (ii) on and after the
Revlon Inclusion Date, National Health Care Group Inc., Revlon Holdings Inc.
and Revlon Worldwide Corporation; provided, however, that on and after (i) the
consummation of the New World Acquisition, NWCG Holdings shall no longer be an
"A Company" and (ii) the date of sale, monetization or other disposal by Mafco
or any of its Subsidiaries of all of the News Corp. Preferred ADRs, New World
Guarantor shall no longer be an "A Company".
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No.3685-2248.
"Advance" means a Tranche A Term Advance or a Tranche B Term Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct
or indirect, of the power to vote 5% or more of the Voting Stock of such Person
or to direct or cause direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
3
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ Group Incorporated, a Delaware corporation.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means, at any time, 2.50% per annum for Base Rate
Advances and 4.50% per annum for Eurodollar Rate Advances.
"Asset Sale" means the sale, lease, transfer or other disposition
(collectively, a "disposition") of assets of Mafco or any of its Subsidiaries
other than a disposition of any of the following:
(i) all or any portion of the capital stock of Laboratory
Corporation of America Holdings, or Meridian Sports Incorporated,
(ii) all or any portion of the capital stock or assets of the
Bank or any of its Subsidiaries,
(iii) all or any portion of the real property located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ in connection with the New
World Acquisition,
(iv) from and after the later to occur of (A) the Tranche B
Termination Date and (B) the Term Credit Agreement Termination Date,
all or any portion of the capital stock or assets of Marvel III
Holdings Inc., Marvel (Parent) Holdings Inc., Marvel Holdings Inc. and
Marvel (or any of its Subsidiaries), and
(v) any asset of Ropa Two Corporation so long as the Net Cash
Proceeds from any disposition of an asset of Ropa Two Corporation
shall be reinvested, within twelve months following the date of such
disposition, in the business of Ropa Two Corporation or any of its
Subsidiaries;
provided, however, that
(a) a disposition of assets of (x) a Designated Operating Company
or any of its Subsidiaries, (y) Meridian Sports Incorporated or any of
its Subsidiaries or (z) Marvel or any of its Subsidiaries prior to and
following the Marvel Inclusion Period shall, in each case, only be
considered an Asset Sale
4
for purposes of this Agreement to the extent, and only to the extent,
that all or a portion of the proceeds of such disposition are received
by any of Mafco or any of its Subsidiaries (other than (i) a
Designated Operating Company or any of its Subsidiaries, (ii) Meridian
Sports Incorporated or any of its Subsidiaries or (iii) Marvel or any
of its Subsidiaries prior to and following the Marvel Inclusion
Period, as the case may be) through a dividend, distribution, loan,
advance or other similar payment,
(b) subject to the other clauses of this proviso, so long as the
Revlon Holdings Statement is true and correct both before and after
giving effect to such disposition, a disposition of assets of Revlon
Holdings Inc. or any of its Subsidiaries shall only be considered an
Asset Sale for purposes of this Agreement to the extent, and only to
the extent, that all or a portion of the proceeds of such disposition
are received by any of Mafco or any of its Subsidiaries (other than
Revlon Holdings Inc. or any of its Subsidiaries) through a dividend,
distribution, loan, advance or other similar payment,
(c) notwithstanding clause (b) of this proviso, a disposition of
all or any portion of the capital stock of Revlon Worldwide
Corporation, National Health Care Group, Inc. or ▇▇▇▇▇▇▇ of the Ritz
Group Ltd. (but in the case of ▇▇▇▇▇▇▇ of the Ritz Group Ltd., only if
it owns any of the capital stock of Revlon Worldwide Corporation at
the time of such disposition) shall be considered an Asset Sale for
purposes of this Agreement,
(d) notwithstanding clause (b) of this proviso, a disposition of
any asset (other than assets specifically excluded from this
definition of "Asset Sale") of National Health Care Group, Inc. or any
of its Subsidiaries (other than (i) prior to the Revlon Inclusion
Date, Revlon Worldwide and its Subsidiaries and (ii) from and after
the Revlon Inclusion Date, Revlon and its Subsidiaries) shall be
considered an Asset Sale for purposes of this Agreement, and
(e) notwithstanding clause (b) of this proviso, prior to the
Revlon Inclusion Date, a disposition of assets by Revlon Worldwide or
any of its Subsidiaries shall not be considered an Asset Sale for
purposes of this Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee of such Lender, and accepted by the
Administrative Agent, in substantially the form of Exhibit B hereto.
5
"Bank" means First Nationwide Bank, A Federal Savings Bank, and any
successor thereto, including the surviving bank of the merger of the Bank with
and into California Federal.
"Bank Preferred Stock Document" means the Federal Stock Charter of
First Madison Bank, FSB, as supplemented by the First Supplementary Section to
Section 5 of the Charter of First Gibraltar Bank, FSB and the Second
Supplemental Section to Section 5 of the Charter of First Madison Bank, FSB.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the highest
of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor thereto) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period of
the annual assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor thereto) for insuring
U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(i).
6
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrower Collateral Account" has the meaning specified in the
Borrower Security Agreement.
"Borrower Parent" means Marvel V Holdings Inc., a Delaware
corporation.
"Borrower Parent Guaranty" means the Third Amended and Restated
Guaranty dated as of December 16, 1996 made by the Borrower Parent in favor of
the Lenders, the Revolving Credit Agreement Lenders, the Agents, the Revolving
Agents and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"Borrower Parent Security Agreement" means the Amended and Restated
Security Agreement dated as of December 16, 1996 made by the Borrower Parent
and The Bank of New York, in its capacity as voting trustee, to the Collateral
Agent, as such agreement may be amended or otherwise modified from time to time
in accordance with its terms.
"Borrower Security Agreement" means the Fourth Amended and Restated
Borrower Security Agreement dated as of December 16, 1996 made by the Borrower
to the Collateral Agent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
"Borrower's Account" means the account of the Borrower maintained by
the Borrower with Citibank, N.A., at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇.
"Borrowing" means a Tranche A Term Borrowing or a Tranche B Term
Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market and banks are open for business in London.
"C&F Guarantor" means Mafco Consolidated Holdings Inc., a Delaware
corporation (formerly known as C&F (Parent) Holdings Inc.).
"C&F Guaranty" means the Second Amended and Restated Guaranty dated as
of December 16, 1996 made by C&F Guarantor in favor of the Lenders, the
Revolving
7
Credit Agreement Lenders, the Agents, the Revolving Agents and the Collateral
Agent, as such guaranty may be amended or otherwise modified from time to time
in accordance with its terms.
"C&F Pledge Agreement" means the Amended and Restated Pledge Agreement
dated as of December 16, 1996 made by C&F Guarantor to the Collateral Agent, as
such agreement may be amended or otherwise modified from time to time in
accordance with its terms.
"Calculation Period" means, for any date in respect of any common
stock, the immediately preceding five Business Days during which such common
stock traded on the relevant national stock exchange or the Nasdaq national
market system.
"California Federal" means California Federal Bank, A Federal Savings
Bank.
"Capital Expenditures" means, for any period, the sum of (a) all
expenditures during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have a useful life of more than one year plus (b) the aggregate
principal amount of all Debt (including obligations under Capitalized Leases)
assumed or incurred in connection with any such expenditures.
"Capitalized Leases" has the meaning specified in clause (e) of the
definition of "Debt".
"Cash Equivalents" means any of the following, to the extent owned by
the Borrower or its Subsidiaries free and clear of all Liens and having a
maturity not greater than 180 days from the date of issuance thereof: (a)
direct obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender or a member of the Federal Reserve System, issues (or the parent of
which issues) commercial paper rated as described in clause (c), is organized
under the laws of the United States or any State thereof and has combined
capital and surplus of at least $1,000,000,000, (c) commercial paper in an
aggregate amount of not more than $10,000,000 per issuer outstanding at any
time, issued by any corporation organized under the laws of any State of the
United States and rated at least "Prime-1" (or the then equivalent grade) by
▇▇▇▇▇'▇ Investors Services, Inc. or "A-1" (or the then equivalent grade) by
Standard & Poor's Ratings Group or (d) shares of money market mutual or similar
funds having assets in excess of $100,000,000 and which invest exclusively in
assets satisfying the requirements of clauses (a) through (c) of this
definition.
8
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980.
"Cigar Guarantor" means Consolidated Cigar II Holdings Inc., a
Delaware corporation.
"Cigar Guaranty" means the Third Amended and Restated Cigar Guaranty
dated as of December 16, 1996 made by Cigar Guarantor in favor of the Lenders,
the Revolving Credit Agreement Lenders, the Agents, the Revolving Agents and
the Collateral Agent, as such guaranty may be amended or otherwise modified
from time to time in accordance with its terms.
"Cigar Non-Operating Subsidiary" means C&F Guarantor.
"Cigar Pledge Agreement" means the Second Amended and Restated Cigar
Pledge Agreement dated as of December 16, 1996 made by Cigar Guarantor and The
Bank of New York, in its capacity as voting trustee, to the Collateral Agent,
as such agreement may be amended or otherwise modified from time to time in
accordance with its terms.
"Citibank" has the meaning specified in the recital of parties to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.
"Coleman" means The ▇▇▇▇▇▇▇ Company, Inc., a Delaware corporation.
"Coleman Guarantor" means Coleman (Parent) Holdings Inc., a Delaware
corporation.
"Coleman Guaranty" means the Third Amended and Restated Coleman
Guaranty dated as of December 16, 1996 made by Coleman Guarantor in favor of
the Lenders, the Revolving Credit Agreement Lenders, the Agents, the Revolving
Agents and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"▇▇▇▇▇▇▇ Holdings" means ▇▇▇▇▇▇▇ Holdings Inc., a Delaware
corporation.
"Coleman Non-Operating Subsidiaries" means ▇▇▇▇▇▇▇ Holdings and
▇▇▇▇▇▇▇ Worldwide.
9
"Coleman Pledge Agreement" means the Second Amended and Restated
Pledge Agreement dated as of December 16, 1996 made by Coleman Guarantor to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Coleman Tax Agreements" means (i) the Tax Allocation Agreement dated
as of August 24, 1990, as amended through the date hereof, between Mafco and
New Coleman, (ii) the Tax Sharing Agreement dated as of February 26, 1992, as
amended through the date hereof, among Mafco, Coleman Finance Holdings Inc.,
Coleman and the Subsidiaries of Coleman party thereto, (iii) the Tax Sharing
Agreement dated as of February 26, 1992, as amended through the date hereof,
among Mafco, New ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Finance Holdings Inc. and the Subsidiaries of
Coleman Finance Holdings Inc. party thereto, (iv) the Tax Equivalent Payment
Agreement dated as of March 4, 1992, as amended through the date hereof,
between Mafco and Coleman Finance Holdings Inc., (v) the Supplemental Tax
Sharing Agreement dated as of February 26, 1992, as amended through the date
hereof, between ▇▇▇▇▇▇▇ and M&F, (vi) the Tax Sharing Agreement dated as of May
27, 1993 among Mafco, ▇▇▇▇▇▇▇ Worldwide, ▇▇▇▇▇▇▇ and its Subsidiaries party
thereto, (vii) the Tax Sharing Agreement dated as of May 27, 1993 among Mafco,
▇▇▇▇▇▇▇ Worldwide and the other Persons party thereto, (viii) the Tax Sharing
Agreement dated as of July 22, 1993 between Mafco and ▇▇▇▇▇▇▇ Holdings, and
(ix) the Tax Sharing Termination Agreement dated as of May 27, 1993 among
Mafco, New ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and the other Persons party thereto.
"▇▇▇▇▇▇▇ Worldwide" means ▇▇▇▇▇▇▇ Worldwide Corporation, a Delaware
corporation.
"▇▇▇▇▇▇▇ Worldwide Indenture" has the meaning specified in Schedule
VI.
"▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇" means the Liquid Yield Option Notes Due 2013
issued by ▇▇▇▇▇▇▇ Worldwide.
"▇▇▇▇▇▇▇ Worldwide Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by ▇▇▇▇▇▇▇ Worldwide to the Collateral Agent, as such agreement may be amended
or otherwise modified from time to time in accordance with its terms.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Collateral Agent, the Lenders, the Revolving Credit
Agreement Lenders, the Agents and the Revolving Agents.
10
"Collateral Accounts" means the Borrower Collateral Account, the Mafco
Collateral Account, the Second Mafco Collateral Account and the L/C Cash
Collateral Account.
"Collateral Agent" has the meaning specified in the recital of the
parties hereto. "Collateral Documents" means each Security Agreement and each
Pledge Agreement.
"Commitment" means a Tranche A Term Commitment or a Tranche B Term
Commitment.
"Consolidated" for any Person refers to the consolidation of the
financial statements of such Person and its Subsidiaries in accordance with
GAAP.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.10.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money; (b) all Obligations of such Person for the
deferred purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such Person's
business); (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments; (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired 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); (e) all Obligations of
such Person as lessee under leases that have been or should be, in accordance
with GAAP, recorded as capital leases ("Capitalized Leases"); (f) all
Obligations, contingent or otherwise, of such Person under acceptance, letter
of credit or similar facilities; (g) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise acquire for value any capital
stock of such Person or any warrants, rights or options to acquire such capital
stock; (h) all Obligations of such Person in respect of Hedge Agreements; (i)
all Debt of others referred to in clauses (a) through (h) above guaranteed
directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay or
purchase such Debt or to advance or supply funds for the payment or purchase of
such Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (iv) otherwise to assure
a creditor against loss; and (j) all Debt referred to in clauses (a) through
(i) above secured by (or for which the holder of
11
such Debt has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become liable
for the payment of such Debt. For all purposes of this Agreement and the other
Loan Documents, "Debt" shall not include Obligations of any Designated
Operating Company, Revlon, Marvel or any of their respective Subsidiaries in
respect of Hedge Agreements.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any time, the
amount of any Advance required to be made by such Lender to the Borrower
pursuant to Section 2.01 at or prior to such time which has not been so made as
of such time; provided, however, that any Advance made by the Administrative
Agent for the account of such Lender pursuant to Section 2.02(c) shall not be
considered a Defaulted Advance even if, at such time, such Lender shall not
have reimbursed the Administrative Agent therefor as provided in Section
2.02(c). In the event that a portion of a Defaulted Advance shall be deemed
made pursuant to Section 2.15(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to be made
pursuant to Section 2.01 on the same date as the Defaulted Advance so deemed
made in part.
"Defaulted Amount" means, with respect to any Lender at any time, any
amount required to be paid by such Lender to the Administrative Agent, the
Collateral Agent or any other Lender hereunder or under any other Loan Document
at or prior to such time which has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender to (a) the
Administrative Agent pursuant to Section 2.02(c) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Lender, (b) any other Lender pursuant to Section
2.13 to purchase any interest or participating interest in Advances owing to
such other Lender and (c) the Administrative Agent or the Collateral Agent
pursuant to Section 7.05 to reimburse the Administrative Agent or the
Collateral Agent, as the case may be, for such Lender's ratable share of any
amount required to be paid by the Lenders to the Administrative Agent or the
Collateral Agent as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be made hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender that, at such time,
(a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take or be the
subject of any action or proceeding of a type described in Section 6.01(e).
12
"Defeased Debt Amount" means for any date of determination for any
Designated Person listed on Schedule VI an amount calculated in the manner set
forth on Schedule VI for such Designated Person or such other amount as may be
agreed by the Administrative Agent and the Borrower.
"Deposit Certificate" has the meaning specified in Section 5.01(k).
"Designated ▇▇▇▇▇▇▇ Subsidiaries" means ▇▇▇▇▇▇▇ Holdings, ▇▇▇▇▇▇▇
Worldwide and ▇▇▇▇▇▇▇.
"Designated New World Subsidiaries" means New World Guarantor, NWCG
Holdings and New World; provided, however, that (i) on and after the date of
the sale, monetization or other disposal by Mafco or any of its Subsidiaries of
all of the News Corp. Preferred ADRs, New World Guarantor shall no longer be a
"Designated New World Subsidiary" and (ii) on and after the consummation of the
New World Acquisition, each of NWCG Holdings and New World shall no longer be a
"Designated New World Subsidiary".
"Designated Operating Companies" means (i) ▇▇▇▇▇▇▇, New World and MCG,
(ii) on and after the Revlon Inclusion Date, Revlon and (iii) solely during the
Marvel Inclusion Period, Marvel; provided, however, that on and after the
consummation of the New World Acquisition, New World shall no longer be a
"Designated Operating Company".
"Designated Persons" means ▇▇▇▇▇▇▇ Guarantor, New World Guarantor, C&F
Guarantor and, on and after the Revlon Inclusion Date, Revlon Guarantor;
provided, however, that on and after the date of the sale, monetization or
other disposal by Mafco or any of its Subsidiaries of all of the News Corp.
Preferred ADRs, New World Guarantor shall no longer be a "Designated Person".
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Dollars" and the sign "$" each mean lawful money of the United
States.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender, as the case may be, or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the
Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
13
"Eligible Assignee" means (a) any commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $1,000,000,000; (b) any savings and loan association or savings bank
organized under the laws of the United States, or any State thereof, and having
a net worth determined in accordance with GAAP in excess of $500,000,000; (c)
any commercial bank organized under the laws of any other country that is a
member of the Organization for Economic Cooperation and Development ("OECD") or
has concluded special lending arrangements with the International Monetary Fund
Associated with its General Arrangements to Borrow, or a political subdivision
of any such country, and having total assets in excess of $1,000,000,000, so
long as such bank is acting through a branch or agency located in the United
States, in the Cayman Islands or in the country in which it is organized or
another country that is described in this clause (c); (d) the central bank of
any country that is a member of the OECD; (e) any finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that (i) is not affiliated with the
Borrower, (ii) is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and (iii) has total
assets in excess of $500,000,000; and (f) any other Person (other than an
Affiliate of the Borrower) approved by the Administrative Agent and the
Borrower, such approval not to be unreasonably withheld.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of non-compliance
or violation, investigation, proceeding, consent order or consent agreement
based upon or arising out of any Environmental Law or any Environmental Permit,
including without limitation (a) any claim by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any Environmental Law and (b) any claim by any
third party seeking damages, contribution, or injunctive relief arising from
alleged injury or threat of injury to health, safety or the environment.
"Environmental Law" means any federal, state or local law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
relating to the environment, health or safety including, without limitation,
CERCLA, the Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the
Clean Air Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal
Insecticide, Fungicide and Rodenticide Act and the Occupational Safety and
Health Act.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"Equity Contribution Agreement" means the Amended and Restated Equity
Contribution Agreement dated as of December 16, 1996, between the Borrower and
the
14
Borrower Parent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled group, or
under common control with such Person, within the meaning of Section 414 of the
Code.
"ERISA Event" with respect to any Person means (a) the occurrence of a
reportable event, within the meaning of Section 4043 of ERISA, with respect to
any Plan of such Person or any of its ERISA Affiliates unless the 30-day notice
requirement with respect to such event has been waived by the PBGC; (b) the
provision by the administrator of any Plan of such Person or any of its ERISA
Affiliates of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (c) the cessation of operations at a
facility of such Person or any of its ERISA Affiliates in the circumstances
described in Section 4062(e) of ERISA; (d) the withdrawal by such Person or any
of its ERISA Affiliates from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(e) the failure by such Person or any of its ERISA Affiliates to make a payment
to a Plan described in Section 302(f)(1) of ERISA; (f) the adoption of an
amendment to a Plan of such Person or any of its ERISA Affiliates requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA; or (g)
the institution by the PBGC of proceedings to terminate a Plan of such Person
or any of its ERISA Affiliates, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that
would constitute grounds for the termination of, or the appointment of a
trustee to administer, such Plan; provided, however, that an event described in
clause (a), (c) or (d) of this definition, or in clause (b) of this definition
solely with respect to a standard termination under Section 4041(b) of ERISA,
shall be an ERISA Event only if such event is reasonably likely to result in a
material liability of such Person or any of its ERISA Affiliates.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent.
15
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in U.S. dollars
are offered by the principal office of Citibank in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period. The Eurodollar Rate for each
Interest Period shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent from
Citibank two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.06.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
Period for any Advance means the reserve percentage applicable during such
Interest Period (or if more than one such percentage shall be so applicable,
the daily average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under regulations
issued from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agreement" means the Exchange Agreement dated as of October
3, 1994 among FN Parent, FN Holdings and ▇▇▇▇▇▇ ▇. ▇▇▇▇.
"Existing Credit Agreement" has the meaning given such term under the
Revolving Credit Agreement.
"Facility" means the Tranche A Term Facility or the Tranche B Term
Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day,
16
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
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"FG Guarantor" means First Gibraltar Guarantor Corp., a Delaware
corporation.
"Financial Institutions" has the meaning specified in the recital of
parties to this Agreement.
"First Gibraltar" means First Gibraltar Holdings Inc., a Delaware
corporation.
"First Gibraltar Charter Document" means the restated certificate of
incorporation of First Gibraltar.
"First Gibraltar Credit Agreement" means the $150,000,000 Credit
Agreement dated as of September 27, 1996 among First Gibraltar, FG Guarantor,
the banks and other financial institutions party thereto, NationsBank, N.A., as
administrative agent, NationsBanc Capital Markets, Inc., as syndication agent
and Citibank, as documentation agent, as the same may be amended, modified or
otherwise supplemented from time to time.
"First Gibraltar Loan Agreement" means the Amended and Restated Loan
Agreement dated as of December 16, 1996 between the Borrower Parent and First
Gibraltar, as amended or otherwise modified from time to time in accordance
with its terms.
"Flavors Guarantor" means Flavors (Parent) Holdings Inc., a Delaware
corporation.
"Flavors Guaranty" means the Third Amended and Restated Flavors
Guaranty dated as of December 16, 1996 made by Flavors Guarantor in favor of
the Lenders, the Revolving Credit Agreement Lenders, the Agents, the Revolving
Agents and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"Flavors Non-Operating Subsidiary" means C&F Guarantor.
"Flavors Pledge Agreement" means the Second Amended and Restated
Flavors Pledge Agreement dated as of December 16, 1996 made by Flavors
Guarantor and The Bank of New York, in its capacity as voting trustee, to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
17
"FN Documents" means the FN Holdings Debt Document, the FN Holdings
New Debt Document, the Second New FN Holdings Debt Document, the FN Parent Debt
Document, the Exchange Agreement and the Stockholders Agreement.
"FN Escrow" means First Nationwide Escrow Corp., a Delaware
corporation.
"FN Holdings" means First Nationwide Holdings Inc., a Delaware
corporation.
"FN Holdings Debt" means the 12-1/4% Senior Notes due 2001 issued by
FN Holdings in an aggregate principal amount equal to $200,000,000.
"FN Holdings Debt Document" means the Indenture dated as of July 15,
1994 made by FN Holdings in favor of The First National Bank of Boston, as
trustee, in connection with the FN Holdings Debt and any other agreement or
instrument which governs the terms of the FN Holdings Debt.
"FN Holdings New Debt" means the 9-1/8% Senior Subordinated Notes Due
2003 issued by FN Holdings in an aggregate principal amount equal to
$140,000,000.
"FN Holdings New Debt Document" means the Indenture dated as of
January 31, 1996 made by FN Holdings in favor of The Bank of New York, as
trustee, in connection with the FN Holdings New Debt and any other agreement or
instrument which governs the terms of the FN Holdings New Debt.
"FN Holdings Preferred Stock" means the $150,000,000 liquidation value
of Cumulative Perpetual Preferred Stock issued by FN Holdings and any shares of
Cumulative Perpetual Preferred Stock to be issued in lieu of cash dividends
payable on the FN Holdings Preferred Stock.
"FN Management Incentive Plan" means the Management Incentive Plan for
Certain Employees of the Bank established by FN Holdings to provide long-term
incentives to certain key executives of the Bank.
"FN Parent" means First Nationwide (Parent) Holdings Inc., a Delaware
corporation.
"FN Parent Debt" means the 12-1/2% Senior Notes due 2003 issued by FN
Parent in an aggregate principal amount equal to $455,000,000.
"FN Parent Debt Document" means the Indenture dated as of April 15,
1996 made by FN Parent in favor of The Bank of New York, as trustee, in
connection with the
18
FN Parent Debt and any other agreement or instrument which governs the terms of
the FN Parent Debt.
"FN Parties" means the Bank, FN Holdings and FN Parent.
"FN Tax Agreement" means the Tax Sharing Agreement dated as of January
1, 1994 among Mafco, FN Holdings, the Bank and certain Subsidiaries of FN
Holdings and the Bank.
"Four Star" means Four Star Holdings Corp., a Delaware corporation.
"Four Star Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by Four Star and The Bank of New York, in its capacity as voting trustee, to
the Collateral Agent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
"Fully Satisfied" shall mean, with respect to the Payment Obligations
as of any date, that, on or before such date, (a) the principal of and interest
accrued to such date on all outstanding Advances shall have been paid in full
in cash, (b) the Commitments shall have been terminated in full and (c) all
fees, expenses and other amounts then due and payable which constitute Payment
Obligations shall have been paid in cash; provided, however, that on such date
none of the Administrative Agent and the Lenders shall have made any claims in
respect of Payment Obligations against the Borrower or any other Loan Party
under any provision of any of the Loan Documents that has not been cash
collateralized by an amount sufficient in the reasonable judgment of the
Administrative Agent, the Required Lenders and any such Lender (if such Lender
is not one of the Lenders constituting the Required Lenders) to secure such
claim.
"GAAP" means 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 referred to in Section
4.01(f), except that with respect to (x) the preparation of any financial
statement required to be furnished pursuant to clause (i), (ii) or (iii) of
Section 5.01(j) and (y) changes to financial statement presentation and
accounting policies contemplated by Section 5.02(h), "GAAP" shall mean such
principles as in effect from time to time in the United States of America.
"Guarantor" means each of Mafco, Borrower Parent, ▇▇▇▇▇▇▇ Guarantor,
New World Guarantor, Flavors Guarantor, Cigar Guarantor, C&F Guarantor and, on
and after the Revlon Inclusion Date, Revlon Guarantor; provided, however, that
on and after the date of the sale, monetization or other disposal by Mafco or
any of its Subsidiaries of all of the News Corp. Preferred ADRs, New World
Guarantor shall no longer be a "Guarantor".
19
"Guaranty" means each of the Borrower Parent Guaranty, the C&F
Guaranty, the Cigar Guaranty, the ▇▇▇▇▇▇▇ Guaranty, the Flavors Guaranty, the
Mafco Guaranty, the New World Guaranty and, on and after the Revlon Inclusion
Date, the Revlon Guaranty; provided, however, that on and after the date of the
sale, monetization or other disposal by Mafco or any of its Subsidiaries of all
of the News Corp. Preferred ADRs, the New World Guaranty shall no longer be a
"Guaranty".
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation and radon gas, (b) any substances defined as
or included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous wastes", "restricted hazardous
wastes", "toxic substances", "toxic pollutants", "contaminants" or
"pollutants", or words of similar import, under any Environmental Law and (c)
any other substance exposure to which is regulated under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Indemnified Party" has the meaning specified in Section 8.04(c).
"Initial Date" means, for purposes of Section 2.12, in the case of the
Administrative Agent and each Financial Institution, the date of its execution
and delivery of this Agreement and, in the case of each Lender other than a
Financial Institution, the date of the Assignment and Acceptance pursuant to
which it becomes a Lender.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance, and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that
(i) the Borrower may not select any Interest Period with respect
to any Eurodollar Rate Advance which ends after June 30, 1997;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended
20
to occur on the next succeeding Business Day, provided that, if such
extension would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day; and
(iii) whenever the first day of any Interest Period occurs on a
day in a calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, debt obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person, including,
without limitation, any arrangement pursuant to which the investor incurs Debt
of the types referred to in clauses (i) and (j) of the definition of "Debt" in
respect of such Person.
"L/C Cash Collateral Account" has the meaning specified in the
Borrower Security Agreement.
"Lenders" means the Financial Institutions listed on the signature
pages hereof and each Eligible Assignee that shall become a party hereto
pursuant to Section 8.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"Loan Documents" means this Agreement, the Notes, each Guaranty, each
Collateral Document, the Equity Contribution Agreement and the First Gibraltar
Loan Agreement.
"Loan Party" means each of the Borrower, each Guarantor, M&F, ▇▇▇▇▇▇▇,
Four Star, New ▇▇▇▇▇▇▇ and First Gibraltar.
"Look-Forward Certificate" has the meaning specified in Section
5.01(k).
"M&F" means MacAndrews & Forbes Holdings Inc., a Delaware corporation.
"M&F Pledge Agreement" means the Amended and Restated Non-Recourse
Guaranty and Pledge Agreement dated as of December 16, 1996 made by M&F to the
21
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Mafco" has the meaning specified in the Preliminary Statements.
"Mafco Collateral Account" has the meaning specified in the Mafco
Security Agreement.
"Mafco Guaranty" means the Fourth Amended and Restated Mafco Guaranty
dated as of December 16, 1996 made by Mafco in favor of the Lenders, the
Revolving Credit Agreement Lenders, the Agents, the Revolving Agents and the
Collateral Agent, as such guaranty may be amended or otherwise modified from
time to time in accordance with its terms.
"Mafco Pledge Agreement" means the Second Amended and Restated Pledge
Agreement dated as of December 16, 1996 made by Mafco and The Bank of New York,
in its capacity as voting trustee, to the Collateral Agent, as such agreement
may be amended or otherwise modified from time to time in accordance with its
terms.
"Mafco Security Agreement" means the Fourth Amended and Restated Mafco
Security Agreement dated as of December 16, 1996 made by Mafco to the
Collateral Agent, as such agreement may be amended or otherwise modified from
time to time in accordance with its terms.
"Managing Agents" has the meaning specified in the recital of parties
hereto.
"Margin Stock" has the meaning specified in Regulation U of the Board
of Governors of the Federal Reserve System and any successor regulations
thereto, as in effect from time to time.
"Marvel" means Marvel Entertainment Group, Inc., a Delaware
corporation.
"Marvel IV Required Lenders" means at any time Lenders and Revolving
Credit Agreement Lenders owed or holding at least a majority in interest of the
sum of (a) the aggregate principal amount of the Advances outstanding at such
time, (b) the aggregate principal amount of the Debt outstanding at such time
under the Revolving Credit Agreement, (c) the aggregate Available Amount (as
defined in the Revolving Credit Agreement) of all Letters of Credit (as defined
in the Revolving Credit Agreement) outstanding at such time, (d) the aggregate
unused Commitments, (e) the aggregate "Unused Tranche A Revolving Credit
Commitment" under the Revolving Credit Agreement and (f) the aggregate "Unused
Tranche B Revolving Credit Commitment" under the Revolving Credit Agreement
(provided that, for purposes hereof, neither the Borrower, nor any of its
22
Affiliates, if a Lender or a Revolving Credit Agreement Lender, shall be
included in (x) the Lenders and the Revolving Credit Agreement Lenders holding
such amount of the Advances, the Debt or the Available Amount of all Letters of
Credit or having such amount of the Commitments, the "Unused Tranche A
Revolving Credit Commitment" or the "Unused Tranche B Revolving Credit
Commitment" or (y) determining the aggregate unpaid principal amount of the
Advances or such Debt, the total Commitments, the total "Unused Tranche A
Revolving Credit Commitments" under the Revolving Credit Agreement or the total
"Unused Tranche B Revolving Credit Commitments" under the Revolving Credit
Agreement); provided, however, that if any Lender shall be a Defaulting Lender
at such time or any Revolving Credit Agreement Lender shall be a "Defaulting
Lender" under the Revolving Credit Agreement at such time, there shall be
excluded from the determination of Marvel IV Required Lenders at such time (i)
the aggregate principal amount of the Advances owing to such Lender (in its
capacity as Lender) and outstanding at such time, (ii) the aggregate principal
amount of Debt under the Revolving Credit Agreement owing to such Revolving
Credit Agreement Lender and outstanding at such time, (iii) such Lender's Pro
Rata Share (as defined in the Revolving Credit Agreement) of the aggregate
Available Amount of all Letters of Credit issued by such Revolving Credit
Agreement Lender as of such time, (iv) the aggregate unused portion of the
Commitments of such Lender at such time and (v) the aggregate "Unused Tranche A
Revolving Credit Commitment" and "Unused Tranche B Revolving Credit Commitment"
of such Revolving Credit Agreement Lender under the Revolving Credit Agreement
at such time; provided, further, that on and after the Revolving Credit
Agreement Termination Date, the Marvel IV Required Lenders shall be the
Required Lenders hereunder. For purposes of this definition, the aggregate
principal amount of Letter of Credit Advances owing to the Issuing Bank (as
defined in the Revolving Credit Agreement) and the Available Amount of each
Letter of Credit shall be considered to be owed to the Revolving Credit
Agreement Lenders ratably in accordance with their respective Tranche A
Revolving Credit Commitment (as defined in the Revolving Credit Agreement).
"Marvel Inclusion Period" means the period commencing on the date that
Mafco or any of its Affiliates acquires the New Marvel Shares and terminating
on the later to occur of (x) the Term Credit Agreement Termination Date and (y)
the "Tranche B Termination Date" under the Revolving Credit Agreement.
"Material Adverse Change" means, with respect to any Person, a
material adverse change in the condition (financial or otherwise), operations,
assets, business or prospects of such Person and its Subsidiaries, taken as a
whole.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect upon (a) the condition (financial or otherwise),
operations, assets, business or prospects of such Person and its Subsidiaries,
taken as a whole, or (b) the ability of a Loan Party to perform its obligations
under any Loan Document, or (c) the rights and remedies of the Administrative
Agent, the Collateral Agent or any Lender under any Loan Document.
23
"MCG" means Mafco Consolidated Group Inc., a Delaware corporation.
"MCG Tax Agreement" means the Tax Sharing Agreement dated as of June
15, 1995 among Mafco, MCG and Subsidiaries of MCG party thereto.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, which is subject to Title IV of ERISA,
and to which such Person or any of its ERISA Affiliates is making or accruing
an obligation to make contributions, or has within any of the preceding five
plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, which is subject to Title IV of
ERISA, and (a) that is maintained for employees of such Person or any of its
ERISA Affiliates and at least one Person other than such Person and its ERISA
Affiliates or (b) that was so maintained and in respect of which such Person or
any of its ERISA Affiliates could have liability under Section 4064 or 4069 of
ERISA in the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset or the sale or issuance by any Person of any
Debt or capital stock, any securities convertible into or exchangeable for
capital stock or any warrants, rights or options to acquire capital stock, the
sum of (i) the aggregate amount of cash received from time to time by or on
behalf of such Person in connection with such transaction plus (ii) the
aggregate principal amount of any Debt listed on Schedule VII hereto that is
assumed, directly or indirectly, by any Person (other than Mafco or an
Affiliate of Mafco) in connection with, or as a result of, such transaction,
after deducting therefrom only (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees and expenses, finder's
fees, accountants' fees and expenses and other similar fees, expenses and
commissions, (b) the amount of taxes payable or estimated in good faith to be
payable within 12 months following the date of the consummation of such
transaction in connection with or as a result of such transaction and (c) the
amount of any Debt that, by the terms of such Debt, is required to be repaid
upon such disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are payable to a Person that is not an Affiliate (other
than such amounts that are payable by the Borrower and its Subsidiaries to an
Affiliate pursuant to a Related Document) and are properly attributable to such
transaction or to the asset that is the subject thereof.
"Net Equity Value" means for any day of determination for any
Designated Person:
(i) with respect to ▇▇▇▇▇▇▇ Guarantor, an amount (not less than
$0) equal to the excess of (A) the product of the number of shares of
common stock of ▇▇▇▇▇▇▇
24
owned directly or indirectly by ▇▇▇▇▇▇▇ Guarantor times the average
closing price during the Calculation Period relating to such day of
determination of such common stock on the New York Stock Exchange over
(B) the Defeased Debt Amount of ▇▇▇▇▇▇▇ Guarantor;
(ii) with respect to New World Guarantor, (x) prior to the date
of the consummation of the New World Acquisition, an amount (not less
than $0) equal to the excess of (A) the product of the number of
shares of Class B common stock of New World owned directly or
indirectly by New World Guarantor times the average closing price of
the Class A common stock during the Calculation Period relating to
such day of determination for such Class A Common Stock on either the
New York Stock Exchange or the Nasdaq National Market System over (B)
the Defeased Debt Amount of New World Guarantor and (y) on and after
the date of the consummation of the New World Acquisition, an amount
(not less than $0) equal to the excess of (1) the product of the
number of News Corp. Preferred ADRs pledged in favor of the Collateral
Agent under the Collateral Documents times, the average closing price
of the News Corp. Preferred ADRs during the Calculation Period
relating to such day of determination for such News Corp. Preferred
ADRs on either the New York Stock Exchange or the Nasdaq National
Market System over (2) the product of (A) the aggregate principal
amount of Advances outstanding on such day times (B) 1.25;
(iii) with respect to C&F Guarantor, an amount (not less than $0)
equal to the product of the number of shares of common stock of MCG
owned directly or indirectly by C&F Guarantor times the average
closing price during the Calculation Period relating to such day of
determination of such common stock on the New York Stock Exchange; and
(iv) with respect to Revlon Guarantor (on and after the Revlon
Inclusion Date), an amount (not less than $0) equal to the excess of
(A) the product of the number of shares of common stock of Revlon
owned directly or indirectly by Revlon Guarantor times the average
closing price during the Calculation Period relating to such day of
determination of such common stock on the New York Stock Exchange over
(B) the Defeased Debt Amount of Revlon Guarantor.
"Net Residual Value" means for any day of determination an amount
equal to the aggregate Net Equity Value of the Designated Persons on such day.
"New ▇▇▇▇▇▇▇" means New ▇▇▇▇▇▇▇ Holdings Inc., a Kansas corporation.
"New ▇▇▇▇▇▇▇ Pledge Agreement" means the Amended and Restated
Non-Recourse Guaranty and Pledge Agreement dated as of December 16, 1996 made
by New ▇▇▇▇▇▇▇ and The Bank of New York, in its capacity as voting trustee, to
the Collateral
25
Agent, as such agreement may be amended or otherwise modified from time to time
in accordance with its terms.
"New Marvel Shares" means all shares of capital stock of Marvel issued
after the date hereof and received by ▇▇▇▇▇▇▇ or any of its Affiliates.
"New World" means New World Communications Group Incorporated, a
Delaware corporation.
"New World Acquisition" means the acquisition by News Corp. of NWCG
Holdings and the shares of Class B common stock of New World held by New World
Guarantor pursuant to the News Corp. Contract and related documents.
"New World Guarantor" means NWCG (Parent) Holdings Corporation, a
Delaware corporation.
"New World Guaranty" means the Fourth Amended and Restated New World
Guaranty dated as of December 16, 1996 made by New World Guarantor in favor of
the Lenders, the Revolving Credit Agreement Lenders, the Agents, the Revolving
Agents and the Collateral Agent, as such guaranty may be amended or otherwise
modified from time to time in accordance with its terms.
"New World Pledge Agreement" means the Second Amended and Restated
Pledge and Assignment Agreement dated as of December 16, 1996 made by New World
Guarantor to the Collateral Agent, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"Newco" means DROF Holdings Inc., a Delaware corporation.
"Newco Loan" means the loan by First Gibraltar to Newco in an
aggregate principal amount of $150,000,000 for the sole purpose of purchasing
the FN Holdings Preferred Stock.
"News Corp." means The News Corporation Limited, a South Australia
corporation.
"News Corp. Contract" means the Stock Purchase Agreement dated as of
September 24, 1996 among New World Guarantor, News Corp. and Fox Television
Stations, Inc., as such agreement may be amended, modified or supplemented in
accordance with the terms of the Loan Documents.
26
"News Corp. Preferred ADRs" means the American Depositary Shares of
News Corp., each of which represents four fully paid and nonassessable
Preferred Limited Voting Ordinary Shares, of A $.50 each of News Corp.,
received by New World Guarantor pursuant to the terms of the News Corp.
Contract.
"Notes" means the Tranche A Term Notes and the Tranche B Term Notes.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"NWCG Holdings" means NWCG Holdings Corporation, a Delaware
corporation.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(e). Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by any Loan Party
under any Loan Document and (b) the obligation to reimburse any amount in
respect of any of the foregoing that any Lender, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"Original Credit Agreement" has the meaning given such term in the
Revolving Credit Agreement.
"Other Taxes" has the meaning specified in Section 2.13(b).
"Payment Obligations" shall mean all principal, interest, fees,
charges, expenses, attorneys' fees and expenses, indemnities and any other
amounts payable by the Loan Parties under the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
27
"Pledge Agreements" means the C&F Pledge Agreement, the Cigar Pledge
Agreement, the ▇▇▇▇▇▇▇ Pledge Agreement, the ▇▇▇▇▇▇▇ Worldwide Pledge
Agreement, the Flavors Pledge Agreement, the Four Star Pledge Agreement, the
Mafco Pledge Agreement, the M&F Pledge Agreement, the New ▇▇▇▇▇▇▇ Pledge
Agreement, the New World Pledge Agreement, the Second ▇▇▇▇▇▇▇ Pledge Agreement
and, on and after the Revlon Inclusion Date, the Revlon Pledge Agreement;
provided, however, that, on and after the date of the sale, monetization or
other disposal by Mafco or any of its Subsidiaries of all of the News Corp.
Preferred ADRs, the New World Pledge Agreement shall no longer be a "Pledge
Agreement".
"Register" has the meaning specified in Section 8.07(c).
"Related Documents" means the ▇▇▇▇▇▇▇ Tax Agreements, the FN Tax
Agreement and the MCG Tax Agreement.
"Required Lenders" means at any time Lenders owed or holding at least
a majority in interest of the sum of the aggregate principal amount of the
Advances outstanding at such time, or, if no such principal amount is
outstanding at such time, Lenders holding at least a majority in interest of
the aggregate of the Commitments (provided that, for purposes hereof, neither
the Borrower, nor any of its Affiliates, if a Lender, shall be included in (x)
the Lenders holding such amount of the Advances or having such amount of the
Commitments or (y) determining the aggregate unpaid principal amount of the
Advances or the total Commitments); provided, however, that if any Lender shall
be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time and (ii) the aggregate unused portion of the
Commitments of such Lender at such time.
"Revlon" means Revlon, Inc., a Delaware corporation.
"Revlon Guarantor" means Revlon Guarantor Corp., a Delaware
corporation.
"Revlon Guaranty" means the Revlon Guaranty to be made, at the
Borrower's option, by Revlon Guarantor in favor of the Lenders, the Revolving
Credit Agreement Lenders, the Agents, the Revolving Agents and the Collateral
Agent in substantially the form of Exhibit E-8, as such guaranty may be amended
or otherwise modified from time to time in accordance with its terms.
"Revlon Holdings Statement" shall mean a statement that the sum of the
fair market value of Revlon Worldwide Corporation plus the fair market value of
National Health Care Group, Inc. constitutes at least 95% of the fair market
value of Revlon Holdings Inc.
28
"Revlon Inclusion Date" means the date on which the Administrative
Agent and the Revolving Administrative Agent deliver a notice to the Borrower
that the Administrative Agent or the Collateral Agent, as the case may be,
shall have received, in form and substance satisfactory to the Administrative
Agent and in sufficient copies for each Lender (or the requirement that such
document be delivered shall have been duly waived):
(i) certified copies of the resolutions of the board of directors
of Revlon Guarantor approving the Revlon Guaranty and the Revlon
Pledge Agreement, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
the Revlon Guaranty and the Revlon Pledge Agreement;
(ii) a certificate of the Secretary or an Assistant Secretary of
Revlon Guarantor certifying the names and true signatures of the
officers of Revlon Guarantor authorized to sign the Revlon Guaranty
and the Revlon Pledge Agreement;
(iii) a copy of a certificate of the Secretary of State of the
state of incorporation of each of National Health Care Group Inc.,
Revlon Guarantor, Revlon Holdings Inc., Revlon Worldwide Corporation
and Revlon, dated reasonably near the Revlon Inclusion Date, listing
the charter of such Person and each amendment thereto on file in his
office and certifying that (A) such amendments are the only amendments
to such Person's charter on file in his office, (B) such Person has
paid all franchise taxes to the date of such certificate and (C) such
Person is duly incorporated or organized and in good standing under
the laws of such state;
(iv) (A) a certificate of each of National Health Care Group
Inc., Revlon Guarantor, Revlon Holdings Inc. and Revlon Worldwide
Corporation signed on behalf of such Person by its President or a Vice
President and its Secretary or any Assistant Secretary, dated as of
the Revlon Inclusion Date (the statements made in such certificate
shall be true on and as of the Revlon Inclusion Date), certifying as
to (1) the absence of any amendments to the charter of such Person
since the date of the Secretary of State's certificate referred to in
clause (iii) above, (2) the trueness and correctness of the bylaws of
such Person attached to such certificate, (3) the due incorporation
and good standing of such Person as a corporation under the laws of
the relevant state of incorporation, and the absence of any proceeding
for the dissolution or liquidation of such Person, (4) the truth in
all material respects of the representations and warranties made by
such Person contained in the Revlon Guaranty and the Revlon Pledge
Agreement as though made on and as of the Revlon Inclusion Date and
(5) the absence of any event occurring and
29
continuing, or resulting from the Revlon Inclusion Date, that
constitutes a Default and (B) a certificate of Revlon Guarantor signed
on behalf of Revlon Guarantor by its President or a Vice President and
its Secretary or any Assistant Secretary, dated as of the Revlon
Inclusion Date (the statements made in such certificate shall be true
on and as of the Revlon Inclusion Date), certifying as to (1) the
absence of any amendments to the charter of Revlon since the date of
the Secretary of State's Certificate referred to in clause (iii)
above, (2) the trueness and correctness of the bylaws of Revlon
attached to such certificate and (3) the due incorporation and good
standing of Revlon as a corporation organized under the laws of the
State of Delaware, and the absence of any proceeding for the
dissolution or liquidation of Revlon;
(v) the Revlon Guaranty in substantially the form of Exhibit E-8,
duly executed by Revlon Guarantor;
(vi) the Revlon Pledge Agreement in substantially the form of
Exhibit F-12, duly executed by Revlon Guarantor, together with (1)
certificates representing the Pledged Shares referred to in the Revlon
Pledge Agreement accompanied by undated stock powers executed in
blank, (2) acknowledgment copies or stamped receipt copies of
financing statements, duly filed on or before such date under the
Uniform Commercial Code of all jurisdictions that the Administrative
Agent may deem necessary or desirable in order to perfect the Liens
created by the Revlon Pledge Agreement, covering the Collateral
described in the Revlon Pledge Agreement, and (3) completed requests
for information, dated on or before such date listing the financing
statements referred to in clause (2) above and all other effective
financing statements filed in the jurisdictions referred to in clause
(2) above that name Revlon Guarantor, as debtor, together with copies
of such other financing statements;
(vii) certified copies of (A) a voting trust agreement among
Revlon Finance Corporation, Revlon Guarantor, the Collateral Agent and
The Bank of New York, as voting trustee, in substantially the form of
the voting trust agreements delivered pursuant to Section
3.01(h)(xiii)(A) and (B) the charter of Revlon Guarantor, the terms
and conditions of which shall be substantially similar to those
contained in the charter of ▇▇▇▇▇▇▇ Guarantor;
(viii) a letter, in form and substance satisfactory to the
Administrative Agent, from Revlon Guarantor to KPMG Peat Marwick,
independent certified public accountants, advising such accountants
that the Administrative Agent and the Lenders have relied upon the
financial statements of Revlon in determining whether to enter into
the Loan Documents and have been authorized to exercise all rights of
Revlon to require such accountants to
30
disclose any and all financial statements and any other information of
any kind that they may have with respect to Revlon and its
Subsidiaries and directing such accountants to comply with any
reasonable request of the Administrative Agent or any Lender for such
information; and
(ix) favorable opinions of counsel to Mafco reasonably
satisfactory to the Lenders, in form and substance reasonably
satisfactory to the Lenders.
"Revlon Pledge Agreement" means the Pledge Agreement to be made, at
the Borrower's option, by Revlon Guarantor to the Collateral Agent in
substantially the form of Exhibit F-12, as such agreement may be amended or
otherwise modified from time to time in accordance with its terms.
"Revlon Tax Agreements" shall have the meaning specified in the Revlon
Guaranty.
"Revolving Agents" has the meaning specified in the Preliminary
Statements.
"Revolving Administrative Agent" has the meaning specified in the
Preliminary Statements.
"Revolving Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Revolving Credit Agreement Lenders" has the meaning specified in the
Preliminary Statement.
"Revolving Credit Facilities" has the meaning given such term in the
Revolving Credit Agreement.
"Revolving Credit Agreement Termination Date" means the date on which
the "Payment Obligations" (as defined in the Revolving Credit Agreement) shall
be "Fully Satisfied" (as defined in the Revolving Credit Agreement).
"Revolving Documentation Agent" has the meaning specified in the
Preliminary Statements.
"Revolving Syndication Agent" has the meaning specified in the
Preliminary Statements.
"Second ▇▇▇▇▇▇▇ Pledge Agreement" means the Second Amended and
Restated Non-Recourse Guaranty and Pledge Agreement dated as of December 16,
1996
31
made by ▇▇▇▇▇▇▇ and The Bank of New York, in its capacity as voting trustee, to
the Collateral Agent, as such agreement may be amended or otherwise modified
from time to time in accordance with its terms.
"Second Credit Agreement" has the meaning given such term in the
Revolving Credit Agreement.
"Second Mafco Collateral Account" has the meaning specified in the
Mafco Security Agreement.
"Second New FN Holdings Debt" means the 10-5/8% Senior Subordinated
Notes due 2003 issued by FN Escrow in an aggregate principal amount equal to
$575,000,000, which will be assumed by FN Holdings upon the merger of FN Escrow
with and into FN Holdings.
"Second New FN Holdings Debt Document" means the Indenture dated as of
September 19, 1996 between FN Escrow and The Bank of New York, as trustee, in
connection with the Second New FN Holdings Debt and any other agreement or
instrument which governs the terms of the Second New FN Holdings Debt.
"Security Agreements" means the Borrower Security Agreement, the
Borrower Parent Security Agreement and the Mafco Security Agreement.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which is subject to Title IV of ERISA,
and (a) that is maintained for employees of such Person or any of its ERISA
Affiliates and no Person other than such Person and its ERISA Affiliates or (b)
in respect of which such Person or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has been or were
to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such
32
time, represents the amount that can reasonably be expected to become an actual
or matured liability.
"Specified Holding Company Debt" means the 13% Subordinated Debentures
due March 1, 1999 issued by M&F pursuant to the Indenture dated as of March 1,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇&▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York and the 10%
Senior Subordinated Debentures due 1999 issued by ▇▇▇▇▇▇▇ pursuant to the
Indenture dated as of June 4, 1990 between ▇▇▇▇▇▇▇ and First Trust of
California, National Association (as successor trustee to Security Pacific
National Trust Company (New York)).
"Stockholders Agreement" means the Stockholders Agreement dated as of
October 3, 1994, among FN Parent, FN Holdings and ▇▇▇▇▇▇ ▇. ▇▇▇▇, as such
agreement may be amended, modified or otherwise supplemented from time to time
with the consent of the Required Lenders.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the Voting
Stock of such corporation, (b) the interest in the capital or profits of such
partnership or joint venture or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries; provided, however, that for all
purposes of the Loan Documents, Toy Biz, Inc. shall not be a Subsidiary of any
of the Loan Parties.
"Supermajority Lenders" means at any time Lenders owed or holding at
least 67% of the sum of the aggregate principal amount of the Advances
outstanding at such time or, if no such principal amount is outstanding at such
time, Lenders holding at least a majority in interest of the aggregate of the
Commitments (provided that, for purposes hereof, neither the Borrower nor any
of its Affiliates, if a Lender, shall be included in (x) the Lenders holding
such amount of the Advances or having such amount of the Commitments or (y)
determining the aggregate unpaid principal amount of the Advances or the total
Commitments); provided, however, that if any Lender shall be a Defaulting
Lender at such time, there shall be excluded from the determination of
Supermajority Lenders at such time (i) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and outstanding at
such time and (ii) the aggregate unused portions of the Commitments of such
Lender at such time.
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Tax Certificate" has the meaning specified in Section 5.01(j)(xiii).
"Taxes" has the meaning specified in Section 2.12(a).
33
"Term Credit Agreement Termination Date" means the date on which the
Payment Obligations have been Fully Satisfied.
"Term Facilities" means the Tranche A Term Facility and the Tranche B
Term Facility.
"Third Credit Agreement" has the meaning specified in the Revolving
Credit Agreement.
"Toy Biz" has the meaning specified in the Preliminary Statements.
"Tranche A Required Lenders" means at any time Lenders owed or holding
at least a majority in interest of the sum of the aggregate principal amount of
the Tranche A Term Advances outstanding at such time, or, if no such principal
amount is outstanding at such time, Lenders holding at least a majority in
interest of the aggregate of the Tranche A Term Commitments (provided that, for
purposes hereof, neither the Borrower, nor any of its Affiliates, if a Lender,
shall be included in (x) the Lenders holding such amount of the Tranche A Term
Advances or having such amount of the Tranche A Term Commitments or (y)
determining the aggregate unpaid principal amount of the Tranche A Term
Advances or the total Tranche A Term Commitments); provided, however, that if
any Lender shall be a Defaulting Lender at such time, there shall be excluded
from the determination of Tranche A Required Lenders at such time (i) the
aggregate principal amount of the Tranche A Term Advances owing to such Lender
(in its capacity as a Lender) and outstanding at such time and (ii) the
aggregate unused portion of the Tranche A Term Commitments of such Lender at
such time.
"Tranche A Term Advance" has the meaning specified in Section 2.01(a).
"Tranche A Term Borrowing" means a borrowing consisting of
simultaneous Tranche A Term Advances of the same Type made by the Lenders.
"Tranche A Term Commitment" means, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Tranche A Term Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 8.07(c) as
such Lender's "Tranche A Term Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.04.
"Tranche A Term Facility" means, at any time, the aggregate amount of
the Lenders' Tranche A Term Commitments at such time.
34
"Tranche A Term Note" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the Tranche A Term Advances made by such Lender.
"Tranche A Termination Date" means the earliest of (a) June 30, 1997,
(b) the date of the termination (and abandonment) of the News Corp. Contract,
(c) the date of the sale, monetization or other disposal by Mafco or any of its
Subsidiaries of all of the News Corp. Preferred ADRs or (d) the date of
termination in whole of the Tranche A Term Commitments pursuant to Section 2.04
or 6.01.
"Tranche B Required Lenders" means at any time Lenders owed or holding
at least a majority in interest of the sum of the aggregate principal amount of
the Tranche B Term Advances outstanding at such time, or, if no such principal
amount is outstanding at such time, Lenders holding at least a majority in
interest of the aggregate of the Tranche B Term Commitments (provided that, for
purposes hereof, neither the Borrower, nor any of its Affiliates, if a Lender,
shall be included in (x) the Lenders holding such amount of the Tranche B Term
Advances or having such amount of the Tranche B Term Commitments or (y)
determining the aggregate unpaid principal amount of the Tranche B Term
Advances or the total Tranche B Term Commitments); provided, however, that if
any Lender shall be a Defaulting Lender at such time, there shall be excluded
from the determination of Tranche B Required Lenders at such time (i) the
aggregate principal amount of the Tranche B Term Advances owing to such Lender
(in its capacity as a Lender) and outstanding at such time and (ii) the
aggregate unused portion of the Tranche B Term Commitments of such Lender at
such time.
"Tranche B Term Advance" has the meaning specified in Section 2.01(b).
"Tranche B Term Borrowing" means a borrowing consisting of
simultaneous Tranche B Term Advances of the same Type made by the Lenders.
"Tranche B Term Commitment" means, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Tranche B Term Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 8.07(c) as
such Lender's "Tranche B Term Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.04.
"Tranche B Term Facility" means, at any time, the aggregate amount of
the Lenders' Tranche B Term Commitments at such time.
35
"Tranche B Term Note" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the Tranche B Term Advances made by such Lender.
"Tranche B Termination Date" means the earliest of (a) June 30, 1997,
(b) the date of the termination (and abandonment) of the News Corp. Contract,
(c) the date of the sale, monetization or other disposal by Mafco or any of its
Subsidiaries of all of the News Corp. Preferred ADRs or (d) the date of
termination in whole of the Tranche B Term Commitments pursuant to Section 2.04
or 6.01.
"Treasury Regulations" means the temporary and final regulations
promulgated under the Internal Revenue Code of 1986, as amended from time to
time.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unfunded Pension Liabilities" with respect to any Plan means the
excess, if any, of its accumulated benefit obligation ("ABO"), as determined in
accordance with Statement of Financial Accounting Standards No. 87 or any
successor thereto ("FAS 87") over the fair market value of its assets (as of
such date) (provided that in determining the ABO for this purpose, the
interest, mortality and other relevant actuarial assumptions used to fund such
Plan as of its most recent actuarial valuation) shall be used instead of the
interest, mortality and other relevant actuarial assumptions that would
otherwise be prescribed by FAS 87.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Part IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
36
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) The Tranche A Term Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make a single advance (a "Tranche A Term Advance") to the Borrower on any
Business Day during the period from the date hereof until the Tranche A
Termination Date in an amount not to exceed such Lender's Tranche A Term
Commitment at such time. The Tranche A Term Borrowing shall consist of Tranche
A Term Advances made simultaneously by the Lenders ratably according to their
Tranche A Term Commitments. Amounts borrowed under this Section 2.01(a) and
repaid or prepaid may not be reborrowed.
(b) The Tranche B Term Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make advances (each a "Tranche B
Term Advance") to the Borrower from time to time on any Business Day during the
period from the date hereof until the Tranche B Termination Date in an
aggregate amount not to exceed at any time outstanding such Lender's Tranche B
Term Commitment on such Business Day. Each Tranche B Term Borrowing shall be in
an aggregate amount not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Tranche B Term Advances made
on the same day by the Lenders ratably according to their Tranche B Term
Commitments. Amounts borrowed under this Section 2.01(b) and repaid or prepaid
may not be reborrowed.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.15, each Borrowing shall be made on notice given not later than 11:00
A.M. (New York City time) on the first Business Day prior to the date of a
proposed Borrowing consisting of Base Rate Advances or the third Business Day
prior to the date of a proposed Borrowing consisting of Eurodollar Rate
Advances, by the Borrower to the Administrative Agent, which shall give to each
Lender prompt notice thereof by telecopier, telex or cable. Each such notice of
a Borrowing (a "Notice of Borrowing") shall be by telecopier, telex or cable,
and, with respect to a Notice of Borrowing by telex or cable, confirmed
immediately thereafter in writing, in substantially the form of Exhibit C
hereto, specifying therein the requested (i) date of such Borrowing, (ii)
Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v)
Interest Period for each Eurodollar Rate Advance included in such Borrowing. In
the case of a proposed Borrowing comprised of Eurodollar Rate Advances, the
Administrative Agent shall promptly notify the Borrower and each Lender of the
37
applicable interest rate under Section 2.06(a)(ii). Each Lender shall, before
12:00 noon (New York City time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent at
the Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available by crediting the
Borrower's Account.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part
of such Borrowing when such Advance, as a result of such failure, is not made
on such date.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume, or at its option request
confirmation from such Lender, that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption or confirmation (as the case may be), make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available
to the Administrative Agent, such Lender and the Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.06 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the cost (expressed as a rate
per annum) to the Administrative Agent of funding such Lender's ratable
portion; provided, however, that, upon the request of such Lender, the
Administrative Agent shall provide such Lender with a certificate as to the
calculation of such amount. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for
38
the failure of any other Lender to make the Advance to be made by such other
Lender on the date of any Borrowing.
(e) The Borrower may not request a Borrowing comprised of Eurodollar
Rate Advances or, pursuant to Section 2.10, Convert Base Rate Advances into
Eurodollar Rate Advances or select a new Interest Period for existing
Eurodollar Rate Advances if, after the making or Conversion of such Advances or
the selection of such Interest Period, the number of outstanding Borrowings
comprised of Eurodollar Rate Advances having different Interest Periods
(whether of different duration or commencing on different dates) would exceed
6.
SECTION 2.03. Repayment. (a) Tranche A Term Advances. The Borrower
shall repay to the Administrative Agent for the ratable account of the Lenders
on the Tranche A Termination Date the aggregate principal amount of the Tranche
A Term Advances then outstanding.
(b) Tranche B Term Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Lenders on the Tranche B
Termination Date the aggregate principal amount of the Tranche B Term Advances
then outstanding.
SECTION 2.04. Optional Termination or Reduction of the Commitments.
The Borrower shall have the right, upon at least three Business Days' prior
notice to the Administrative Agent, to terminate in whole or reduce ratably in
part the unused portions of the Tranche A Term Commitments and the Tranche B
Term Commitments; provided that each partial reduction of a Facility (i) shall
be in an aggregate amount of $10,000,000 or an integral multiple of $1,000,000
in excess thereof and (ii) shall be made ratably among the Lenders in
accordance with their Commitments with respect to such Facility.
SECTION 2.05. Prepayments. (a) Optional. The Borrower may, upon at
least one Business Day's notice to the Administrative Agent, in the case of
Base Rate Advances, and three Business Days' notice to the Administrative
Agent, in the case of Eurodollar Rate Advances, stating the proposed date, and
the aggregate principal amount of the prepayment, and if such notice is given,
the Borrower shall, prepay the outstanding principal amounts of the Advances
comprising part of the same Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount so
prepaid; provided, however, that, with respect to any prepayment made in
connection with the provisions of Section 7(o) of the Mafco Guaranty, no such
notice shall be required; provided further that (x) each partial prepayment
(other than a prepayment made in connection with the provisions of Section 7(o)
of the Mafco Guaranty) shall be in an aggregate principal amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if the
aggregate principal amount of all Advances that constitute part of such
Borrowing is less, such aggregate principal amount) and (y) in the event any
such
39
prepayment of Eurodollar Rate Advances is not made on the last day of an
Interest Period, the Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 8.04(b).
(b) Mandatory. (i) The Borrower shall, on any date (A) on which a cash
equity contribution is deposited in the Borrower Collateral Account as a result
of a loan made by First Gibraltar to the Borrower Parent pursuant to the terms
of the First Gibraltar Loan Agreement or on which a deposit of amounts paid
under or in connection with any Related Documents is made to the Mafco
Collateral Account or on which a deposit of amounts constituting Net Cash
Proceeds from an Asset Sale is made to the Mafco Collateral Account and (B)
either (I) a Default has occurred and is continuing, (II) the Borrower fails to
deliver a Look-Forward Certificate or a Deposit Certificate with respect to
such deposit in accordance with the terms of Section 5.01(k) or (III) the
Marvel IV Required Lenders determine, in their reasonable discretion, within 15
Business Days following the date of the receipt of the Look-Forward Certificate
or within 2 Business Days following the date of the receipt of Deposit
Certificate, as the case may be, referred to in clause (B)(II), that the pro
forma amounts available to be loaned by First Gibraltar to Borrower Parent,
together with amounts received by Mafco pursuant to or in connection with any
Related Document, will be less than $8 million in any calendar quarter or will
not be sufficient to pay interest on the Debt then outstanding under the
Revolving Credit Agreement, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings equal to an amount equal to the
excess of (x) the amount of such cash equity contribution or the amount on
deposit in the Mafco Collateral Account, as the case may be, plus any interest
on Collateral Investments made with such contribution or deposit over (y) the
sum of (1) the amount of interest and fees then due and payable in respect of
the Facilities plus (2) the amount of expenses of the Administrative Agent
(including the reasonable fees and expenses of counsel to the Administrative
Agent) then due and payable plus (3) the aggregate amount paid (including the
aggregate amount of interest, fees and expenses then due and payable in respect
of the Revolving Credit Facilities) from such cash equity contribution or such
amount on deposit in the Mafco Collateral Account, as the case may be, or from
any interest on Collateral Investments made with such contribution or deposit
pursuant to the terms of Section 2.05(b)(i) and/or Section 2.06(b)(i) or (ii)
of the Revolving Credit Agreement. Each such prepayment of the Facilities shall
be applied ratably first to the Tranche B Term Facility and second to the
Tranche A Term Facility. Each such prepayment of a Facility shall be made
ratably among the Lenders in accordance with their Commitments with respect to
such Facility.
(ii) The Borrower shall:
(A) on the date of receipt by any A Company of the Net Cash
Proceeds of issuances, sales or liquidations of any capital stock
(including any securities convertible into or exchangeable for capital
stock or any warrants, rights or options to
40
acquire capital stock) of any A Company (other than (x) any Net Cash
Proceeds in respect of any Asset Sale and (y) the preferred stock to
be issued by FN Holdings in exchange for the preferred stock of FN
Escrow upon consummation of the merger of FN Escrow with and into FN
Holdings which preferred stock will be redeemed in full concurrently
with or immediately after the consummation of such merger),
(B) on the date of receipt by any A Company of any dividends,
other distributions or any loans or advances made in respect of the
capital stock of any other A Company (other than FN Holdings and FN
Parent) (provided that this clause (B) shall not apply to the receipt
by any A Company of any dividends, other distributions or any loans or
advances made in respect of all or any portion of the proceeds
received by Mafco or any of its Subsidiaries from any Asset Sale or
any sale, lease, transfer or other disposition specified in clauses
(i) through (v) of the definition of "Asset Sale".
(C) on the date of receipt by any A Company of the proceeds of
distributions, dividends or any loans or advances made on account of
or as a result of the issuance, sale or liquidation of any capital
stock (including any securities convertible into or exchangeable for
capital stock or any warrants, rights or options to acquire capital
stock but excluding any Asset Sale) of, or the sale, issuance or
incurrence of any Debt by, any Designated Operating Company, and
(D) on the date of receipt by any A Company of the Net Cash
Proceeds from the sale, issuance or incurrence by any A Company of any
Debt (other than any sale, issuance or incurrence by Revlon Holdings
Inc. of any Debt to any of its Subsidiaries),
prepay an aggregate principal amount of the Advances comprising part of the
same Borrowings equal to an amount equal to the excess of (x) the amount so
received (except, in each case, to the extent (1) required pursuant to the
terms of any agreement or instruments relating to Debt existing on the date
hereof or otherwise approved by the Marvel IV Required Lenders of any A Company
or Designated Operating Company to prepay or redeem or purchase such Debt or
(2) prohibited to be so applied by the terms of any agreement or instrument
relating to Debt existing on the date hereof or otherwise approved by the
Marvel IV Required Lenders of any A Company or Designated Operating Company)
over (y) the sum of (1) the amount of interest and fees then due and payable in
respect of the Facilities plus (2) the amount of expenses of the Administrative
Agent (including the reasonable fees and expenses of counsel to the
Administrative Agent) then due and payable plus (3) the aggregate amount paid
(including the aggregate amount of interest, fees and expenses then due and
payable in respect of the "Facilities" under the Revolving Credit Agreement)
from the amounts so received pursuant to the terms of Section 2.05(b)(ii)
and/or 2.06(b)(i) or (ii) of the Revolving Credit Agreement. Each such
prepayment of a Facility shall be applied
41
ratably first to the Tranche B Term Facility and second to the Tranche A Term
Facility. Each such prepayment of a Facility shall be made ratably among the
Lenders in accordance with their Commitments with respect to such Facility.
(iii) The Borrower shall, on the date of receipt by Mafco or any of
its Subsidiaries (other than the Bank and its Subsidiaries) of the Net Cash
Proceeds from the sale, transfer or other disposition of (x) all or any portion
of the capital stock of the Bank (other than any issuance of capital stock by
the Bank or any Subsidiary of the Bank) or (y) any asset of the Bank, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings equal to an amount equal to the excess of (A) such Net Cash Proceeds
(other than the portion of such Net Cash Proceeds required to be paid to the
holders of the Class B common stock of FN Holdings and the holders of the FN
Holdings Preferred Stock) over (B) the sum of (1) the amount of interest and
fees then due and payable in respect of the Facilities plus (2) the amount of
expenses of the Administrative Agent (including the reasonable fees and
expenses of counsel to the Administrative Agent) then due and payable plus (3)
the aggregate amount paid (including the aggregate amount of interest, fees and
expenses then due and payable in respect of the "Facilities" under the
Revolving Credit Agreement) from such Net Cash Proceeds pursuant to the terms
of Section 2.05(b)(iii) and/or 2.06(b)(i) or (ii) of the Revolving Credit
Agreement. Each such prepayment of the Facilities shall be applied ratably
first to the Tranche B Term Facility and second to the Tranche A Term Facility.
Each such prepayment of a Facility shall be made ratably among the Lenders in
accordance with their Commitments with respect to such Facility.
(iv) The Borrower shall, on the date of receipt by Mafco or any of its
Subsidiaries, on or prior to the later of the Term Credit Agreement Termination
Date and the "Tranche B Termination Date" under the Revolving Credit Agreement,
of the Net Cash Proceeds from any Asset Sale (other than the sale, disposal or
other monetization of the News Corp. Preferred ADRs or the New Marvel Shares),
prepay an aggregate principal amount of the Advances comprising part of the
same Borrowings in an amount equal to the excess of (A) such Net Cash Proceeds
over (B) the sum of (1) the amount of interest and fees then due and payable in
respect of the Facilities plus (2) the amount of expenses of the Administrative
Agent (including the reasonable fees and expenses of counsel to the
Administrative Agent) then due and payable plus (3) the aggregate amount paid
(including the aggregate amount of interest, fees and expenses then due and
payable in respect of the "Facilities" under the Revolving Credit Agreement)
from such Net Cash Proceeds pursuant to the terms of Section 2.05(b)(iv) and/or
2.06(b)(ii) or (iii) of the Revolving Credit Agreement. Each such prepayment of
the Facilities shall be applied ratably first to the Tranche A Term Facility
and second to the Tranche B Facility; provided, however, that if the initial
Borrowing under each of the Tranche A Term Facility and the Tranche B Term
Facility occurs on the same date, such prepayment shall be applied ratably to
the Facilities. Each
42
such prepayment of a Facility shall be applied ratably among the Lenders in
accordance with their Commitments with respect to such Facility.
(v) The Borrower shall, on the date of receipt by Mafco or any of its
Subsidiaries, on or prior to the later to occur of the Term Credit Agreement
Termination Date and the "Tranche B Termination Date" under the Revolving
Credit Agreement, of the Net Cash Proceeds from the sale, disposal or other
monetization of the News Corp. Preferred ADRs or the New Marvel Shares, prepay
an aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount equal to the excess of (x) such Net Cash Proceeds over
(y) the sum of (1) the amount of interest and fees then due and payable in
respect of the Facilities plus (2) the amount of expenses of the Administrative
Agent (including the reasonable fees and expenses of counsel to the
Administrative Agent) then due and payable. Each such prepayment of the
Facility shall be applied ratably first to the Tranche A Term Facility and
second to the Tranche B Term Facility; provided, however, that if the initial
Borrowing under each of the Tranche A Term Facility and the Tranche B Term
Facility occurs on the same date, such prepayment shall be applied ratably to
the Facilities. Each such prepayment of the Facilities shall be applied ratably
among the Lenders in accordance with their Commitments with respect to such
Facility. Any Net Cash Proceeds remaining after the foregoing application shall
be applied as set forth in Section 2.05(b)(v) of the Revolving Credit
Agreement.
(vi) The Borrower shall, on each date that an "Event of Default" set
forth in Section 6.01(a) of the Revolving Credit Agreement shall have occurred
and be continuing, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings equal to an amount equal to the excess
of (x) the amount on deposit in the Second Mafco Collateral Account over (y)
the sum of (1) the amount of interest and fees then due and payable in respect
of the Facilities plus (2) the amount of expenses of the Administrative Agent
(including the reasonable fees and expenses of counsel to the Administrative
Agent) then due and payable plus (3) the aggregate amount paid (including the
aggregate amount of interest, fees and expenses then due and payable in respect
of the "Facilities" under the Revolving Credit Agreement) from such amount on
deposit pursuant to the terms of Section 2.05(b)(vii) and/or 2.06(b)(i) or (ii)
of the Revolving Credit Agreement. Each such prepayment of the Facilities shall
be applied ratably first to the Tranche B Term Facility and second to the
Tranche A Term Facility. Each such prepayment of a Facility shall be made
ratably among the Lenders in accordance with their Commitments with respect to
such Facility. If an "Event of Default" set forth in Section 6.01(a) of the
Revolving Credit Agreement shall occur and be continuing at the same time as an
Event of Default set forth in Section 6.01(a) shall occur and be continuing,
such amount shall be applied pro rata to the Facilities and the "Facilities"
under the Revolving Credit Agreement and such pro rata amount shall be applied
to the Facilities as set forth in this Section 2.05(b)(vi).
43
(vii) The Borrower shall, on each date that an Event of Default set
forth in Section 6.01(a) shall have occurred and be continuing, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings equal to an amount equal to the excess of (x) the amount on deposit
in the Second Mafco Collateral Account over (y) the sum of (1) the amount of
interest then due and payable in respect of the Facilities plus (2) the amount
of expenses of the Administrative Agent (including the reasonable fees and
expenses of counsel to the Administrative Agent) then due and payable. Each
such prepayment of the Facilities shall be applied ratably first to the Tranche
B Term Facility and second to the Tranche A Term Facility. Each such prepayment
of a Facility shall be made ratably among the Lenders in accordance with their
Commitments with respect to such Facility. Any amounts remaining on deposit in
the Second Mafco Account after the foregoing application shall be applied as
set forth in Section 2.05(b)(viii) of the Revolving Credit Agreement. If an
Event of Default set forth in Section 6.01(a) shall occur and be continuing at
the same time as an "Event of Default" set forth in Section 6.01(a) of the
Revolving Credit Agreement shall occur and be continuing, such amount (less the
sum of (1) the amount of interest then due and payable in respect of the
"Facilities" under the Revolving Credit Agreement plus (2) the amount of
expenses of the "Administrative Agent" under the Revolving Credit Agreement
(including the reasonable fees and expenses of counsel to such Administrative
Agent) then due and payable) shall be applied pro rata to the Facilities and to
the "Facilities" under the Revolving Credit Agreement and such pro rata amount
shall be applied to the Facilities as set forth in this Section 2.05(b)(vii).
(viii) If, as a result of the making of any prepayment required to be
made pursuant to this Section 2.05, the Borrower would incur costs pursuant to
Section 8.04(b), the Borrower may deposit the amount of such prepayment with
the Administrative Agent, for the benefit of the Lenders, in a cash collateral
account, until the end of the applicable Interest Period at which time such
payment shall be made. The Borrower hereby grants to the Administrative Agent,
for the benefit of the Lenders, a security interest in all amounts in which the
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 the Borrower hereby acknowledges and agrees are vested exclusively in
the Administrative Agent) to exercise dominion or control over any such
amounts.
SECTION 2.06. Interest. (a) Ordinary Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in
full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of
the Base Rate in effect from time to time plus the Applicable Margin
in effect from time to time, payable in arrears quarterly on the first
Business Day of each March, June,
44
September and December during such periods, commencing March 3, 1997,
and on the date such Base Rate Advance shall be Converted or paid in
full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Advance, a rate per annum equal at all times
during each Interest Period for such Advance to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period.
(b) Default Interest. The Borrower shall pay on demand interest on the
unpaid principal amount of each Advance that is not paid when due and on the
unpaid amount of all interest, fees and other amounts then due and payable
hereunder that is not paid when due from the due date thereof to the date paid,
at a rate per annum equal at such time to (i) in the case of any amount of
principal, 2% per annum above the rate of interest per annum required to be
paid on such Advance immediately prior to the date on which such amount became
due and payable and (ii) in the case of all other amounts, 2% per annum above
the rate per annum required to be paid on Base Rate Advances pursuant to
Section 2.06(a)(i) above.
SECTION 2.07. Interest Rate Determination. (a) The Administrative
Agent shall give prompt notice to the Borrower and each Lender of the
applicable interest rate determined by the Administrative Agent for purposes of
Section 2.06(a)(i) or (ii), and the applicable rate, if any, furnished by
Citibank for the purpose of determining the applicable interest rate under
Section 2.06(a)(i) or (ii).
(b) If Citibank cannot furnish timely information to the
Administrative Agent for determining the Eurodollar Rate, the Administrative
Agent shall forthwith notify the Borrower and each Lender that the interest
rate cannot be determined for such Eurodollar Rate Advances, whereupon (i) each
such Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii)
the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify
the Borrower that Citibank has determined that the circumstances causing such
suspension no longer exist.
(c) If the Required Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Eurodollar Rate Advances will
not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their pro rata shares of such Eurodollar Rate Advances for such
Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
45
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of
the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower
that such Required Lenders have determined that the circumstances causing such
suspension no longer exist.
(d) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith notify the Borrower and the Lenders and the
Interest Period for such Eurodollar Rate Advances will be one month.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower agrees to pay to
the Administrative Agent for the account of the Lenders a commitment fee on the
average daily unused Tranche A Term Commitment of such Lender, from the date
hereof, in the case of each Financial Institution, and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a
Lender, in the case of each other Lender, until the Tranche A Termination Date
at a rate equal to 1/2 of 1% per annum, payable in arrears on the date of the
Tranche A Term Borrowing, thereafter quarterly on the first Business Day of
each March, June, September and December commencing March 3, 1997 and on the
Tranche A Termination Date. The Borrower further agrees to pay to the
Administrative Agent for the account of the Lenders a commitment fee on the
average daily unused Tranche B Term Commitment of such Lender, from the date
hereof, in the case of each Financial Institution, and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a
Lender, in the case of each other Lender, until the Tranche B Termination Date
at a rate equal to 1/2 of 1% per annum, payable in arrears on the date of the
initial Tranche B Term Borrowing, thereafter quarterly on the first Business
Day of each March, June, September and December commencing March 3, 1997 and on
the Tranche B Termination Date.
(b) Other Fees. The Borrower shall pay to the Administrative Agent for
its own account such fees as are set forth in the fee letter dated December 16,
1996 between Mafco and Citibank, as the same may be amended or otherwise
modified from time to time.
SECTION 2.09. Increased Costs; Illegality. (a) Except as to taxes,
levies, imposts, deductions, charges, withholdings or liabilities with respect
thereto (it being understood that the Borrower shall not have any liability for
any taxes, levies, imposts, deductions, charges, withholdings or liabilities
with respect thereto, except as provided in Section 2.12), if, due to either
(i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation or
(ii) the compliance by any Lender with any guideline or request from any
central bank or other governmental authority in any case introduced, changed,
interpreted or requested after the date hereof
46
(whether or not having the force of law), there shall be (x) imposed, modified
or deemed applicable any reserve, special deposit or similar requirement
against assets held by, or letters of credit or guarantees issued by, or
deposits in or for the account of, any Lender or (y) imposed on any Lender any
other condition relating to this Agreement or the Advances made by it, and the
result of any event referred to in clause (x) or (y) shall be to increase the
cost to such Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Administrative Agent)
made within 60 days after the first date on which such Lender has actual
knowledge that it is entitled to make demand for payment under this Section
2.09(a), pay to the Administrative Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased
cost; provided, however, that if such Lender fails to so notify the Borrower
within such 60-day period, such increased cost shall commence accruing on such
later date on which the Lender notifies the Borrower; provided further that,
before making any such demand, such Lender agrees to use its best efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such increased
cost and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental or monetary authority in regard to capital adequacy (whether or
not having the force of law) including, without limitation, any guideline
contemplated by the report dated July 1988 entitled "International Convergence
of Capital Management and Capital Standards" issued by the Bank Committee on
Banking Regulations and Supervisory Practices, in any case in which such law,
regulation, guideline or request became effective or was made after the date
hereof, has or would have the effect of reducing the rate of return on the
capital of, or maintained by, such Lender or any corporation controlling such
Lender as a consequence of such Lender's Advances or Commitments hereunder and
other commitments of this type, by increasing the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender, to a level below that which such Lender or any corporation controlling
such Lender could have achieved but for such adoption, effectiveness, change or
compliance (taking into account such Lender's or such corporation's policies
with respect to capital adequacy), then the Borrower shall, from time to time,
pay such Lender, upon demand by such Lender (with a copy of such demand to the
Administrative Agent) made within 60 days after the first date on which such
Lender has actual knowledge that it is entitled to make demand for payment
under this Section 2.09(b) of such reduction in return, such additional amount
as may be specified by such Lender as being sufficient to compensate such
Lender for such reduction in return, to the extent that such Lender reasonably
47
determines such reduction to be attributable to the existence of such Lender's
commitment to lend hereunder; provided, however, that if such Lender fails to
so notify the Borrower within such 60-day period, such amounts shall commence
accruing on such later date on which the Lender notifies the Borrower. A
certificate as to such amounts submitted to the Borrower and the Administrative
Agent by such Lender shall be conclusive and binding for all purposes, absent
manifest error.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, then, upon written
notice by such Lender to the Borrower (with a copy to the Administrative
Agent), (i) each Eurodollar Rate Advance of such Lender will automatically
Convert into a Base Rate Advance and (ii) the obligation under each Facility
under which such Lender has a Commitment to make, or to Convert Base Rate
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist; provided, however, that,
before making any such demand, such Lender shall designate a different
Eurodollar Lending Office if the making of such a designation would avoid the
need for giving such notice and demand, and would not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. For purposes of this
Section 2.09(c), a notice to the Borrower by a Lender shall be effective with
respect to any Eurodollar Rate Advance on the last day of the then current
Interest Period for such Advance; provided, however, that, if it is not lawful
for such Lender to maintain such Advance until the end of the Interest Period
applicable thereto, then the notice to the Borrower shall be effective upon
receipt by the Borrower.
SECTION 2.10. Conversion of Advances. (a) Optional. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than noon (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Section 2.07 and 2.09,
Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
on, and only on, the last day of an Interest Period for such Eurodollar Rate
Advances, and any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be subject to the limitation set forth in Section 2.02(e) and in
an amount not less than $5,000,000. Each such notice of Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
such Advances.
48
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than $5,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(ii) Upon the occurrence and during the continuance of any Event of
Default (or, in the case of any involuntary proceeding described in Section
6.01(e), a Default), (A) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (B) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 11:00 A.M. (New York
City time) on the day when due in U.S. Dollars to the Administrative Agent at
the Administrative Agent's Account in same day funds. The Administrative Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or commitment fees ratably (other than amounts
payable pursuant to Section 2.09 or 2.12) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment of principal, interest or fees owed to such Lender is not made when due
hereunder or, in the case of a Lender under the Note or Notes held by such
Lender, to charge from time to time against any or all of the Borrower's
accounts with such Lender any amount so due.
(c) All computations of interest based on the Eurodollar Rate, the
Base Rate or the Federal Funds Rate and of commitment fees shall be made by the
Administrative Agent, on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or commitment fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
49
(d) Whenever any payment hereunder or under any Note shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender
hereunder or under any Note that the Borrower will not make such payment in
full, the Administrative Agent may assume, or at its option request
confirmation from the Borrower, that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner
in which, such funds are to be applied, the Administrative Agent may, but shall
not be obligated to, elect to distribute such funds in respect of a Facility to
each appropriate Lender ratably in accordance with such Lender's proportionate
share of the principal amount of all outstanding Advances under such Facility,
in repayment or prepayment of such of the outstanding Advances under such
Facility or other Obligations owed to such Lender, and for application to such
principal installments, as the Administrative Agent shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, (i) taxes imposed on its income, and franchise taxes and
backup withholding taxes imposed on it, by the United States or the
jurisdiction under the laws of which such Lender or the Administrative Agent
(as the case may be) is organized or any political subdivision or taxing
authority thereof or therein, (ii) taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Lender's or, in either such
case, the Administrative Agent's principal office or Applicable Lending Office
or any political subdivision or taxing authority thereof or therein and (iii)
United States withholding
50
tax payable with respect to payments hereunder under laws (including, without
limitation any statute, treaty, ruling, determination or regulation) in effect
on the Initial Date with respect to such Lender or the Administrative Agent,
but not excluding any United States withholding tax payable as a result of any
change in such laws occurring after the Initial Date (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note to any Lender or the Administrative Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
of Taxes (including deductions of Taxes applicable to additional sums payable
under this Section 2.12) such Lender or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions of Taxes been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law; provided,
however, that any such Lender shall designate a different Applicable Lending
Office if, in the judgment of such Lender, such designation would avoid the
need for, or reduce the amount of, any Taxes required to be deducted from or in
respect of any sum payable hereunder to such Lender or the Administrative Agent
and would not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.12) paid by such Lender or the Administrative
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto; provided
that, in the event such Lender or the Administrative Agent, as the case may be,
successfully contests the assessment of such Taxes or Other Taxes or any
liability arising therefrom or with respect thereto, such Lender or the
Administrative Agent shall refund, to the extent of any refund thereof made to
such Lender or the Administrative Agent, any amounts paid by the Borrower under
this Section 2.12(c) in respect of such Taxes, Other Taxes or liabilities
arising therefrom or with respect thereto. Each Lender and the Administrative
Agent agree that it will contest such Taxes, Other Taxes or liabilities if (i)
the Borrower furnishes to it an opinion of reputable tax counsel acceptable to
such Lender or the Administrative Agent to the effect that such Taxes or Other
Taxes were wrongfully or illegally imposed and (ii) such Lender or the
Administrative Agent determines, in its sole discretion, that it would not be
disadvantaged or prejudiced in any manner whatsoever as a
51
result of such contest. This indemnification shall be made within 30 days from
the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to
in Section 8.02, appropriate evidence of payment thereof. If no Taxes are
payable in respect of any payment hereunder or under the Notes by the Borrower
from an account or branch outside the United States or on behalf of the
Borrower by a payor that is not a United States person, the Borrower will
furnish to the Administrative Agent, at such address, a certificate from each
appropriate taxing authority, or an opinion of counsel acceptable to the
Administrative Agent, in either case stating that such payment is exempt from
or not subject to Taxes. For purposes of this Section 2.12, the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States and the Administrative Agent, if organized under the laws of a
jurisdiction outside the United States, shall, on or prior to the Initial Date
and from time to time thereafter if requested in writing by the Borrower or the
Administrative Agent (but only so long thereafter as such Lender or the
Administrative Agent remains lawfully able to do so), provide the Borrower and
(in the case of any such Lender other than the Administrative Agent) the
Administrative Agent with two duly completed copies of Internal Revenue Service
form 1001 or 4224, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender or the Administrative
Agent is entitled to benefits under an income tax treaty to which the United
States is a party that reduces the rate of withholding tax on payments under
this Agreement or the Notes or certifying that the income receivable pursuant
to this Agreement or the Notes is effectively connected with the conduct of a
trade or business in the United States.
(f) For any period with respect to which the Administrative Agent or a
Lender has failed to provide the Borrower with the appropriate forms described
in subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which such person was originally required to
provide such forms, or if such forms are otherwise not required under
subsection (e) above), the Administrative Agent or such Lender shall not be
entitled to increased payments or indemnification under subsection (a) or (c)
above with respect to Taxes imposed by the United States; provided, however,
that should the Administrative Agent or a Lender become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as the Administrative Agent or such Lender shall reasonably
request to assist the Lender to recover such Taxes if, in the judgment of the
Borrower such steps would avoid the need for, or reduce the amount of, any
Taxes required to be deducted from or in respect of any sum payable hereunder
to the Administrative Agent or such Lender and would not, in the judgment of
the Borrower, be disadvantageous to the Borrower.
52
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.12 shall survive the payment in full of principal and interest
hereunder and under the Notes.
(h) If a Lender shall change its Applicable Lending Office other than
(i) at the request of the Borrower or (ii) at a time when such change would not
result in this Section 2.12 requiring the Borrower to make a greater payment
than if such change had not been made, such Lender shall not be entitled to
receive any greater payment under this Section 2.12 than such Lender would have
been entitled to receive had it not changed its Applicable Lending Office.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.09 or 2.12) in excess of its ratable share of payments on
account of the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such interests or participating
interests in the Advances owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that, if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with an amount equal
to such Lender's ratable share (according to the proportion of (i) the amount
of such Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing an interest or participating interest from
another Lender pursuant to this Section 2.13 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such interest or participating interest, as the case
may be, as fully as if such Lender were the direct creditor of the Borrower in
the amount of such interest or participating interest, as the case may be.
SECTION 2.14. Removal of Lender. In the event that any Lender demands
payment of costs or additional amounts pursuant to Section 2.09 or Section 2.12
or asserts pursuant to Section 2.09(c) that it is unlawful for such Lender to
make Eurodollar Rate Advances, then (subject to such Lender's right to rescind
such demand or assertion within 10 days after the notice from the Borrower
referred to below) the Borrower may, upon 20 days' prior written notice to such
Lender and the Administrative Agent, elect to cause such Lender to assign its
Advances and Commitments in full to an assignee institution selected by the
Borrower that meets the criteria of an Eligible Assignee and is reasonably
satisfactory to the Administrative Agent, so long as such Lender receives
payment in full in cash of the outstanding principal amount of all Advances
made by it and all accrued and
53
unpaid interest thereon and all other amounts due and payable to such Lender as
of the date of such assignment (including without limitation amounts owing
pursuant to Section 2.09 or 2.12), and in such case such Lender agrees to make
such assignment, and such assignee shall agree to accept such assignment and
assume all obligations of such Lender hereunder, in accordance with Section
8.07.
SECTION 2.15. Defaulting Lender. (a) In the event that, at any one
time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be
required to make any payment hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then the Borrower may, so long as no
Default shall occur or be continuing at such time and to the fullest extent
permitted by applicable law, set-off and otherwise apply the Obligation of the
Borrower to make such payment to or for the account of such Defaulting Lender
against the Obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that the Borrower shall so set-off and otherwise apply
the Obligation of the Borrower to make any such payment against the Obligation
of such Defaulting Lender to make any such Defaulted Advance on any date, the
amount so set-off and otherwise applied by the Borrower shall constitute for
all purposes of this Agreement and the other Loan Documents an Advance by such
Defaulting Lender made on such date under the Facility pursuant to which such
Defaulted Advance was originally required to have been made pursuant to Section
2.01. Such Advance shall be considered, for all purposes of this Agreement, to
comprise part of the Borrowing in connection with which such Defaulted Advance
was originally required to have been made pursuant to Section 2.01. The
Borrower shall notify the Administrative Agent at any time the Borrower reduces
the amount of the Obligation of the Borrower to make any payment otherwise
required to be made by it hereunder or under any other Loan Document as a
result of the exercise by the Borrower of its right set forth in this
subsection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set-off and otherwise applied in respect
of such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by the Borrower to or for the account of
such Defaulting Lender which is paid by the Borrower, after giving effect to
the amount set-off and otherwise applied by the Borrower pursuant to this
subsection (a), shall be applied by the Administrative Agent as specified in
subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
the Administrative Agent, the Collateral Agent or any of the other Lenders and
(iii) the Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting Lender,
then the Administrative Agent may, on its behalf or on behalf of such other
Lenders and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such
Defaulting
54
Lender to the payment of each such Defaulted Amount up to the amount required
to pay such Defaulted Amount. In the event that the Administrative Agent shall
so apply any such amount to the payment of any such Defaulted Amount on any
date, the amount so applied by the Administrative Agent shall constitute for
all purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by
the Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lenders, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lenders and, if the amount
of such payment made by the Borrower shall at such time be insufficient to pay
all Defaulted Amounts owing at such time to the Administrative Agent, the
Collateral Agent and the other Lenders, in the following order of priority:
(i) first, to the Administrative Agent and the Collateral Agent
for any Defaulted Amounts then owing to the Administrative Agent and
the Collateral Agent, ratably in accordance with such respective
Defaulted Amounts then owing to the Administrative Agent and the
Collateral Agent; and
(ii) second, to any other Lenders for any Defaulted Amounts then
owing to such other Lenders, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lenders.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender shall be
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative Agent
the Collateral Agent or any other Lender shall be required to pay or distribute
any amount hereunder or under any other Loan Document to or for the account of
such Defaulting Lender, then the Borrower, the Collateral Agent or such other
Lender shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held
by the Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with Citibank, in the name
and under the control of the Administrative Agent, but subject to the
provisions of this subsection (c). The terms applicable to such account,
including the rate of interest payable with respect to the credit balance of
such account from time to time, shall be Citibank's standard terms applicable
to escrow accounts maintained with it. Any interest credited to such account
from time to time shall be held by the Administrative Agent in
55
escrow under, and applied by the Administrative Agent from time to time in
accordance with the provisions of, this subsection (c). The Administrative
Agent shall, to the fullest extent permitted by applicable law, apply all funds
so held in escrow from time to time to the extent necessary to make any
Advances required to be made by such Defaulting Lender and to pay any amount
payable by such Defaulting Lender hereunder and under the other Loan Documents
to the Administrative Agent, the Collateral Agent or any other Lender, as and
when such Advances or amounts are required to be made or paid and, if the
amount so held in escrow shall at any time be insufficient to make and pay all
such Advances and amounts required to be made or paid at such time, in the
following order of priority:
(i) first, to the Administrative Agent and the Collateral Agent
for any amount then due and payable by such Defaulting Lender to the
Administrative Agent and the Collateral Agent hereunder, ratably in
accordance with such respective amounts then due and payable to the
Administrative Agent and the Collateral Agent;
(ii) second, to any other Lenders for any amount then due and
payable by such Defaulting Lender to such other Lenders hereunder,
ratably in accordance with such respective amounts then due and
payable to such other Lenders; and
(iii) third, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to the Commitment of such
Defaulting Lender.
In the event that such Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at such
time with respect to such Defaulting Lender shall be distributed by the
Administrative Agent to such Defaulting Lender and applied by such Defaulting
Lender to the Obligations owing to such Lender at such time under this
Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies which the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and which the Administrative Agent, the Collateral Agent or any Lender may have
against such Defaulting Lender with respect to any Defaulted Amount.
56
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date. Article II
hereof shall be effective on and as of the date (the "Effective Date"), on
which each of the following conditions precedent shall have been satisfied or
duly waived:
(a) There shall have been no adverse change since June 3, 1996 in
the corporate and legal structure and capitalization of each A
Company, each Designated Operating Company and the Bank, including the
terms and conditions of the charter, bylaws and each class of capital
stock of each such Person and of each agreement or instrument relating
to such structure or capitalization, except as contemplated by
existing consents, amendments and waivers delivered in connection with
the Existing Credit Agreement; the Lenders shall be satisfied with the
corporate and legal structure and capitalization of each of National
Health Care Group Inc., Revlon Guarantor, Revlon Holdings Inc., Revlon
Worldwide Corporation and Revlon, including the terms and conditions
of the charter, by-laws and each class of capital stock of each such
Person and of each agreement or instrument relating to such structure
or capitalization.
(b) Before giving effect to the transactions contemplated by this
Agreement, there shall have occurred no Material Adverse Change since
December 31, 1995 relating to any of the Loan Parties, the FN Parties
and the Designated Operating Companies.
(c) There shall exist no action, suit, investigation, litigation
or proceeding affecting any of the Loan Parties, the FN Parties and
the Designated Operating Companies pending or threatened before any
court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect (in the case of clause (a) of
the definition thereof, the term "Person" shall refer to such Loan
Party, such FN Party or such Designated Operating Company, as the case
may be) or (ii) purports to affect the legality, validity or
enforceability of this Agreement, any Note, any other Loan Document,
any Related Document, any FN Document or the consummation of the
transactions contemplated hereby and thereby.
(d) Nothing shall have come to the attention of the Lenders in
respect of any of the A Companies, the Designated Operating Companies
or the Bank that is inconsistent with or different from in any adverse
respect any of the results of the due diligence investigations of such
Persons conducted in connection with the Original Credit Agreement,
the Second Credit Agreement, the Third Credit Agreement or the
Existing Credit Agreement; the Lenders shall be satisfied with the
results of their due
57
diligence investigation of National Health Care Group Inc., Revlon
Guarantor, Revlon Holdings Inc., Revlon Worldwide Corporation and
Revlon; and the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of
each A Company, each Designated Operating Company or the Bank as they
shall have requested.
(e) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lenders and all accrued expenses of the
Administrative Agent (including the reasonable fees and expenses of
counsel to the Administrative Agent).
(f) The Lenders shall be satisfied that the Borrower has the
ability to service the interest payments in respect of the Facilities.
(g) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall beneficially own at least a majority
of the Voting Stock of Marvel.
(h) The Administrative Agent or the Collateral Agent, as the case
may be, shall have received on or before the Effective Date the
following, each dated as of the Effective Date (unless otherwise
specified), in form and substance satisfactory to the Administrative
Agent (unless otherwise specified) and (except for the Notes) in
sufficient copies for each Lender:
(i) the Tranche A Term Credit Notes to the order of the
Lenders;
(ii) the Tranche B Term Credit Notes to the order of the
Lenders;
(iii) certified copies of the resolutions of the board of
directors of the Borrower and each other Loan Party approving
this Agreement, the Notes and each other Loan Document to which
it is or is to be a party, and of all documents evidencing other
necessary corporate action and governmental approvals, if any,
with respect to this Agreement, the Notes and each other Loan
Document;
(iv) a certificate of the Secretary or an Assistant
Secretary of the Borrower and each other Loan Party certifying
the names and true signatures of the officers of the Borrower and
such other Loan Party authorized to sign this Agreement, the
Notes and each other Loan Document to which they are or are to be
parties and the other documents to be delivered hereunder and
thereunder;
(v) a copy of a certificate of the Secretary of State of the
state of incorporation of the Borrower, each other Loan Party,
each Designated
58
Operating Company and each other A Company, dated reasonably near
the Effective Date, listing the charter of such Person and each
amendment thereto on file in his office and certifying that (A)
such amendments are the only amendments to such Person's charter
on file in his office, (B) such Person has paid all franchise
taxes to the date of such certificate and (C) such Person is duly
incorporated or organized and in good standing under the laws of
such state, and a copy of a certificate of corporate existence of
the Bank, dated reasonably near the Effective Date from the
Office of Thrift Supervision;
(vi) (A) a certificate of each A Company signed on behalf of
such Person by its President or a Vice President and its
Secretary or any Assistant Secretary, dated as of the Effective
Date (the statements made in such certificate shall be true on
and as of the Effective Date), certifying as to (1) the absence
of any amendments to the charter of such Person since the date of
the Secretary of State's certificate referred to in clause (v)
above, (2) the absence of any amendments to the bylaws of such
Person since the date of the certificate in respect of such
bylaws that was delivered to the Administrative Agent pursuant to
the terms of Section 3.01 or 3.02, as the case may be, of the
Original Credit Agreement, (3) the due incorporation and good
standing of such Person as a corporation under the laws of the
relevant state of incorporation, and the absence of any
proceeding for the dissolution or liquidation of such Person, (4)
the truth in all material respects of the representations and
warranties made by such Person contained in the Loan Documents as
though made on and as of the Effective Date and (5) the absence
of any event occurring and continuing, or resulting from the
Effective Date, that constitutes a Default, (B) a certificate of
▇▇▇▇▇▇▇ Guarantor signed on behalf of ▇▇▇▇▇▇▇ Guarantor by its
President or a Vice President and its Secretary or any Assistant
Secretary, dated as of the Effective Date (the statements made in
such certificate shall be true on and as of the Effective Date),
certifying as to (1) the absence of any amendments to the charter
of ▇▇▇▇▇▇▇ since the date of the Secretary of State's certificate
referred to in clause (v) above, (2) the absence of any
amendments to the bylaws of ▇▇▇▇▇▇▇ since the date of the
certificate in respect of such bylaws that was delivered to the
Administrative Agent pursuant to the terms of Sections 3.01 and
3.02 of the Original Credit Agreement and (3) the due
incorporation and good standing of ▇▇▇▇▇▇▇ as a corporation
organized under the laws of the State of Delaware, and the
absence of any proceeding for the dissolution or liquidation of
▇▇▇▇▇▇▇, (C) a certificate of the Borrower signed on behalf of
the Borrower by its President or a Vice President and its
Secretary or any Assistant Secretary, dated as of the Effective
Date (the statements made in such certificate shall be true on
and as of the Effective Date), certifying as to (1) the absence
of any amendments to the charter of Marvel since the date of
59
the Secretary of State's certificate referred to in clause (v)
above, (2) the absence of any amendments to the bylaws of Marvel
since the date of the certificate in respect of such bylaws that
was delivered to the Administrative Agent pursuant to the terms
of Sections 3.01 and 3.02 of the Original Credit Agreement, and
(3) the due incorporation and good standing of Marvel as a
corporation organized under the laws of the State of Delaware,
and the absence of any proceeding for the dissolution or
liquidation of Marvel, (D) a certificate of New World Guarantor
signed on behalf of New World Guarantor by its President or a
Vice President and its Secretary or any Assistant Secretary,
dated as of the Effective Date (the statements made in such
certificate shall be true on and as of the Effective Date),
certifying as to (1) the absence of any amendments to the charter
of New World since the date of the Secretary of State's
certificate referred to in clause (v) above, (2) the absence of
any amendments to the bylaws of New World since the date of the
certificate in respect of such bylaws that was delivered to the
Administrative Agent pursuant to the terms of Section 3.02 of the
Original Credit Agreement and (3) the due incorporation and good
standing of New World as a corporation organized under the laws
of the State of Delaware, and the absence of any proceeding for
the dissolution or liquidation of New World, and (E) a
certificate of C&F Guarantor signed on behalf of C&F Guarantor by
its President or a Vice President and its Secretary or any
Assistant Secretary, dated as of the Effective Date (the
statements made in such certificate shall be true on and as of
the Effective Date), certifying as to (1) the absence of any
amendments to the charter of MCG since the date of the Secretary
of State's certificate referred to in clause (v) above, (2) the
absence of any amendments to the bylaws of MCG since the date of
the certificate in respect of such bylaws that was delivered to
the Administrative Agent pursuant to the terms of Section 3.01 of
the Third Credit Agreement and (3) the due incorporation and good
standing of MCG as a corporation organized under the laws of the
State of Delaware, and the absence of any proceeding for the
dissolution or liquidation of MCG;
(vii) a certificate of Mafco to the effect (A) that no
information provided by Mafco or any Subsidiary of Mafco to the
Administrative Agent or any Lender in connection with this
Agreement, as such information has been amended, supplemented or
superseded by any other information delivered to the same parties
receiving such information contained or contains any material
misstatement of fact or omitted or omits to state any material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading
except that, as to any financial model included therein, such
certificate shall be limited to a statement that such model was
prepared in good faith by Mafco's or such Subsidiary's management
based on
60
assumptions believed to be reasonable when made and may be
further qualified by a statement to the effect that because
assumptions as to future results are inherently subject to
uncertainty and contingencies beyond Mafco's or such Subsidiary's
control, actual results of Mafco or such Subsidiary may be higher
or lower, (B) the Mafco Guaranty is in full force and effect on
the Effective Date, (C) that other than the agreements referenced
in Section 3.01(h)(xi), the charter documents of each A Company
and each FN Party, the Loan Documents and the Related Documents,
there is no other agreement, contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or
affecting any A Company or any FN Party that imposes any material
Obligation or any material restriction on any A Company or any FN
Party, (D) that the agreements referenced in Section 3.01(h)(xi)
are the only agreements, contracts, loan agreements, indentures,
mortgages, deeds of trust, leases or other instruments (1)
evidencing Debt of any Designated Operating Company or any of
their Subsidiaries outstanding on the Effective Date, (2)
governing the terms of Debt of any Designated Operating Company
or any of their Subsidiaries outstanding on the Effective Date,
or (3) containing any commitment or other agreement by any Person
to extend credit that would constitute Debt to any Designated
Operating Company or any of their Subsidiaries, in each case that
imposes or will impose material Obligations or material
restrictions on any Designated Operating Company and its
Subsidiaries taken as a whole and (E) that there is no other
agreement or contract binding on or affecting any Designated
Operating Company or any of their Subsidiaries that contains
provisions that would restrict any Loan Party from performing or
that would impair the ability of any Loan Party to perform, any
of the obligations of such Loan Party under the Loan Documents;
(viii) the Mafco Security Agreement in substantially the
form of Exhibit D-1 duly executed by Mafco, the Borrower Security
Agreement in substantially the form of Exhibit D-2 duly executed
by the Borrower, and the Borrower Parent Security Agreement in
substantially the form of Exhibit D-3 duly executed by Borrower
Parent, in each case together with evidence that all other action
that the Administrative Agent may deem necessary or desirable in
order to perfect and protect the Liens created by such Security
Agreement have been taken, together with:
(1) acknowledgement copies or stamped receipt copies of
proper amendments to the financing statements previously
filed in connection with each Security Agreement; and
61
(2) evidence that all other action that the
Administrative Agent may deem necessary or desirable in
order to perfect and protect the Liens created by each
Security Agreement;
(ix) the Mafco Guaranty in substantially the form of Exhibit
E-1, duly executed by Mafco, the Borrower Parent Guaranty in
substantially the form of Exhibit E-2, duly executed by Borrower
Parent, the C&F Guaranty in substantially the form of Exhibit
E-3, duly executed by the C&F Guarantor, the Cigar Guaranty in
substantially the form of Exhibit E-4, duly executed by Cigar
Guarantor, the ▇▇▇▇▇▇▇ Guaranty in substantially the form of
Exhibit E-5, duly executed by ▇▇▇▇▇▇▇ Guarantor, the Flavors
Guaranty in substantially the form of Exhibit E-6, duly executed
by Flavors Guarantor, and the New World Guaranty in substantially
the form of Exhibit E-7, duly executed by New World Guarantor.
(x) the C&F Pledge Agreement in substantially the form of
Exhibit F-1, duly executed by C&F Guarantor, the Cigar Pledge
Agreement in substantially the form of Exhibit F-2, duly executed
by Cigar Guarantor, the ▇▇▇▇▇▇▇ Pledge Agreement in substantially
the form of Exhibit F-3, duly executed by ▇▇▇▇▇▇▇ Guarantor, the
▇▇▇▇▇▇▇ Worldwide Pledge Agreement in substantially the form of
Exhibit F-4, duly executed by ▇▇▇▇▇▇▇ Worldwide, the Flavors
Pledge Agreement in substantially the form of Exhibit F-5, duly
executed by Flavors Guarantor, the Four Star Pledge Agreement in
substantially the form of Exhibit F-6, duly executed by Four
Star, the Mafco Pledge Agreement in substantially the form of
Exhibit F-7, duly executed by Mafco, the M&F Pledge Agreement in
substantially the form of Exhibit F-8, duly executed by M&F, the
New ▇▇▇▇▇▇▇ Pledge Agreement in substantially the form of Exhibit
F-9, duly executed by New ▇▇▇▇▇▇▇, the New World Pledge Agreement
in substantially the form of Exhibit F-10, duly executed by New
World Guarantor and the Second ▇▇▇▇▇▇▇ Pledge Agreement in
substantially the form of Exhibit F-11, duly executed by ▇▇▇▇▇▇▇,
together with:
(1) acknowledgment copies or stamped receipt copies of
proper amendments to the financing statements previously
filed in connection with each Pledge Agreement, in form and
substance satisfactory to the Administrative Agent,
(2) completed requests for information, dated on or
before the Effective Date, listing the financing statements
referred to in clause (1) above,
62
(3) in the case of the Second ▇▇▇▇▇▇▇ Pledge Agreement,
copies of the News Corp. Contract, and
(4) evidence that all other action that the
Administrative Agent may deem necessary or desirable in
order to perfect and protect the Liens created by the each
Pledge Agreement has been taken;
(xi) a certificate of Mafco to the effect that, other than
the agreements delivered to the Administrative Agent pursuant to
Section 3.01(g)(xii)(B) and Section 3.02(i)(xi)(B) of the
Original Credit Agreement and other than as specified in and
delivered pursuant to such certificate and the certificate of
Mafco delivered pursuant to Section 3.01(f)(x) of the Second
Credit Agreement, Section 3.01(f)(ix) of the Third Credit
Agreement and Section 3.01(f)(x) of the Existing Credit
Agreement, there is no other contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument (1) evidencing
Debt of any A Company, (2) governing the terms of Debt of any A
Company, or (3) containing any commitment or other agreement by
any Person to extend credit that would constitute Debt to any A
Company or any Designated Operating Company or any of its
Subsidiaries, in each case that imposes any material obligation
or any material restriction on any A Company or any Designated
Operating Company and its Subsidiaries, taken as a whole;
(xii) such financial, business and other information
regarding each Loan Party and their Subsidiaries as the Lenders
shall have reasonably requested, including, without limitation,
information as to possible contingent liabilities, tax matters,
environmental matters, obligations under ERISA and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, annual financial statements of the Bank dated December
31, 1995, interim financial statements of the Bank dated the end
of the most recent fiscal quarter for which financial statements
are available, pro forma financial statements as to the Borrower,
and forecasts prepared by management of the Bank, in form and
substance satisfactory to the Lenders, of balance sheets, income
statements and cash flow statements of the Bank on a quarterly
basis for the term of the "Tranche A Revolving Credit Facility"
under the Revolving Credit Facility;
(xiii) certified copies of (A) an amendment and restatement
(each in form and substance satisfactory to the Lenders) of the
voting trust agreement relating to the capital stock of the
Borrower, the Borrower Parent, C&F Guarantor, Cigar Guarantor,
▇▇▇▇▇▇▇ Guarantor, Flavors Guarantor, New World Guarantor, FG
Guarantor and First Gibraltar and (B) the Revolving Credit
Agreement;
63
(xiv) copies of the Equity Contribution Agreement, duly
executed by the Borrower and Borrower Parent, in substantially
the form of Exhibit G and the First Gibraltar Loan Agreement,
duly executed by First Gibraltar and Borrower Parent, in
substantially the form of Exhibit H;
(xv) a letter, in form and substance satisfactory to the
Administrative Agent, from Mafco to Ernst & Young, independent
certified public accountants, advising such accountants that the
Administrative Agent and the Lenders have relied upon the
financial statements of ▇▇▇▇▇▇▇, New World and MCG in determining
whether to enter into the Loan Documents and have been authorized
to exercise all rights of Mafco to require such accountants to
disclose any and all financial statements and any other
information of any kind that they may have with respect to such
Persons and their Subsidiaries and directing such accountants to
comply with any reasonable request of the Administrative Agent or
any Lender for such information;
(xvi) a letter, in form and substance satisfactory to the
Administrative Agent, from the Bank to KPMG Peat Marwick,
independent certified public accountants, advising such
accountants that the Administrative Agent and the Lenders have
relied upon the financial statements of the Bank in determining
whether to enter into the Loan Documents and have been authorized
to exercise all rights of the Bank to require such accountants to
disclose any and all financial statements and any other
information of any kind that they may have with respect to the
Bank and its Subsidiaries and directing such accountants to
comply with any reasonable request of the Administrative Agent or
any Lender for such information;
(xvii) favorable opinions of counsel to Mafco reasonably
satisfactory to the Lenders, in form and substance reasonably
satisfactory to the Lenders;
(xviii) a favorable opinion of Shearman & Sterling, counsel
for the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent; and
(xix) such other information, approvals, opinions or other
documents as the Administrative Agent may reasonably request.
SECTION 3.02. Conditions Precedent to the Tranche A Term
Borrowing. The obligation of each Lender to make its Tranche A Term Advance
shall be subject to the satisfaction of the following further conditions
precedent:
64
(a) The transactions contemplated by the News Corp. Contract shall
have been consummated and Mafco and its Subsidiaries shall have
received the News Corp. Preferred ADRs;
(b) A registration statement relating to the News Corp. Preferred
ADRs that are pledged as Collateral and meeting the requirements
set out in Section 5.8 of the News Corp. Contract shall be in
effect;
(c) The terms of the proposed restructuring of the capital structure
of Marvel and the proposed acquisition of Toy Biz shall be
acceptable to the Tranche A Required Lenders (including
Citibank);
(d) The Tranche A Required Lenders (including Citibank) shall be
satisfied that (i) the requisite lenders in each of the Marvel
bank lending syndicates shall have approved (to the extent
required) the proposed restructuring of the capital structure of
Marvel and the proposed acquisition of Toy Biz and (ii) the
holders of the Debt of each of Marvel III Holdings Inc., Marvel
(Parent) Holdings Inc. and Marvel Holdings Inc. shall have
approved (to the extent required) the proposed restructuring of
the capital structure of Marvel and the proposed acquisition of
Toy Biz;
(e) Marvel shall have consummated the acquisition of Toy Biz in a
manner acceptable to the Tranche A Required Lenders (including
Citibank);
(f) (i) The Lenders shall be satisfied with all provisions and
arrangements relating to the lien and security interest of the
Collateral Agent in the New Marvel Shares and (ii) the
Collateral Agent shall have received certificates representing
the News Corp. Preferred ADRs pursuant to the terms of the New
World Pledge Agreement, accompanied by undated stock powers
executed in blank;
(g) The Revlon Inclusion Date shall have occurred; and
(h) The Borrower shall have delivered to the Administrative Agent an
appropriately completed Federal Reserve Form U-1 for each
Lender.
SECTION 3.03. Conditions Precedent to the Tranche B Term Borrowings.
The obligation of each Lender to make a Tranche B Term Advance on the occasion
of each Tranche B Term Borrowing (including the initial Tranche B Term
Borrowing) shall be subject to the further condition precedent that (a) the
Tranche B Required Lenders (including Citibank) are satisfied with the proposed
use of the proceeds of such Tranche B Term
65
Borrowing and (b) in the case of the initial Tranche B Term Borrowing, the
Revlon Inclusion Date shall have occurred; provided, however, that if a Tranche
B Term Borrowing occurs on the same date as the Tranche A Term Borrowing, the
condition set forth in clause (a) shall be deemed to be satisfied if the
conditions set forth in Section 3.02 are satisfied or otherwise waived.
SECTION 3.04. Conditions Precedent to Each Borrowing. The obligation
of each Lender to make an Advance on the occasion of each Borrowing (including
the initial Borrowing), shall be subject to the further conditions precedent
that on the date of such Borrowing (a) the following statements shall be true
(and each of the giving of the applicable Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that both on the date of such
notice and on the date of such Borrowing such statements are true):
(i) The representations and warranties contained in the Loan
Documents are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such
representations and warranties were true, correct and complete in all
material respects on and as of such earlier date; and
(ii) No event has occurred and is continuing, or would result
from such Borrowing or issuance or from the application of the
proceeds therefrom, which constitutes a Default,
and (b) the Administrative Agent shall have received such other certificates,
opinions and other documents as any Lender through the Administrative Agent may
reasonably request in order to confirm (i) the accuracy of the Borrower's
representations and warranties, (ii) the Borrower's timely compliance with the
terms, covenants and agreements set forth in this Agreement, and (iii) the
absence of any Default.
SECTION 3.05. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender
prior to the initial Borrowing specifying its objection thereto and such Lender
shall not have made available to the Administrative Agent such Lender's ratable
portion of such Borrowing.
66
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation, (ii) is duly qualified and in good standing as a
foreign corporation in each other jurisdiction in which it owns or
leases property or in which the conduct of its business requires it to
so qualify or be licensed except where the failure to so qualify or be
licensed would not have a Material Adverse Effect (with respect to
clause (a) of the definition thereof, the term "Person" shall refer to
the Borrower) and (iii) has all requisite corporate power and
authority to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted. All of
the outstanding capital stock of the Borrower has been validly issued,
is fully paid and non-assessable and is owned by the Borrower Parent
free and clear of all Liens except for the Liens created by the
Collateral Documents.
(b) Set forth on Schedule II hereto is a complete and accurate
list relating to the Borrower, showing as of the date hereof the
jurisdiction of its incorporation, the number of shares of each class
of capital stock authorized, and the number outstanding, on the date
hereof and the percentage of the outstanding shares of each such class
owned (directly or indirectly) by Borrower Parent and the number of
shares covered by all outstanding options, warrants, rights of
conversion or purchase and similar rights at the date hereof.
(c) The execution, delivery and performance by the Borrower of
this Agreement, the Notes, each Loan Document and each Related
Document to which it is or is to be a party and the consummation by
the Borrower of the transactions contemplated hereby, are within the
Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene the Borrower's
charter or by-laws, (ii) violate any law (including, without
limitation, the Exchange Act), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach
of, or constitute a default under, any loan agreement, contract,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries (other than
any Subsidiaries of the Borrower) or any of its or their properties,
the effect of which conflict, breach or default is reasonably likely
to have a Material Adverse Effect (with respect to clause (a) of the
definition thereof, the term "Person"
67
shall refer to the Borrower) or (iv) except for the liens created by
the Collateral Documents, the voting trust agreements (other than the
voting trust agreements relating to the capital stock of FN Holdings
and FN Parent) referred to in Sections 3.01(g)(xvi) and 3.02(i)(xv) of
the Original Credit Agreement, the Amended and Restated Voting Trust
Agreement dated as of December 16, 1996 among The Bank of New York,
the Cigar Guarantor, C&F Guarantor and the Collateral Agent, the
Amended and Restated Voting Trust Agreement dated as of December 16,
1996 among The Bank of New York, the Flavors Guarantor, C&F Guarantor
and the Collateral Agent, the Amended and Restated Voting Trust
Agreement dated as of December 16, 1996 among Trans Network Insurance
Services Inc., FG Guarantor, The Bank of New York and the Collateral
Agent, the Second Amended and Restated Voting Trust Agreement dated as
of December 16, 1996 among FG Guarantor, First Gibraltar, The Bank of
New York and the Collateral Agent and the voting trust agreement to be
entered into (on or prior to the Revlon Inclusion Date) by Revlon
Finance Corporation, Revlon Guarantor, The Bank of New York and the
Collateral Agent, result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of any Loan
Party or any of its Subsidiaries (other than any Subsidiaries of the
Borrower). The Borrower is not in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination
or award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or
breach of which would be reasonably likely to have a Material Adverse
Effect (with respect to clause (a) of the definition thereof, the term
"Person" shall refer to the Borrower).
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for (i) the due execution, delivery and performance
by the Borrower of this Agreement or the Notes or any other Loan
Document or any Related Document to which it is or is to be a party or
for the consummation of the transactions contemplated hereby, (ii) the
grant by the Borrower of the Liens granted by it pursuant to the
Collateral Documents, (iii) the perfection or maintenance of the Liens
created by the Collateral Documents (including the first priority
nature thereof) or (iv) the exercise by the Administrative Agent or
any Lender of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents, except
for the filing of financing statements in accordance with Sections
3.01 and 3.02 of the Original Credit Agreement, Section 3.01(f)(vii)
and (viii) of the Second Credit Agreement, Section 3.01(f)(vii) of the
Third Credit Agreement, Section 3.01(f)(ix) of the Existing Credit
Agreement and the filing of amendments to financing statements in
accordance with Section 3.01 of this Agreement and except as may be
required in connection with the disposition of any portion of the
Collateral by laws affecting the offering and sale of securities
generally; provided, however, that no representation or warranty is
made as to any consent of, authorization, approval or other action by,
or notice to or filing
68
with, any banking agency or regulatory body applicable to the
Administrative Agent, the Collateral Agent, the Syndication Agent or
the Documentation Agent.
(e) This Agreement has been, and each of the Notes, each other
Loan Document to which the Borrower is a party when delivered
hereunder will have been, duly executed and delivered by the Borrower.
This Agreement is, and each of the Notes and each other Loan Document
to which the Borrower is a party when delivered hereunder will be, the
legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforceability of creditor's rights
generally.
(f) The Consolidated and consolidating balance sheets of Marvel
III and its Subsidiaries as at December 31, 1995, and the related
Consolidated and consolidating statements of income and cash flows of
Marvel III and its Subsidiaries for the fiscal year then ended,
accompanied, in the case of the aforementioned Consolidated balance
sheets and related Consolidated statements of income and cash flows,
by an opinion of Ernst & Young, independent public accountants, and
the Consolidated and consolidating balance sheets of Marvel III and
its Subsidiaries as at September 30, 1996, and the related
Consolidated and consolidating statements of income and cash flows of
Marvel III and its Subsidiaries for the nine months then ended, duly
certified by the chief financial officer of Marvel III, copies of
which have been furnished to each Lender, fairly present, subject, in
the case of said balance sheets as at September 30, 1996, and said
statements of income and cash flows for the three months then ended,
to year-end audit adjustments, the Consolidated and consolidating
financial condition of Marvel III and its Subsidiaries as at such
dates and the Consolidated and consolidating results of the operations
of Marvel III and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles
applied on a consistent basis.
(g) There is no pending or threatened action, proceeding,
governmental investigation or arbitration affecting any Loan Party,
the Bank or any of their Subsidiaries (other than any Subsidiary of
the Borrower ) before any court, governmental agency or arbitrator,
which is reasonably likely to have a Material Adverse Effect (with
respect to clause (a) of the definition thereof, the term "Person"
shall refer to such Loan Party or the Bank, as the case may be) or
that purports to affect the legality, validity or enforceability of
this Agreement, any Note, any other Loan Document or any Related
Document or the consummation of the transactions contemplated hereby
or thereby.
(h) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock and no
proceeds of any Advance will
69
be used to purchase or carry any Margin Stock (other than the New
Marvel Shares), or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
(i) No proceeds of any Advance will be used to acquire any equity
security of a class that is registered pursuant to Section 12 of the
Exchange Act (other than the New Marvel Shares).
(j) The Borrower and its ERISA Affiliates are in compliance in
all material respects with the applicable provisions of ERISA and the
Code with respect to each Plan thereof. No ERISA Event has occurred or
is reasonably expected to occur with respect to any Plan of the
Borrower or any of its ERISA Affiliates. The amount of all Unfunded
Pension Liabilities under all Plans of the Borrower and its ERISA
Affiliates does not exceed $60,000,000. None of the Borrower or any of
its ERISA Affiliates has made contributions or incurred any Withdrawal
Liability to any Multiemployer Plan within the past five years, and it
is not reasonably expected that such contributions shall be made or
required or that such liability shall be incurred in any such case in
amounts or under circumstances that would be reasonably likely to
result in a material liability to the Borrower or any of its ERISA
Affiliates. Schedule B (Actuarial Information) to the 1995 annual
report (Form 5500 Series) for each Plan of the Borrower and each of
its ERISA Affiliates, copies of which have been filed with the
Internal Revenue Service and furnished or made available to the
Lenders, is complete and accurate in all material respects and fairly
presents the funding status of such Plan, and since the date of such
Schedule B there has been no material adverse change in such funding
status. The obligations of the Borrower and its Subsidiaries for
post-retirement benefits to be provided under Plans which are welfare
benefit plans (as defined in Section 3(l) of ERISA) are not reasonably
likely to have a Material Adverse Effect (in the case of clause (a) of
the definition thereof, the term "Person" shall refer to the
Borrower).
(k) The operations and properties of the Borrower are in
substantial compliance with all Environmental Laws, all necessary
Environmental Permits have been obtained and are in effect for the
operations and properties of the Borrower and the Borrower is in
compliance with all such Environmental Permits, except, as to all of
the above, where the failure to do so would not be reasonably likely
to have a Material Adverse Effect (in the case of clause (a) of the
definition thereof, the term "Person" shall refer to the Borrower);
and no circumstances exist that are reasonably likely to (i) form the
basis of an Environmental Action against the Borrower or any of its
properties or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that would, in the case of either (i) or (ii) above,
be reasonably likely to have a Material
70
Adverse Effect (in the case of clause (a) of the definition thereof,
the term "Person" shall refer to the Borrower).
(l) The Borrower has filed, has caused to be filed or has been
included in all tax returns (Federal, state, local and foreign)
required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties.
(m) The Borrower is not an "investment company," or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances,
nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation
or order of the Securities and Exchange Commission thereunder.
(n) The Borrower is Solvent.
(o) Set forth on Schedule III hereto is a complete and accurate
list of all Debt (other than intercompany Debt, Debt under the Loan
Documents and Debt under the Revolving Credit Agreement and the "Loan
Documents" referred to therein) of the Borrower as of the date hereof,
showing as of the date hereof the principal amount outstanding
thereunder; and there is no other agreement, contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting the Borrower that imposes any material Obligation or
material restriction on the Borrower.
(p) Set forth on Schedule IV hereto is a complete and accurate
list of all Investments held by the Borrower as of the date hereof,
showing as of the date hereof the amount, obligor or issuer and
maturity, if any, thereof.
SECTION 4.02. Representations and Warranties Applicable to Marvel.
During the Marvel Inclusion Period, the representations and warranties
contained in Section 4.01(g), (k), (l) and (m) and in the last sentence of
Section 4.01(c) shall be deemed to also cover Marvel and its Subsidiaries as if
such Persons were explicitly referred to in such Sections.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and, during the Marvel
Inclusion Period, cause Marvel and each of its Subsidiaries to comply,
in all material respects with all applicable laws, rules, regulations
and orders (such compliance to include, without limitation, paying
before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property except to
the extent contested in good faith), the failure to comply with which
would, individually or in the aggregate, be reasonably likely to have
a Material Adverse Effect (with respect to clause (a) of the
definition thereof, the term "Person" shall refer to the Borrower).
(b) Compliance with Environmental Laws. Comply and, during the
Marvel Inclusion Period, cause Marvel and each of its Subsidiaries and
all lessees and all other Persons occupying its properties to comply,
in all material respects, with all Environmental Laws and
Environmental Permits applicable to its operations and properties;
obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause, during the Marvel
Inclusion Period, Marvel and each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that the
Borrower and, during the Marvel Inclusion Period, Marvel and its
Subsidiaries shall not be required to undertake any such cleanup,
removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances.
(c) Maintenance of Insurance. Maintain, and, during the Marvel
Inclusion Period, cause Marvel and each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies
or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower, Marvel or
such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and, during the Marvel Inclusion Period, cause Marvel to
preserve and maintain, its
72
corporate existence, rights (charter and statutory) and franchises;
provided, however, that neither the Borrower nor Marvel shall be
required to preserve any of its rights or franchises if the Board of
Directors of the Borrower (or, in the case of Marvel, the executive
committee of the Board of Directors of Marvel) shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Borrower or Marvel, as the case may be, and that the
loss thereof is not disadvantageous in any material respect to the
Borrower, Marvel or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, upon reasonable prior notice permit the Administrative Agent or
any of the Lenders or any agents or representatives thereof, to the
extent reasonably requested to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and, during the Marvel Inclusion Period,
Marvel and its Subsidiaries, and to discuss the affairs, finances and
accounts of the Borrower and, during the Marvel Inclusion Period,
Marvel and its Subsidiaries with any of their officers or directors
and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause, during the Marvel
Inclusion Period, Marvel and each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall
be made of all financial transactions and the assets and business of
the Borrower, Marvel and each such Subsidiary to the extent necessary
to permit the preparation of the financial statements required to be
delivered hereunder.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause, during the Marvel Inclusion Period, Marvel and each of its
Subsidiaries to maintain and preserve, all of its properties that are
used or useful in the conduct of its business in good working order
and condition, ordinary wear and tear excepted.
(h) Termination of Financing Statements. Upon the request of the
Administrative Agent, and at the expense of the Borrower, within 10
days after such request, furnish to the Administrative Agent proper
termination statements on Form UCC-3 covering such financing
statements as the Administrative Agent may reasonably request that
were listed in the completed requests for information referred to in
Section 3.01(h)(x)(4).
(i) Collateral Account. Maintain the Borrower Collateral Account
and the L/C Cash Collateral Account with Citibank pursuant to the
terms of the Borrower Security Agreement.
(j) Reporting Requirements. Furnish to the Lenders through the
Administrative Agent:
73
(i) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, Consolidated balance sheets of the Borrower
and its Subsidiaries as of the end of such quarter and
Consolidated statements of earnings, cash flows and stockholders'
equity of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with
the end of such quarter, certified (subject to normal year-end
audit adjustment and the absence of footnotes) on behalf of the
Borrower by the chief financial officer of the Borrower;
(ii) as soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its
Subsidiaries, containing financial statements for such year
certified in a manner reasonably acceptable to the Marvel IV
Required Lenders by Ernst & Young or other independent public
accountants reasonably acceptable to the Marvel IV Required
Lenders;
(iii) together with each delivery of financial statements
pursuant to clauses (i) and (ii) above, a certificate executed on
behalf of the Borrower by a senior officer of the Borrower
stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto;
(iv) as soon as possible and in any event within five days
after knowledge of the occurrence of each Default continuing on
the date of such statement, a statement executed on behalf of the
Borrower by the chief financial officer of the Borrower setting
forth details of such Default and the action which the Borrower
has taken and proposes to take with respect thereto;
(v) as soon as available and in any event no later than
February 1 of each fiscal year of the Bank, forecasts prepared by
management of the Bank, in form satisfactory to the
Administrative Agent, of balance sheets and income statements on
a quarterly basis for the term of the Facilities;
(vi) promptly after the sending or filing thereof, copies of
any filings and statements that the Borrower or any Subsidiary of
the Borrower files with the Securities and Exchange Commission or
any national securities exchange;
(vii) promptly and in any event within (A) thirty days after
the Borrower knows or has reason to know that any ERISA Event
with respect to the Borrower or any of its ERISA Affiliates has
occurred, a statement
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describing such ERISA Event and the action, if any, that the
Borrower or such ERISA Affiliate proposes to take with respect
thereto, (B) thirty days either after receipt thereof by the
Borrower or after the Borrower knows or has reason to know of the
receipt thereof by any of its ERISA Affiliates from the sponsor
of a Multiemployer Plan of the Borrower or any of its ERISA
Affiliates, a copy of each notice received by any such Person
concerning the imposition of Withdrawal Liability upon such
Person, the reorganization or termination of such Multiemployer
Plan, or the amount of the liability incurred, or that may be
incurred, by the Borrower or any of its ERISA Affiliates in
connection with any such event and (C) ten Business Days either
after receipt thereof by the Borrower or after the Borrower knows
or has reason to know of the receipt thereof by any of its ERISA
Affiliates, copies of each notice from the PBGC stating its
intention to terminate any Plan of the Borrower or any of its
ERISA Affiliates or to have a trustee appointed to administer any
such Plan, provided that in the case of any event described in
clauses (A), (B) or (C) hereof, such event shall have a Material
Adverse Effect (with respect to clause (a) of the definition
thereof, the term "Person" shall refer to the Borrower);
(viii) in the event of any change in GAAP from the date of
the annual financial statements referred to in Section 4.01(f)
and upon delivery of any financial statement required to be
furnished under clauses (i) or (ii) of this Section 5.01(j), a
statement of reconciliation conforming any information contained
in such financial statement with GAAP as in effect on the date of
the annual financial statements referred to in Section 4.01(f);
(ix) promptly upon any officer of the Borrower obtaining
knowledge thereof, written notice of (A) the institution or
non-frivolous threat of any action, suit, proceeding,
governmental investigation or arbitration against or affecting
the Borrower or any of its Subsidiaries or any property of the
Borrower or any of its Subsidiaries (any such action, suit,
proceeding, investigation or arbitration being a "Proceeding") or
(B) any material development in any Proceeding that is already
pending, where such Proceeding or development has not previously
been disclosed by the Borrower hereunder and would be reasonably
likely to have a Material Adverse Effect (in the case of clause
(a) of the definition of Material Adverse Effect, the term
"Person" shall refer to the Borrower); together in each case with
such other information as any Lender through the Administrative
Agent may reasonably request to enable the Lenders and their
counsel to evaluate such matters;
(x) promptly after the furnishing thereof, copies of any
statement or report furnished to any other holder of the
securities of the Borrower or,
75
during the Marvel Inclusion Period, of Marvel or of any
Subsidiary of Marvel pursuant to the terms of any indenture, loan
or credit or similar agreement and not otherwise required to be
furnished to the Lenders pursuant to any other clause of this
Section 5.01(j);
(xi) promptly upon receipt thereof, copies of all notices,
requests and other documents received by any Loan Party or any
Subsidiary of any Loan Party under or pursuant to any Related
Document and, from time to time upon request by the
Administrative Agent, such information and reports regarding the
Related Documents as the Administrative Agent may reasonably
request;
(xii) within 10 days after receipt, copies of all Revenue
Agent Reports (Internal Revenue Service Form 886), or other
written proposals of the Internal Revenue Service, that propose,
determine or otherwise set forth positive adjustments to the
Federal income tax liability of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of
which the Borrower is a member aggregating $5,000,000 or more;
(xiii) promptly, and in any event within five Business Days
after the due date (with extensions) for filing the final Federal
income tax return in respect of each taxable year, a certificate
of the Borrower (a "Tax Certificate"), signed on behalf of the
Borrower by the President or the chief financial officer of the
Borrower, stating that the common parent of the affiliated group
(within the meaning of Section 1504(a)(1) of the Internal Revenue
Code) of which the Borrower is a member has paid to the Internal
Revenue Service or other taxing authority the full amount that
such affiliated group is required to pay in respect of Federal
income tax for such year;
(xiv) promptly after the occurrence thereof, notice of any
condition or occurrence on any property of the Borrower or,
during the Marvel Inclusion Period, Marvel or any Subsidiary of
Marvel that results in a material noncompliance by the Borrower,
Marvel or any of Marvel's Subsidiaries with any Environmental Law
or Environmental Permit or would be reasonably likely to (i) form
the basis of an Environmental Action against the Borrower, Marvel
or any of Marvel's Subsidiaries or any such property that would
be reasonably likely to have a Material Adverse Effect (in the
case of clause (a) of the definition of Material Adverse Effect,
the term "Person" shall refer to the Borrower) or (ii) cause any
such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law or
Environmental Permit or would be reasonably likely to (i) form
the basis of an Environmental Action against the Borrower, Marvel
or any of Marvel's
76
Subsidiaries or such property that could have a Material Adverse
Effect (in the case of clause (a) of the definition of Material
Adverse Effect, the term "Person" shall refer to the Borrower);
(xv) promptly after any deposit in the Borrower Collateral
Account, a certificate signed on behalf of the Borrower by the
president or chief financial officer of the Borrower, stating the
amount of such deposit and the source of the funds of such
deposit, together with a schedule in form and substance
reasonably satisfactory to the Administrative Agent setting forth
in reasonable detail the computations and other information on
which the amount and source of such deposit were determined; and
(xvi) such other information respecting the condition
(financial or otherwise), operations, assets or business of the
Borrower or any of its Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
(k) Look-Forward Certificate. With respect to each deposit (other
than of income or proceeds of Collateral Investments) to the
Collateral Accounts (other than the Second Mafco Collateral Account
and the L/C Cash Collateral Account), the Borrower shall, within 15
Business Days prior to the date of such deposit or within five
Business Days after the date of such deposit, deliver a certificate
(the "Look- Forward Certificate") to the Administrative Agent stating
that the pro forma amounts available to be loaned by First Gibraltar
to Borrower Parent, together with amounts received by Mafco pursuant
to or in connection with any Related Document, will not be less than
$8 million in any calendar quarter and will not be insufficient to pay
interest on the "Advances" then outstanding under the Revolving Credit
Agreement, together with a schedule in form reasonably satisfactory to
the Administrative Agent setting forth in reasonable detail the
computations, assumptions and other information on which such
certification is based) (taking into account, among other things, the
Bank's performance to date, the quality of the Bank's assets and the
presence of any agreement with the Bank's regulators including, but
not limited to, an agreement relating to capital, asset quality,
dividends or management); provided, however, that, notwithstanding the
foregoing, if a Look-Forward Certificate has been delivered to the
Administrative Agent within 90 days prior to a deposit in the Mafco
Collateral Account of amounts paid under or in connection with any
Related Document or Asset Sale, the Borrower may, instead of
delivering a Look-Forward Certificate to the Administrative Agent,
deliver a certificate (a "Deposit Certificate") to the Administrative
Agent, within 15 Business Days prior to the date of such deposit or
within five Business Days after the date of such deposit, stating that
(x) there has been no adverse change in (1) the financial condition of
each of the Bank and Mafco and its Subsidiaries, taken as a whole,
since the date of the last Look-Forward
77
Certificate that was delivered to the Administrative Agent or (2) the
projections contained in such Look-Forward Certificate and (y) no
event has occurred and is continuing which constitutes an Event of
Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
(l) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates (other than the
Borrower or any of its Subsidiaries) on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person that is not an Affiliate; provided, however, that for purposes
of this Section 5.01(l), the term "Affiliate" shall not include any
officer or director of the Borrower or such Subsidiary, as the case
may be, who does not possess directly or indirectly the power to vote
5% or more of the Voting Stock of the Borrower or its Subsidiaries;
provided further that nothing in this Section 5.01(l) shall restrict
the performance by the parties to (i) the Tax Sharing Agreement dated
as of April 22, 1993 between Mafco and Marvel Holdings Inc., (ii) the
Tax Sharing Agreement dated as of October 20, 1993 between Mafco and
Marvel (Parent) Holdings Inc. and (iii) the Amended and Restated Tax
Sharing Agreement dated as of January 1, 1994 among Mafco, Marvel III
Holdings Inc., Marvel and certain Subsidiaries of Marvel, in each
case, as the same may be amended, modified or otherwise supplemented
from time to time, of their respective obligations thereunder.
(m) Mafco Tax Group. Maintain its status as a member of the
affiliated group (within the meaning of Section 1504(a)(1) of the
Code) of which Mafco is the common parent.
(n) Net Cash Proceeds. Deposit all of the Net Cash Proceeds
received by the Borrower from and after the Effective Date from Asset
Sales (other than Net Cash Proceeds required to be applied to prepay
or repay the Facilities or the Debt outstanding under the Revolving
Credit Agreement) in the Mafco Collateral Account.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will
not:
(a) Liens, Etc. Create or suffer to exist any Lien, upon or with
respect to any of its properties, whether now owned or hereafter
acquired, or sign or file under the Uniform Commercial Code of any
jurisdiction, a financing statement that names the Borrower as debtor
or sign any security agreement authorizing any secured party
thereunder to file such financing statement, or assign any right to
receive income, other than the following Liens: (i) Liens created by
the Loan Documents or the "Loan Documents" referred to in the
Revolving Credit Agreement; (ii) the Liens
78
described on Schedule V provided that in the event any property
subject to any such Lien is released from such Lien, such released
property may not thereafter be subjected to any Lien other than Liens
created by the Loan Documents or the "Loan Documents" referred to in
the Revolving Credit Agreement; (iii) mechanics', materialmen's,
carriers' and similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30
days or which are being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained;
(iv) Liens for taxes, assessments and governmental charges or levies
not yet due and payable or which are being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained; and (v) judgment or other similar Liens, provided that
there shall be no period of more than 10 consecutive days during which
a stay of enforcement of the related judgment shall not be in effect.
(b) Lease Obligations. Create, incur, assume or suffer to exist
any obligations as lessee (i) for the rental or hire of real or
personal property in connection with any sale and leaseback
transaction, or (ii) for the rental or hire of other real or personal
property of any kind under leases or agreements to lease having an
original term of one year or more.
(c) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it.
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of any assets or grant any option or other right to purchase,
lease or otherwise acquire any assets except (i) dispositions of
obsolete, worn out or surplus property disposed of in the ordinary
course of business, (ii) a transfer of any ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇
held by the Borrower to ▇▇▇▇▇▇▇ Worldwide and (iii) sales, leases,
transfers or other dispositions of assets for cash and for no less
than fair market value, provided that, in the case of an Asset Sale,
the Borrower complies with the provisions of Section 5.01(o) in
respect of the Net Cash Proceeds of such Asset Sale.
(e) Dividends, Repurchases, Etc. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any
of its capital stock or any warrants, rights or options to acquire
such capital stock, now or hereafter outstanding, return any capital
to its stockholders as such, make any distribution of assets, capital
stock, warrants, rights, options, obligations or securities to its
stockholders as such, except that the Borrower may (i) declare and
deliver dividends and distributions payable only in common stock or
warrants, rights or options to acquire common stock, (ii) declare and
pay cash dividends to its stockholders in an amount not to exceed the
amount released by the Collateral Agent from the Borrower Collateral
Account pursuant to the provisions of Section 7 of the Borrower
Security Agreement
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or the proceeds of the Advances and the proceeds of borrowings under
the Revolving Credit Agreement and (iii) declare and pay cash
dividends to its stockholders in an amount not to exceed the Net Cash
Proceeds received by Mafco and its Subsidiaries from Asset Sales on
and after the Effective Date solely to permit the compliance by Mafco
and its Subsidiaries with the requirements of Section 5.01(n) and
Section 7(q) of the Mafco Guaranty.
(f) Investments. Make or hold any Investment in any Person, other
than (i) Investments by the Borrower and its Subsidiaries in Cash
Equivalents, (ii) a loan by the Borrower to Mafco of up to
$650,000,000 out of the proceeds of the Advances and the proceeds of
borrowings under the Revolving Credit Agreement, (iii) Investments by
the Borrower in Mafco or any of its Subsidiaries in an amount not to
exceed the sum of the amount released by the Collateral Agent from the
Borrower Collateral Account pursuant to the provisions of Section 7 of
the Borrower Security Agreement plus the aggregate amount of any
Investments in the Borrower made by Mafco or any of its Subsidiaries
out of the proceeds from the amount released by the Collateral Agent
from the Mafco Collateral Accounts pursuant to Section 7 of the Mafco
Security Agreement, (iv) Investments existing on the date hereof, (v)
contributions by the Borrower of common stock of Marvel to Marvel III
Holdings Inc., Marvel Holdings Inc. or Marvel (Parent) Holdings Inc.,
(vi) Investments by the Borrower in the ▇▇▇▇▇▇▇ Worldwide ▇▇▇▇▇, (vii)
Investments by the Borrower in the New Marvel Shares and (viii)
Investments in Mafco in an amount not to exceed the Net Cash Proceeds
received by Mafco and its Subsidiaries from Asset Sales on and after
the Effective Date solely to permit the compliance by Mafco and its
Subsidiaries with the requirements of Section 5.01(n) and Section 7(q)
of the Mafco Guaranty.
(g) Change in Nature of Business. Engage in any business other
than the ownership of the capital stock of Marvel III Holdings Inc.
(h) Accounting Changes. Make or permit any change in accounting
policies affecting (i) the presentation of financial statements or
(ii) reporting practices, except in either case as required or
permitted by GAAP.
(i) Debt. Create, incur, assume or suffer to exist any Debt other
than: (i) Debt under the Loan Documents and under the Revolving Credit
Agreement and the "Loan Documents" referred to therein and (ii)
endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business.
(j) Charter Amendments. Amend its certificate of incorporation or
bylaws except that the Borrower may change its name to Mafco Finance
Corp.
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(k) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms
of, any Debt, other than the prepayment of the Advances in accordance
with the terms of this Agreement, or amend, modify or change in any
manner any term or condition of any Debt or any agreement relating to
such Debt other than (i) mandatory and optional prepayments of the
Debt under the Revolving Credit Agreement pursuant to the terms
thereof, (ii) prepayments of Debt required by Section 7(q) of the
Mafco Guaranty and (iii) amendments, modifications and changes to the
terms and conditions of the Revolving Credit Agreement pursuant to its
terms.
(l) Negative Pledge. Enter into or suffer to exist any agreement
prohibiting or conditioning the creation or assumption of any Lien
upon any of its property or assets other than (i) in favor of the
Administrative Agent and the Lenders, (ii) any prohibition or
condition existing on the date hereof or (iii) any prohibition or
condition contained in the Revolving Credit Agreement or the "Loan
Documents" referred to therein.
(m) Partnerships. Become a general partner in any general or
limited partnership.
(n) Capital Expenditures. Make any Capital Expenditures.
(o) Issuance of Capital Stock. Issue any capital stock or
warrants, rights or options to acquire such capital stock.
(p) Payment Restrictions. Create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of
any kind on the ability of the Borrower to (i) pay dividends or make
any other distributions on any of the Borrower's capital stock, (ii)
make loans or advances to Mafco or any subsidiary of Mafco or (iii)
repay or prepay any Debt owed by the Borrower other than any (x)
consensual encumbrances or restrictions existing on the date hereof
and (y) other consensual encumbrances or restrictions that are no more
onerous than those encumbrances and restrictions in existence on the
date hereof with respect to the Borrower.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of, or interest
on, any Advance or any fees payable to the Administrative Agent or any
Lender hereunder, in each case when the same becomes due and payable,
or any Loan Party shall fail to make any other payment hereunder
within five Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party or any
FN Party or under or in connection with any Loan Document or FN
Document shall prove to have been incorrect in any material respect
when made or confirmed; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(h), 5.01(i), 5.01(j),
5.01(k), 5.01(m), 5.01(n), or 5.02, (ii) Mafco shall fail to perform
or observe any term, covenant or agreement contained in Section 7(i),
7(j), 7(l), 7(o), 7(p), 7(q) or 8 of the Mafco Guaranty, (iii) ▇▇▇▇▇▇▇
Guarantor shall fail to perform or observe any term, covenant or
agreement contained in Section 7(i), 7(k), 7(m) or 8 of the ▇▇▇▇▇▇▇
Guaranty, (iv) Borrower Parent shall fail to perform or observe any
term, covenant or agreement contained in Section 7(j) or 8 of the
Borrower Parent Guaranty, (v) New World Guarantor shall fail to
perform or observe any term, covenant or agreement contained in
Section 7(h), 7(j), 7(k) or 8 of the New World Guaranty, (vii) C&F
Guarantor shall fail to perform or observe any term, covenant or
agreement contained in Section 7(h), 7(j), 7(k) or 8 of the C&F
Guaranty, (vii) Cigar Guarantor shall fail to perform or observe any
term, covenant or agreement contained in Section 7(h), 7(j), 7(k) or 8
of the Cigar Guaranty, (viii) Flavors Guaranty shall fail to perform
or observe any term, covenant or agreement contained in Section 7(h),
7(j), 7(k) or 8 of the Flavors Guaranty, (ix) on and after the Revlon
Inclusion Date, Revlon Guarantor shall fail to perform or observe any
term, covenant or agreement contained in Section 7(h), 7(j) or 8 of
the Revlon Guaranty or (x) any Loan Party shall fail to perform or
observe any other term, covenant or agreement contained in any Loan
Document on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender;
or
(d) (i) Any A Company, any Designated Operating Company or the
Bank shall fail to pay any principal of or premium or interest on any
Debt which is
82
outstanding in a principal amount of at least $10,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of such A
Company, such Designated Operating Company or the Bank (as the case
may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or
(ii) any other event shall occur or condition shall exist (other than
(x) during the period from the date hereof through June 30, 1997, the
breach by Marvel of certain financial covenants for the fiscal quarter
ended September 30, 1996, for the fiscal quarter ending December 31,
1996, for the fiscal quarter ending March 31, 1997 and for the fiscal
quarter ending June 30, 1997 under its senior bank credit agreements
and (y) in the case of the Specified Holding Company Debt, any event
or condition relating to Marvel, Marvel III Holdings Inc., Marvel
(Parent) Holdings Inc. or Marvel Holdings Inc.) under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt; or (iii)
any such Debt shall be declared to be due and payable, or required to
be prepaid (other than by a regularly scheduled required prepayment),
redeemed, purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or (iv) in the case of any
Specified Holding Company Debt, any event or condition relating to
Marvel, Marvel III Holdings Inc., Marvel (Parent) Holdings Inc. or
Marvel Holdings Inc. shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate
the maturity of such Debt; or
(e) Any A Company, any Designated Operating Company (other than
Marvel) or the Bank shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any A
Company, any Designated Operating Company (other than Marvel) or any
FN Party seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 45 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian
or other similar official for, it or for any substantial part of its
property) shall occur; or any A Company, any Designated
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Operating Company (other than Marvel) or the Bank shall take any
corporate action to authorize any of the actions set forth above in
this Section 6.01(e); or
(f) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any A Company, any Designated
Operating Company or the Bank and 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 or dismissed or bonded pending appeal; provided, however,
that any such judgment or order shall not be an Event of Default under
this Section 6.01(f) if and for so long as (i) the entire amount of
such judgment or order is covered by a valid and binding policy of
insurance between the defendant and the insurer covering payment
thereof and (ii) such insurer, which shall be rated at least "A" by
A.M. Best Company, has been notified of, and has not disputed the
claim made for payment of the amount of such judgment or order; or
(g) Any non-monetary judgment or order shall be rendered against
any A Company, any Designated Operating Company or the Bank that is
reasonably likely to have a Material Adverse Effect (in the case of
clause (a) of the definition thereof, the term "Person" shall refer to
the Borrower) and 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 pending appeal; or
(h) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (or in the event of his incompetence or
death, his estate, heirs, executor, administrator, committee or other
personal representative) shall cease to beneficially own (i) at least
80% of the Voting Stock of any A Company, any Designated Operating
Company (other than Marvel, New World and Revlon) or the Bank, (ii)
during the Marvel Inclusion Period, at least a majority of the voting
power of the Voting Stock of Marvel, (iii) prior to the consummation
of the New World Acquisition, at least a majority of the voting power
of the Voting Stock of New World or (iv) on and after the Revlon
Inclusion Date, at least a majority of the voting power of the Voting
Stock of Revlon, in each case other than as a result of an Asset Sale
pursuant to which all of the common stock held by Mafco and its
Subsidiaries in any A Company, any Designated Operating Company or the
Bank (or, in any such case, in such Person's direct or indirect
parent) is sold and the Net Cash Proceeds of such Asset Sale is
applied in accordance with the terms of the Loan Documents and the
"Loan Documents" referred to in the Revolving Credit Agreement; or
(i) Any ERISA Event shall have occurred with respect to Mafco or
any of its ERISA Affiliates and such ERISA Event, together with any
and all other ERISA
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Events that shall have occurred with respect to Mafco or any of its
ERISA Affiliates, is reasonably likely to have a Material Adverse
Effect (with respect to clause (a) of the definition thereof, the term
"Person" shall refer to Mafco); or
(j) Mafco or any of its ERISA Affiliates shall have been notified
by the sponsor of a Multiemployer Plan of the Borrower or any of its
ERISA Affiliates that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by Mafco and its
ERISA Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $10,000,000 or requires payments exceeding
$10,000,000 per annum; or
(k) Mafco or any of its ERISA Affiliates shall have been notified
by the sponsor of a Multiemployer Plan of the Borrower or any of its
ERISA Affiliates that such Multiemployer Plan is in reorganization or
is being terminated, within the meaning of Title IV of ERISA, and as a
result of such reorganization or termination the aggregate annual
contributions of Mafco and its ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or
will be increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans immediately
preceding the plan year in which such reorganization or termination
occurs by an amount exceeding $10,000,000; or
(l) Any provision of any Loan Document, Related Document or FN
Document after delivery thereof pursuant to the Original Credit
Agreement, the Second Credit Agreement, the Third Credit Agreement,
the Existing Credit Agreement, Section 3.01 hereof or pursuant to the
definition of "Revlon Inclusion Date" shall for any reason cease
(other than pursuant to the terms thereof) to be valid and binding on
or enforceable against any party to it, or any party to any such
document shall so state in writing; or
(m) Any Collateral Document after delivery thereof pursuant to
the Original Credit Agreement, the Second Credit Agreement, the Third
Credit Agreement, the Existing Credit Agreement, Section 3.01 hereof
or the definition of "Revlon Inclusion Date" shall for any reason
(other than pursuant to the terms thereof) cease to create a valid and
perfected first priority Lien on the Collateral purported to be
covered thereby; or
(n) Any provision of the FN Holdings Debt Document, the FN
Holdings New Debt Document, the Second New FN Holdings Debt Document,
the FN Holdings Preferred Stock or the FN Parent Debt Document shall
be terminated, amended, waived or otherwise modified without the
consent of the Marvel IV Required Lenders or any provision of the
First Gibraltar Charter Document shall be
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amended or modified without the consent of the Marvel IV Required
Lenders (other than as permitted by the terms of the Mafco Guaranty);
or
(o) The Bank fails to maintain the minimum capital and leverage
ratios required as of the Effective Date for the Bank to be considered
as a "well capitalized" "savings association" pursuant to 12 U.S.C.
Section 1831o and 12 C.F.R. Section 565, as such Sections may be
amended, reenacted or redesignated from time to time; or
(p) (i) The common stock of any Designated Operating Company
(other than New World, Marvel and Revlon) trading on the date hereof
shall cease to be publicly traded on the New York Stock Exchange; (ii)
at any time prior to the consummation of the New World Acquisition,
the common stock of New World shall cease to be publicly traded on the
New York Stock Exchange or the Nasdaq National Market System; (iii) at
any time prior to the later to occur of the Term Credit Agreement
Termination Date and the "Tranche B Termination Date" under the
Revolving Credit Agreement, News Corp. Preferred ADRs shall cease to
be publicly traded; (iv) during the Marvel Inclusion Period, the
common stock of Marvel shall cease to be publicly traded on the New
York Stock Exchange or the Nasdaq National Market System or (v) on and
after the Revlon Inclusion Date, the common stock of Revlon shall
cease to be publicly traded on the New York Stock Exchange;
(q) ▇▇▇▇▇▇ ▇. ▇▇▇▇ shall beneficially or legally own shares of
the common stock of FN Holdings other than shares of the Class B
Common Stock; or
(r) Any Person party to the Related Documents shall fail to
directly deposit in the Mafco Collateral Account (i) a payment to
Mafco under any Related Document (which payment is required to be made
and is permitted under each indenture and credit agreement to which
such Person is a party) or (ii) a loan to Mafco of the proceeds of any
payment received by such Person under any Related Document (which loan
is required to be made and is permitted under each indenture and
credit agreement to which such Person is a party) and such failure
shall remain unremedied for three Business Days; or
(s) (i) Mafco shall fail to furnish to the Administrative Agent
and the Lenders on or prior to December 1, 1997, a business plan
setting forth, in respect of all of the Debt of Mafco and its
Subsidiaries (other than Debt of the Designated Operating Companies,
the Bank, Revlon, Marvel, Marvel III Holdings Inc., Marvel (Parent)
Holdings Inc., Marvel Holdings Inc., Meridian Sports Incorporated and
their respective Subsidiaries) that is scheduled to come due during
calendar year 1998 and 1999, the method by which all such Debt shall
be repaid, prepaid, redeemed or refinanced on a timely basis,
including without limitation, through Asset Sales,
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issuances of Debt, issuances of equity or contributions to capital, in
each case in reasonable detail as to the identity of the assets to be
sold, the issuer of the Debt or equity and such other details as the
Marvel IV Required Lenders shall request or (ii) the Marvel IV
Required Lenders shall not have approved the form and substance of
such business plan on or prior to December 31, 1997;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitment of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided, however, that, in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances shall automatically be terminated and (B) the Notes,
all such interest and all such amounts shall automatically become and be due
and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes each of the Administrative Agent and the Collateral 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 Administrative
Agent and the Collateral Agent, as the case may be, by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), each of the
Administrative Agent and the Collateral Agent 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 the Required Lenders, and such instructions
shall be binding upon all Lenders and all holders of Notes; provided, however,
that neither the Administrative Agent nor the Collateral Agent shall be
required to take any action which exposes the Administrative Agent or the
Collateral Agent, as the case may be, to personal liability or which is
contrary to this Agreement or applicable law. Each of the Administrative Agent
and the Collateral Agent agrees to give to
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each Lender prompt notice of each notice and other report given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's and Collateral Agent's Reliance,
Etc. Neither the Administrative Agent nor the Collateral Agent nor any of their
respective directors, officers, agents or employees, shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each of the
Administrative Agent and the Collateral Agent: (i) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), 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;
(iii) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with the Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of the Loan
Documents on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with the
Loan Documents or any other instrument or document furnished pursuant hereto;
and (vi) shall incur no liability under or in respect of the Loan Documents by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under the Loan Documents as any other Lender
and may exercise the same as though it were not the Administrative Agent or the
Collateral Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include Citibank hereunder in its individual capacity.
Citibank and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank were not the Administrative
Agent or the Collateral Agent and without any duty to account therefor to the
Lenders.
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SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon either the Administrative Agent or
the Collateral Agent or any other Lender and based on the financial statements
referred to in Section 4.01(f) and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent, the Collateral Agent 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.
SECTION 7.05. Indemnification. (a) Each Lender severally agrees to
indemnify each of the Administrative Agent and the Collateral Agent (in each
case to the extent not promptly reimbursed by the Borrower) from and against
such Lender's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Administrative Agent or
the Collateral Agent, as the case may be, in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative
Agent or the Collateral Agent, as the case may be, under the 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 the Administrative
Agent's or the Collateral Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent and the Collateral Agent promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees
and expenses of counsel) payable by the Borrower under Section 8.04, to the
extent that the Administrative Agent or the Collateral Agent, as the case may
be, is not promptly reimbursed for such costs and expenses by the Borrower. For
purposes of this Section 7.05(a), the Lenders' respective ratable shares of any
amount shall be determined, at any time, according to the sum of (a) the
aggregate principal amount of the Advances outstanding at such time and owing
to the respective Lenders and (b) their respective unused Tranche A Term
Commitments and unused Tranche B Commitments at such time. In the event that
any Defaulted Advance shall be owing by any Defaulting Lender at any time, such
Lender's Commitment with respect to the Facility under which such Defaulted
Advance was required to have been made shall be considered to be unused for
purposes of this Section 7.05(a) to the extent of the amount of such Defaulted
Advance. The failure of any Lender to reimburse the Administrative Agent or the
Collateral Agent promptly upon demand for its ratable share of any amount
required to be paid by the Lender to the Administrative Agent or the Collateral
Agent, as the case may be, as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse the Administrative Agent or the
Collateral Agent, as the case may be, for its ratable share of such amount, but
no Lender shall be responsible for the failure of any other Lender to reimburse
the Administrative Agent or the Collateral Agent, as the case may be, for such
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other Lender's ratable share of such amount. Without prejudice to the survival
of any other agreement of any Lender hereunder, the agreement and obligations
of each Lender contained in this Section 7.05(a) shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the other Loan Documents.
SECTION 7.06. Successor Administrative Agent and Collateral Agent.
Each of the Administrative Agent and the Collateral Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may
be removed at any time with or without cause by, in the case of the
Administrative Agent, the Required Lenders and, in the case of the Collateral
Agent, the Marvel IV Required Lenders. Upon any such resignation or removal,
the Required Lenders or the Marvel IV Required Lenders shall have the right to
appoint, with the consent of the Borrower, a successor Administrative Agent or
Collateral Agent, respectively, which shall be a Lender, or if no Lender
consents to act as Administrative Agent or Collateral Agent, as the case may
be, hereunder, an institution that would be permitted to be an Eligible
Assignee hereunder. If no successor Administrative Agent or Collateral Agent,
as the case may be, shall have been so appointed by the Required Lenders or the
Marvel IV Required Lenders, as the case may be, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's or
Collateral Agent's giving of notice of resignation or the Required Lenders' or
the Marvel IV Required Lenders' removal of the retiring Administrative Agent or
Collateral Agent, then the retiring Administrative Agent, or Collateral Agent,
as the case may be, may, on behalf of the Lenders, appoint a successor
Administrative Agent or Collateral Agent, as the case may be, which shall be a
commercial bank that is acceptable to the Borrower (which shall not
unreasonably withhold its approval). Upon the acceptance of any appointment as
Administrative Agent or Collateral Agent, as the case may be, thereunder by a
successor Administrative Agent or Collateral Agent, as the case may be, such
successor Administrative Agent or Collateral Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent or Collateral Agent, as the case may be, and the
retiring Administrative Agent or Collateral Agent, as the case may be, shall be
discharged from its duties and obligations under the Loan Documents. After any
retiring Administrative Agent's or Collateral Agent's resignation or removal
hereunder as Administrative Agent or Collateral Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent or Collateral Agent, as the case
may be.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Marvel IV Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each of the Lenders (other than any Lender
which is, at such time, a Defaulting Lender) and the Revolving Credit Agreement
Lenders (other than any Revolving Credit Agreement Lender which is, at such
time, a "Defaulting Lender" under the Revolving Credit Agreement), do any of
the following: (i) waive any of the conditions specified in Section 3.01 or
3.02, (ii) change the definition of the term " Marvel IV Required Lenders",
(iii) release any material portion of the Collateral or permit the creation,
incurrence, assumption or existence of any Lien on any material portion of the
Collateral other than (A) releases of any material portion of the Collateral or
the creation, incurrence, assumption or existence of any such Lien in
connection with Asset Sales (which shall include, for purposes of this Section
8.01, sales, monetizations or other disposals of the News Corp. Preferred ADRs
and the New Marvel Shares) the Net Cash Proceeds of which are applied as
contemplated by the Loan Documents and the "Loan Documents" under the Revolving
Credit Agreement, (B) releases of the News Corp. Preferred ADRs and New Marvel
Shares pursuant to the terms of the Loan Documents and the "Loan Documents"
under the Revolving Credit Agreement and (C) the Liens created by the
Collateral Documents and the Liens permitted by Section 5.02(a), Section 8(a)
of the Borrower Parent Guaranty, Section 8(a) of the ▇▇▇▇▇▇▇ Guaranty, Section
8(a) of the Mafco Guaranty, Section 8(a) of the C&F Guaranty, Section 8(a) of
the Cigar Guaranty, Section 8(a) of the Flavors Guaranty, Section 8(a) of the
New World Guaranty and Section 8(a) of the Revlon Guaranty, (iv) amend this
Section 8.01, (v) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations, (vi) reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder or (vii)
postpone any date fixed for any mandatory reduction in the Commitments or for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder or amend Section 2.03 or 2.05(b) (other than Section
2.05(b)(viii)); provided further, that no change to the definition of the term
"Required Lenders" shall be made unless in writing and signed by each of the
Lenders (other than any Lender which is, at such times a Defaulting Lender)
provided, further that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders and Revolving
Credit Agreement Lenders required above to take such action, affect the rights
or duties of the Administrative Agent under this Agreement or any Note;
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Collateral Agent in addition to the Lenders
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and Revolving Credit Agreement Lenders required above to take such action,
affect the rights or duties of the Collateral Agent under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at c/o MacAndrews and
Forbes Holdings Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary, if to any Financial Institution at its Domestic Lending Office on
Schedule I-A hereto; if to any other Lender, at the address specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Administrative Agent or the Collateral Agent, at its address at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ___________, or, as to the
Borrower, the Administrative Agent or the Collateral Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower, the
Administrative Agent and the Collateral Agent. All such notices and
communications shall be effective (i) when received, if mailed or delivered or
telecopied (including machine acknowledgment), or (ii) when delivered to the
telegraph company, confirmed by telex answerback or delivered to the cable
company, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II or VII shall not be effective until
received by the Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent or the Collateral Agent to exercise, and no
delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.04. Costs; Expenses. (a) The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent and the Collateral Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of the Loan Documents and
the other documents to be delivered hereunder (including, without limitation,
(A) all due diligence, transportation, computer, duplication, appraisal, audit
and insurance expenses and fees and expenses of consultants engaged with the
prior consent of the Borrower (which consent shall not be unreasonably
withheld) and (B) the reasonable fees and out-of-pocket expenses of counsel for
the Administrative Agent with respect thereto, with respect to advising the
Administrative Agent and the Collateral Agent as to their respective rights and
responsibilities, or the protection or preservation of rights or interests,
under the Loan Documents, with respect to negotiations with the Borrower or
with other creditors of the Borrower arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims
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in, monitoring or otherwise participating in any bankruptcy, insolvency or
other similar proceeding affecting creditors' rights generally and any
proceeding ancillary thereto). The Borrower further agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Administrative Agent, the
Collateral Agent and the Lenders in connection with the enforcement of the Loan
Documents and the other documents to be delivered hereunder, whether in action,
suit, litigation, any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally or otherwise (including, without
limitation, the reasonable fees (including the allocated costs of internal
counsel) and reasonable expenses of counsel for the Administrative Agent, the
Collateral Agent and each Lender with respect thereto) and expenses in
connection with the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of any Eurodollar Rate Advance is made
by the Borrower to or for the account of a Lender other than on the last day of
the Interest Period for such Advance, as a result of a payment or Conversion
pursuant to Section 2.09(c) or 2.10, acceleration of the maturity of the Notes
pursuant to Section 6.01 or for any other reason, the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or expenses
which it may reasonably incur as a result of such payment, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(c) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent and each Lender and each of their affiliates and their
officers, directors, trustees, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (or in connection with the preparation for a defense of) any
investigation, litigation or proceeding arising out of, related to or in
connection with this Agreement and the transactions contemplated hereby,
whether or not an Indemnified Party is a party thereto, whether or not the
transactions contemplated hereby are consummated, whether or not any such
claim, investigation, litigation or proceeding is brought by the Borrower or
any other person and whether or not such Indemnified Party is a Lender at such
time) except (i) to the extent such claim, damage, loss, liability or expense
(x) is found in a final, non-appealable judgment by a court of competent
jurisdiction (a "Final Judgment") to have resulted from such Indemnified
Party's gross negligence or willful misconduct or (y) arises from any legal
proceedings commenced against any Lender by any other Lender (in its capacity
as such and not as Administrative Agent, Collateral Agent, Documentation Agent
or Syndication Agent), and (ii) in the case of any litigation brought by the
Borrower (A) seeking a judgment against any Indemnified Party for any wrongful
act or omission of such Indemnified Party and (B) in which a Final
93
Judgment is rendered in the Borrower's favor against such Indemnified Party,
the provisions of this paragraph will not be available to provide
indemnification for any damage, loss, liability or expense incurred by such
Indemnified Party in connection with such litigation described in clause (i) or
in connection with any claim for which Final Judgment is rendered in the
Borrower's favor in a litigation described in clause (ii) of this Section
8.04(c).
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set-off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any and all of the
obligations of the Borrower to such Lender now or hereafter existing under this
Agreement and the Note or Notes held by such Lender, whether or not such Lender
shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application shall be made by
such Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application; provided further that no Lender shall
exercise any such right of set-off or any other right of set-off without the
prior consent of the Administrative Agent. The rights of each Lender under this
Section 8.05 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Financial
Institution that such Financial Institution has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Administrative Agent and the Required Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Borrower pursuant to Section 2.14, will assign to one or
more banks or other entities all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a uniform, and not
a varying, percentage of all rights and obligations under and in respect of all
of the Facilities; (ii) the amount of the Commitment of the assigning Lender
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 be less than $5,000,000 and
94
shall be an integral multiple of $1,000,000 in excess thereof, or shall be an
assignment to another Lender or an assignment of all of the assigning Lender's
rights and obligations hereunder and under the Notes, (iii) each such
assignment shall be to another Lender, an Affiliate of the assigning Lender or
to an Eligible Assignee, (iv) each such assignment made as a result of a demand
by the Borrower pursuant to Section 2.14 shall be arranged by the Borrower
after consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations
made concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to Section 2.14 unless and until
such Lender shall have received one or more payments from either the Borrower
or one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement, (vi)
the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,000 from the assignee and
(vii) no such assignments shall be permitted without the consent of the
Administrative Agent and the Borrower (such consent not to be unreasonably
withheld). Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms
95
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01(f) and such other documents
and information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the Administrative Agent, the
Collateral Agent, such assigning Lender 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; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes each of the Administrative Agent and the
Collateral Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent
or the Collateral Agent, as the case may be, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
under each Facility to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent, and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes a new Note or Notes to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it under a Facility pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of the
assigning Lender in an amount equal to such Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 or A-2, as appropriate.
96
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Borrower,
the Administrative Agent, the Collateral Agent 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 and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure
by the Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce or postpone any date fixed for payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf
of the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree pursuant to an
agreement substantially in the form of Exhibit I to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Governing Law; Submission to Jurisdiction. (a) This
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York
City, and any appellate court thereof, in any action or proceeding arising out
of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted
97
by law, in such Federal court. Each of the parties hereto agrees that 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. Subject to the foregoing and to paragraph (c) below, nothing
in this Agreement shall affect any right that any party hereto may otherwise
have to bring any action or proceeding relating to this Agreement against any
other party hereto in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court and the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) The Borrower agrees that service of process may be made on the
Borrower by personal service of a copy of the summons and complaint or other
legal process in any such suit, action or proceeding, or by registered or
certified mail (postage prepaid) to the address of the Borrower specified in
Section 8.02, or by any other method of service provided for under the
applicable laws in effect in the State of New York.
SECTION 8.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE DOCUMENTATION AGENT, THE
SYNDICATION AGENT AND THE LENDERS IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE
DOCUMENTATION AGENT, THE
SYNDICATION AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MARVEL IV HOLDINGS INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
CITIBANK, N.A.,
as Administrative Agent and
Collateral Agent
By
---------------------------------
Name:
Title:
NATIONSBANC CAPITAL MARKETS, INC.,
as Documentation Agent
By
---------------------------------
as Documentation Agent
CREDIT SUISSE,
as Syndication Agent
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
SYNDICATION AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MARVEL IV HOLDINGS INC.
By
---------------------------------
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and
Collateral Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
NATIONSBANC CAPITAL MARKETS, INC.,
as Documentation Agent
By
---------------------------------
as Documentation Agent
CREDIT SUISSE,
as Syndication Agent
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
SYNDICATION AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MARVEL IV HOLDINGS INC.
By
---------------------------------
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and
Collateral Agent
By
---------------------------------
Name:
Title:
NATIONSBANC CAPITAL MARKETS, INC.,
as Documentation Agent
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
as Documentation Agent
CREDIT SUISSE,
as Syndication Agent
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
SYNDICATION AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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.
MARVEL IV HOLDINGS INC.
By
---------------------------------
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and
Collateral Agent
By
---------------------------------
Name:
Title:
NATIONSBANC CAPITAL MARKETS, INC.,
as Documentation Agent
By
---------------------------------
as Documentation Agent
CREDIT SUISSE,
as Syndication Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Member of Senior Management
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
BANK OF AMERICA ILLINOIS,
as Managing Agent
By /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
---------------------------------
Name: L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
Title: Managing Director
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By
---------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as Managing Agent
By
---------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
as Managing Agent
By
---------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By /s/ Kunduck Moon
---------------------------------
Name: Kunduck Moon
Title: Managing Director
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By
---------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as Managing Agent
By
---------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
as Managing Agent
By
---------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By /s/
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By
---------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as Managing Agent
By
---------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
as Managing Agent
By
---------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ASP
THE FUJI BANK, LIMITED,
as Managing Agent
By
---------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
as Managing Agent
By
---------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION,
as Managing Agent
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY
INC, as Managing Agent
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Managing Agent
By
---------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as Managing Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President & Manager
FINANCIAL INSTITUTIONS
----------------------
BANK OF AMERICA ILLINOIS
By /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
---------------------------------
Name: L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
Title: Managing Director
CITIBANK, N.A.
By
---------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
---------------------------------
Name:
Title:
CREDIT SUISSE
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION
By
---------------------------------
Name:
Title:
FINANCIAL INSTITUTIONS
----------------------
BANK OF AMERICA ILLINOIS
By
---------------------------------
Name:
Title:
CITIBANK, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-In-Fact
CREDIT LYONNAIS NEW YORK BRANCH
By
---------------------------------
Name:
Title:
CREDIT SUISSE
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION
By
---------------------------------
Name:
Title:
FINANCIAL INSTITUTIONS
----------------------
BANK OF AMERICA ILLINOIS
By
---------------------------------
Name:
Title:
CITIBANK, N.A.
By
---------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION
By
---------------------------------
Name:
Title:
FINANCIAL INSTITUTIONS
----------------------
BANK OF AMERICA ILLINOIS
By
---------------------------------
Name:
Title:
CITIBANK, N.A.
By
---------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
---------------------------------
Name:
Title:
CREDIT SUISSE
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Member of Senior Management
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
ING (U.S.) CAPITAL CORPORATION
By
---------------------------------
Name:
Title:
FINANCIAL INSTITUTIONS
----------------------
BANK OF AMERICA ILLINOIS
By
---------------------------------
Name:
Title:
CITIBANK, N.A.
By
---------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
---------------------------------
Name:
Title:
CREDIT SUISSE
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
ING (U.S.) CAPITAL CORPORATION
By /s/ Kunduck Moon
---------------------------------
Name: Kunduck Moon
Title: Managing Director
NATIONSBANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate
PILGRIM AMERICA PRIME RATE TRUST
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
---------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
---------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
---------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By /s/ ▇▇▇▇▇▇ Tiffen
---------------------------------
Name: ▇▇▇▇▇▇ Tiffen
Title: Senior Vice President
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
---------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
---------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
---------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By /s/ ???????
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
---------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
---------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
---------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ASP
THE CHASE MANHATTAN BANK
By
---------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
---------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
---------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By
---------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
---------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY INC
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
---------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
Title: Director
THE FUJI BANK, LIMITED
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Manager
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By
---------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By
---------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Deputy General Manager
[TERM CREDIT AGREEMENT]
SCHEDULE I
ADVANCES, COMMITMENTS AND APPLICABLE LENDING OFFICES
TRANCHE A TRANCHE B
NAME OF BANK TERM COMMITMENT TERM COMMITMENT APPLICABLE LENDING OFFICE
------------ --------------- --------------- -------------------------
CITIBANK, N.A. $25,500,000 $4,250,000 DOMESTIC:
--------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇ ▇▇▇▇▇▇▇▇
TEL: NO. ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 3685-2248
ACCOUNT NAME: MEDIUM TERM FIN.
ATTENTION: ▇▇ ▇▇▇▇▇▇▇▇
REFERENCE: MARVEL IV HOLDINGS
EURODOLLAR:
----------
SAME
THE BANK OF NEW YORK $25,500,000 $4,250,000 DOMESTIC:
--------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇/34
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: GLA/ 111556
ACCOUNT NAME: COMMERCIAL LOAN DEPT.
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
REFERENCE: MARVEL IV HOLDINGS
EURODOLLAR:
----------
SAME
2
TRANCHE A TRANCHE B
NAME OF BANK TERM COMMITMENT TERM COMMITMENT APPLICABLE LENDING OFFICE
------------ --------------- --------------- -------------------------
BANK OF AMERICA ILLINOIS $25,500,000 $4,250,000 DOMESTIC:
--------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇ ▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇-▇▇▇-▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 47-03421
ATTENTION: ACCOUNT
ADMINISTRATION-▇.▇▇▇▇▇
REFERENCE: MARVEL IV HOLDINGS
EURDOLLAR:
---------
SAME
THE CHASE MANHATTAN BANK $25,500,000 $4,250,000 DOMESTIC:
--------
2 CHASE MANHATTAN PLAZA
NEW YORK, N.Y. 10081
ATTENTION: ▇▇▇▇▇ ▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇-▇▇▇▇-▇▇
VIA FED TRANSFER
ACCOUNT NO.: 900-9-0000-36
ACCOUNT NAME: COMMERCIAL LOAN DEPT.
ATTENTION: ▇▇▇▇▇ ▇▇▇▇
REFERENCE: MAFCO HOLDING
EURODOLLAR:
----------
SAME
3
TRANCHE A TRANCHE B
NAME OF BANK TERM COMMITMENT TERM COMMITMENT APPLICABLE LENDING OFFICE
------------ --------------- --------------- -------------------------
CREDIT LYONNAIS NEW YORK $15,000,000 $2,500,000 DOMESTIC:
BRANCH --------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 01-008820-001-00
ACCOUNT NAME: LOAN SERVICING
ATTENTION: ▇▇▇▇ ▇▇▇▇▇▇▇
REFERENCE: MAFCO
EURODOLLAR:
----------
SAME
CREDIT SUISSE $25,500,000 $4,250,000 DOMESTIC:
--------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇ ▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 904996-02
ACCOUNT NAME: LOAN DEPT.
ATTENTION: ▇▇ ▇▇▇▇▇▇▇
REFERENCE: MARVEL IV HOLDINGS
EURODOLLAR:
----------
SAME
4
TRANCHE A TRANCHE B
NAME OF BANK TERM COMMITMENT TERM COMMITMENT APPLICABLE LENDING OFFICE
------------ --------------- --------------- -------------------------
THE FIRST NATIONAL BANK $25,500,000 $4,250,000 DOMESTIC:
OF BOSTON --------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇ ▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: 01000390
ACCOUNT NO.: ▇▇▇▇▇▇▇
VIA FED TRANSFER
ATTENTION: ▇▇▇▇▇▇ ▇▇▇▇▇
REFERENCE: MARVEL IV HOLDINGS
EURODOLLAR:
----------
SAME
THE FUJI BANK, LIMITED $25,500,000 $4,250,000 DOMESTIC:
--------
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 515011U3
ACCOUNT NAME: USCF III
ATTENTION: ▇▇▇▇▇ ▇▇▇▇▇
REFERENCE: MAFCO HOLDINGS
EURODOLLAR:
----------
SAME
5
TRANCHE A TRANCHE B
NAME OF BANK TERM COMMITMENT TERM COMMITMENT APPLICABLE LENDING OFFICE
------------ --------------- --------------- -------------------------
THE LONG-TERM CREDIT BANK $15,000,000 $2,500,000 DOMESTIC:
OF JAPAN, LTD. --------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇ ▇▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 220234834
ACCOUNT NAME: LONG-TERM CREDIT BANK
OF JAPAN
ATTENTION: ▇▇▇ ▇▇▇▇▇▇▇▇
REFERENCE: MAFCO HOLDINGS INC.
EURDOLLAR:
----------
SAME
NATIONSBANK, N.A. $25,500,000 $4,250,000 DOMESTIC:
--------
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TEL. NO.: ▇▇▇-▇▇▇-▇▇▇▇
FAX NO.: ▇▇▇-▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: 13662122506
ACCOUNT NAME: CORPORATE CREDIT
SERVICES SUPPORT
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
REFERENCE: MARVEL IV HOLDINGS
EURODOLLAR:
----------
SAME
6
TRANCHE A TRANCHE B
NAME OF BANK TERM COMMITMENT TERM COMMITMENT APPLICABLE LENDING OFFICE
------------ --------------- --------------- -------------------------
ING (U.S.) CAPITAL $25,500,000 $4,250,000 DOMESTIC:
CORPORATION --------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: KUNDUCK MOON
TEL. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX NO.: (▇▇▇) ▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: ▇▇▇▇▇▇▇▇
ACCOUNT NAME: INTERNATIONALE
NEDERLANDEN (U.S.) CAPITAL
CORPORATION
REFERENCE: MARVEL IV HOLDINGS
EURODOLLAR:
----------
SAME
PILGRIM AMERICA PRIME RATE $15,000,000 $2,500,000 DOMESTIC:
TRUST --------
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION:
TEL. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
ABA NO.: ▇▇▇▇▇▇▇▇▇
VIA FED TRANSFER
ACCOUNT NO.: ▇▇▇▇▇▇▇▇
ACCOUNT NAME: PL1F - PILGRIM PRIME
RATE TRUST
REFERENCE: MAFCO HOLDINGS
EURODOLLAR:
----------
SAME
SALOMON BROTHERS HOLDING $25,500,000 $4,250,000 DOMESTIC:
COMPANY INC --------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇
TEL. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX. NO.: (▇▇▇) ▇▇▇-▇▇▇▇
ABA NO.: 0710000013
VIA FED TRANSFER
ACCOUNT NO.: ▇▇▇▇▇▇▇
ACCOUNT NAME:
REFERENCE:
EURODOLLAR:
----------
SAME
TERM CREDIT AGREEMENT
SCHEDULE II
-----------
BORROWER
MARVEL IV HOLDINGS INC.
Jurisdiction of Incorporation: Delaware
Authorized Capital Stock: 1,000 shares of Common Stock
Shares Outstanding: 1,000 shares of Common Stock
Percentage Owned: 99.5% by Marvel V Holdings Inc.
Options, Warrants and Similar Rights: None
TERM CREDIT AGREEMENT
SCHEDULE III
------------
DEBT
NONE
TERM CREDIT AGREEMENT
SCHEDULE IV
-----------
INVESTMENTS
INVESTMENT
PERSON ISSUER TYPE AMOUNT
------ ------ ---- ----------
Marvel IV Holdings Inc. Marvel III Holdings Inc. Common 100%
Stock
Investment in Marvel Entertainment Group, Inc.
("Marvel") in respect of Marvel's reimbursement
obligations relating to a Letter of Credit (as
defined in the Revolving Credit Agreement) in a
face amount of $4,000,000 to be issued under the
Existing Agreement or the Revolving Credit
Agreement in favor of the landlord of a building
located in Las Vegas, Nevada leased to a joint
venture between a subsidiary of Marvel and Ebco
Management, Inc.
TERM CREDIT AGREEMENT
SCHEDULE V
----------
LIENS
NONE
SCHEDULE VI
Defeased Debt Calculations
The Defeased Debt Amount for each Designated Person listed below for
any date of determination shall be calculated as follows for each such
Designated Person:
▇▇▇▇▇▇▇
Guarantor: The Defeased Debt Amount for ▇▇▇▇▇▇▇ Guarantor shall be an
amount equal to the sum of:
(i) the lesser of (x) the amount, if on such date of
determination ▇▇▇▇▇▇▇ Holdings is permitted to optionally
redeem, pursuant to the terms of the ▇▇▇▇▇▇▇ Holdings
Indenture, the Debt outstanding thereunder, that ▇▇▇▇▇▇▇
Holdings would be required to pay to redeem such Debt and
(y) the greater of (A) the "repurchase price" (assuming a
repurchase date 105 days after the date of determination) of
the aggregate amount of all Debt outstanding under the
▇▇▇▇▇▇▇ Holdings Indenture as of the repurchase date plus
accrued and unpaid interest thereon through the repurchase
date, as determined pursuant to Section 4.08(a) of the
▇▇▇▇▇▇▇ Holdings Indenture and (B) the aggregate amount
required as of the date of determination to be deposited
with the Trustee (as defined in the ▇▇▇▇▇▇▇ Holdings
Indenture) to effect the "legal defeasance option" or the
"covenant defeasance option" under the ▇▇▇▇▇▇▇ Holdings
Indenture (assuming a redemption date of July 15, 1996), as
provided for in Sections 8.02(1) and 8.02(2) of the ▇▇▇▇▇▇▇
Holdings Indenture and Section 5 of Exhibit B to the ▇▇▇▇▇▇▇
Holdings Indenture, plus
(ii) the "Redemption Price" as defined in Section 5 of
Exhibit A to the ▇▇▇▇▇▇▇ Worldwide Indenture (assuming a
redemption date of May 27, 1998) of the aggregate amount of
all Debt outstanding under the ▇▇▇▇▇▇▇ Worldwide Indenture
as of the redemption date.
New World
Guarantor: The Defeased Debt Amount for New World Guarantor shall be an
amount equal to the lesser of (x) the amount, if on such
date of determination NWCG Holdings is permitted to
optionally redeem, pursuant to the terms of the NWCG
Holdings Indenture, the Debt outstanding thereunder, that
NWCG Holdings would be required to pay to redeem such Debt
and (y) the greater of (A) the "repurchase price" (assuming
a repurchase date 105 days after the date of determination)
of the aggregate amount of all Debt outstanding under the
NWCG
2
Holdings Indenture as of the repurchase date, as determined
pursuant to Section 4.07(a) of the NWCG Holdings Indenture
and (B) the aggregate amount required as of the date of
determination to be deposited with the Trustee (as defined
in the NWCG Holdings Indenture) to effect the "legal
defeasance option" or the "covenant defeasance option" under
the NWCG Holdings Indenture (assuming a maturity date of
June 15, 1999), as provided for in Sections 8.02(1) and
8.02(2) of the NWCG Holdings Indenture.
Revlon Guarantor: The Defeased Debt Amount for the Revlon Guarantor shall be
an amount equal to the lesser of (x) the amount, if on such
date of determination Revlon Worldwide is permitted to
optionally redeem, pursuant to the terms of the Revlon
Worldwide Indenture, the Debt outstanding thereunder, that
Revlon Worldwide would be required to pay to redeem such
Debt and (y)the greater of (A) the "purchase price"
(assuming a repurchase date 105 days after the date of
determination) of the aggregate amount of all Debt
outstanding under the Revlon Worldwide Indenture as of the
date of purchase plus accrued and unpaid interest thereon
through the date of purchase, as determined pursuant to
Section 4.09(a) of the Revlon Worldwide Indenture and (B)
the "redemption price" (assuming a redemption date 60 days
after the date of determination) for a "Change of Control"
(as defined in the Revlon Worldwide Indenture) of the
aggregate amount of all Debt outstanding under the Revlon
Worldwide Indenture as of the redemption date, as determined
pursuant to Section 5 of Exhibit B to the Revlon Worldwide
Indenture.
As used in this Schedule VI, the following terms shall have the
following meanings:
"▇▇▇▇▇▇▇ Worldwide Indenture" means the Indenture, dated as of May 27,
1993, made by ▇▇▇▇▇▇▇ Worldwide in favor of Continental Bank, National
Association as trustee pursuant to which ▇▇▇▇▇▇▇ Worldwide issued its Liquid
Yield Option(TM) Notes due 2013.
"▇▇▇▇▇▇▇ Holdings Indenture" means the Indenture, dated as of July 15,
1993 made by ▇▇▇▇▇▇▇ Holdings in favor of Continental Bank, National
Association as trustee pursuant to which ▇▇▇▇▇▇▇ Holdings issued its Senior
Secured Discount Notes due 1998 and its Series B Senior Secured Discount Notes
due 1998.
"NWCG Holdings Indenture" means the Indenture, dated as of June 30,
1994 made by NWCG Holdings in favor of Nationsbank of Georgia, National
Association as trustee
3
pursuant to which NWCG Holdings issued its Senior Secured Discount Notes due
1999 and will issue its Series B Senior Secured Discount Notes due 1999.
"Revlon Worldwide Indenture" means the Indenture, dated as of March
15, 1993, made by Revlon Worldwide Corporation ("Revlon Worldwide") in favor of
The First National Bank of Boston as trustee pursuant to which Revlon Worldwide
issued its Senior Secured Discount Notes due 1998 and will issue its Series B
Senior Secured Discount Notes due 1998.
Schedule VII
List of Debt for Definition of
Net Cash Proceeds
1. MacAndrews & Forbes Holdings Inc.
13% Subordinated Debentures due March 1, 1999 pursuant to the Indenture
dated as of March 1, 1984 between MacAndrews & Forbes Holdings Inc. and
the United States Trust Company of New York, as trustee.
2. ▇▇▇▇▇▇▇ Group Incorporated
10% Senior Subordinated Debentures due 1999 pursuant to the Indenture
dated as of June 4, 1990 between ▇▇▇▇▇▇▇ Group Incorporated and First
Trust of California, National Association, as trustee (as successor
trustee to Security Pacific National Trust Company (New York)).
3. Four Star Holdings Corp.
Senior Notes due June 7, 1999 issued by Four Star Holdings Corp. to
former shareholders (▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇) in the aggregate principal amount of $46,154,500.
4. MacAndrews & Forbes Group Inc.
155/8% Senior Subordinated Notes due 1997 pursuant to the Indenture dated
October 22, 1982 between MacAndrews & Forbes Group Inc. and Security
Pacific National Bank, as trustee.
5. Revlon Group Incorporated
Redemption of Series B Cumulative Redeemable Exchangeable Preferred Stock
of Revlon Group Incorporated.
EXHIBIT A-1
TO THE TERM
CREDIT AGREEMENT
FORM OF TRANCHE A TERM NOTE
$____________ Dated: December __, 1996
FOR VALUE RECEIVED, the undersigned, MARVEL IV HOLDINGS INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
___________ (the "Lender") for the account of its Applicable Lending Office (as
defined in the Term Credit Agreement referred to below) the aggregate principal
amount of the Tranche A Term Advances (as defined below) owing to the Lender by
the Borrower pursuant to the Term Credit Agreement (as defined below) on the
dates and in the amounts specified in the Term Credit Agreement, but in no
event later than June 30, 1997.
The Borrower promises to pay interest on the unpaid principal amount
of each Tranche A Term Advance from the date of each Tranche A Term Advance
until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Term Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, at its offices at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 3685-2248, in same day funds.
Each Tranche A Term Advance owing to the Lender by the Borrower and the
maturity thereof, and all payments made on account of principal thereof, shall
be recorded by the Lender and, prior to any transfer hereof, endorsed on the
grid attached hereto, which is part of this Promissory Note.
This Promissory Note is one of the Tranche A Term Notes referred to
in, and is entitled to the benefits of, the Term Credit Agreement dated as of
December 16, 1996 (such agreement, as it may hereafter be amended or modified,
being the "Term Credit Agreement") among the Borrower, the Lender, certain
other lenders parties thereto, the initial issuing bank thereunder, Citibank,
N.A., as Administrative Agent, NationsBanc Capital Markets, Inc., as
Documentation Agent, Credit Suisse, as Syndication Agent, Citibank, N.A., as
Collateral Agent and the managing agents party thereto. The Term Credit
Agreement, among other things, (i) provides for the making of Tranche A term
advances (the "Tranche A Term Advances") by the Lender to the Borrower from
time to
2
time in an aggregate amount not to exceed at any time outstanding the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from such Tranche A Term Advances being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
MARVEL IV HOLDINGS INC.
By:
--------------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
-------------------------------------------------------------------------------
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made by
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EXHIBIT A-2 TO THE
TERM CREDIT
AGREEMENT
FORM OF TRANCHE B TERM NOTE
$____________ Dated: December__, 1996
FOR VALUE RECEIVED, the undersigned, MARVEL IV HOLDINGS INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
___________ (the "Lender") for the account of its Applicable Lending Office (as
defined in the Term Credit Agreement referred to below) the aggregate principal
amount of the Tranche B Term Advances (as defined below) owing to the Lender by
the Borrower pursuant to the Term Credit Agreement (as defined below) on the
dates and in the amounts specified in the Term Credit Agreement, but in no
event later than June 30, 1997.
The Borrower promises to pay interest on the unpaid principal amount
of each Tranche B Term Advance from the date of each Tranche B Term Advance
until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Term Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, at its offices at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 3685-2248, in same day funds.
Each Tranche B Term Advance owing to the Lender by the Borrower and the
maturity thereof, and all payments made on account of principal thereof, shall
be recorded by the Lender and, prior to any transfer hereof, endorsed on the
grid attached hereto, which is part of this Promissory Note.
This Promissory Note is one of the Tranche B Term Notes referred to
in, and is entitled to the benefits of, the Term Credit Agreement dated as of
December 16, 1996 (such agreement, as it may hereafter be amended or modified,
being the "Term Credit Agreement") among the Borrower, the Lender, certain
other lenders parties thereto, the initial issuing bank thereunder, Citibank,
N.A., as Administrative Agent, Credit Suisse, as Documentation Agent,
NationsBanc Capital Markets, Inc., as Syndication Agent, Citibank, N.A., as
Collateral Agent and the managing agents party
2
thereto. The Term Credit Agreement, among other things, (i) provides for the
making of Tranche B term credit advances (the "Tranche B Term Advances") by the
Lender to the Borrower from time to time in an aggregate amount not to exceed
at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from such Tranche B Term Advances being
evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
MARVEL IV HOLDINGS INC.
By:
--------------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made by
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EXHIBIT B
TO THE TERM
CREDIT AGREEMENT
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated _________, 199_
Reference is made to the Term Credit Agreement dated as of December
__, 1996 (as amended or otherwise modified from time to time, the "Term Credit
Agreement") among Marvel IV Holdings Inc., a Delaware corporation (the
"Borrower"), the Lender Parties (as defined in the Term Credit Agreement),
Citibank, N.A., as Administrative Agent (the "Administrative Agent"), Credit
Suisse, as Documentation Agent, NationsBanc Capital Markets, Inc., as
Syndication Agent, Citibank, N.A., as Collateral Agent and the managing agents
party thereto. Terms defined in the Term Credit Agreement are used herein with
the same meaning.
____________ (the "Assignor") and ___________ (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Term Credit Agreement as of the
date hereof equal to the percentage interest specified on Annex 1 of all
outstanding rights and obligations under the Facility or Facilities specified
on Annex 1. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the Assignee will be as set
forth in Annex 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Loan Document or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note or Notes held by the Assignor and requests that the
Administrative Agent exchange such Note or Notes for a new Note or Notes
payable to the order of the Assignee in an amount equal to
2
the Commitments assumed by the Assignee pursuant hereto or new Notes payable to
the order of the Assignee in an amount equal to the Commitments assumed by the
Assignee pursuant hereto and the Assignor in an amount equal to the Commitment
retained by the Assignor under the Term Credit Agreement, respectively, as
specified on Annex 1.
3. The Assignee (i) confirms that it has received a copy of the Term
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, any other Agent, the Assignor
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 the Term Credit Agreement; (iii) confirms
that it is an Eligible Assignee; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Term Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Term Credit
Agreement are required to be performed by it as a Lender; [and] (vi) specifies
as its Lending Office (and address for notices) the office set forth beneath
its name on the signature pages hereof [and (vii) attaches the forms prescribed
by the Internal Revenue Service of the United States certifying as to the
Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Term Credit Agreement or such other documents as are necessary to indicate
that all such payments are subject to such rates at a rate reduced by an
applicable tax treaty].1
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date of
this Assignment and Acceptance shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on Annex 1 hereto (the
"Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Term Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and
--------
1 Include clause (vii) if the Assignee is organized under the laws of a
jurisdiction outside the United States.
3
Acceptance, relinquish its rights and be released from its obligations under
the Term Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Term Credit Agreement and the Notes in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Term Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Annex 1 to this Assignment and Acceptance by telecopier shall be
as effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the parties hereto have caused Annex 1 to this
Assignment and Acceptance to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such execution being made
on Annex 1 hereto.
Annex 1
to
Assignment and Acceptance
Dated __, 199_
As to each Facility in respect of which an interest is being assigned.
Percentage Interest assigned: _________%
Assignee's Tranche A Term Commitment: $_________
Aggregate outstanding principal
amount of Tranche A Term Advances assigned: $_________
Principal amount of Tranche A Term
Note payable to Assignee: $_________
Principal amount of Tranche A Term
Note payable to Assignor: $_________
Assignee's Tranche B Term Commitment: _________%
Aggregate outstanding principal amount of
Tranche B Term Advances assigned: $_________
Principal amount of Tranche B
Note payable to Assignee: $_________
Principal amount of Tranche B Term
Note payable to Assignor: $_________
Effective Date**: ______________, 199_
[NAME OF ASSIGNOR, as Assignor]
By:
--------------------------------
Title:
[NAME OF ASSIGNOR, as Assignor]
By:
--------------------------------
Title:
Lending Office
(and address for notices):
[Address]
------------------------
** This date should be no earlier than the date of acceptance by the
Administrative Agent.
Accepted this ___ day of _________________,
199_
CITIBANK, N.A.,
as Administrative Agent
By:
-----------------------------------------
Title:
EXHIBIT C
TO THE TERM
CREDIT AGREEMENT
FORM OF
NOTICE OF BORROWING
Citibank, N.A.
as Administrative Agent for the Lenders parties
to the Term Credit Agreement [Date]
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _____________
Ladies and Gentlemen:
The undersigned, Marvel IV Holdings Inc., refers to the Term
Credit Agreement dated as of December 16, 1996 (as amended or otherwise
modified from time to time, the "Term Credit Agreement"; the terms defined
therein being used herein as therein defined), among the undersigned, certain
Lender Parties parties thereto, Citibank, N.A., as Administrative Agent, Credit
Suisse, as Documentation Agent, NationsBanc Capital Markets, Inc., as
Syndication Agent, Citibank, N.A., as Collateral Agent and the managing agents
party thereto and hereby gives you notice, irrevocably, pursuant to Section
2.02 of the Term Credit Agreement that the undersigned hereby requests a
Borrowing under the Term Credit Agreement, and in that connection sets forth
below the information relating to such Borrowing (the "Proposed Borrowing") as
required by Section 2.02(a) of the Term Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________,
[199_].
(ii) The Facility under which the Proposed Borrowing is to be made
is the [Tranche A] [Tranche B] Term Facility.
(iii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is $__________.
(v) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
2
(A) the representations and warranties contained in the Loan
Documents are correct in all material respects on and as of the date
of such Proposed Borrowing, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date, except to the extent such
representations and warranties specifically relate to an earlier date,
in which case such representations and warranties were true, correct
and complete in all material respects on and as of such earlier date;
and
(B) no Default has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom.
Very truly yours,
MARVEL IV HOLDINGS INC.
By:
--------------------------------
Title:
EXHIBIT I
TO THE TERM
CREDIT AGREEMENT
FORM OF CONFIDENTIALITY LETTER
[BANK LETTERHEAD]
[Date]
Citibank, N.A.
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[Name and address of Bank
selling a participation or
making an assignment under
the Term Credit Agreement
referred to below]
Dear Sirs:
We understand that Citibank, N.A. ("Citibank") is acting as
Administrative Agent under the Term Credit Agreement dated as of December 16,
1996 (as amended or otherwise modified from time to time, the "Term Credit
Agreement"; terms used herein and not otherwise defined are used as defined
therein) among Marvel IV Holdings Inc. (the "Borrower"), Citibank, as
Administrative Agent, the banks and financial institutions and other
institutional lenders party thereto (the "Lender Parties"), Credit Suisse, as
Documentation Agent, NationsBanc Capital Markets, Inc., as Syndication Agent,
Citibank, as Collateral Agent and the managing agents party thereto. In
connection with our evaluation of a proposed purchase of a participation in, or
acceptance of an assignment of, a portion of the Advances and Commitments,
Citibank and/or a Lender or an affiliate of Citibank or a Lender have
furnished, and will furnish, us with a copy of the Term Credit Agreement and
non-public information concerning the Borrower and the Bank (all such
non-public information, whether furnished before or after the date of this
letter, and including, without limitation, the financial model referred to
below, collectively the "Transaction Information").
We agree to keep confidential (and to cause our officers, directors,
employees, agents and representatives to keep confidential) all Transaction
Information and, in the event we do not participate or accept an assignment
under the Term Credit Agreement, at Citibank's, such Lender's or the Borrower's
request, to return (and to cause such other person to return)
3
to Citibank, such Lender or the Borrower, as the case may be, all written
Transaction Information and all copies thereof, extracts therefrom and analyses
and other materials based thereon, except that we shall be permitted to
disclose details of the Transaction Information (i) to such of our officers,
directors, employees, agents and representatives (which agents and
representatives shall not include any financial institutions) and legal or
other advisors who need to know such information in connection with our
evaluation of a possible participation in, or possible acceptance of an
assignment of, Advances and Commitment thereunder and who agree to be bound by
the restrictions set forth herein; (ii) to the extent required by applicable
laws and regulations or by any subpoena or similar legal process (provided that
we will promptly notify the Borrower of such requirement as far in advance of
its disclosure as is practicable to enable the Borrower to seek a protective
order and, to the extent practicable, we will cooperate with the Borrower in
seeking any such order), or requested by any governmental agency or authority
having jurisdiction over us (provided that we will first inform the Borrower of
any such request other than those from bank regulatory authorities or examiners
and, in either case, we will inform any such agency or authority that such
information is subject to this letter agreement); (iii) to the extent Citibank
and the Borrower shall have consented to such disclosure in writing; and (iv)
to the extent that a public announcement or dissemination of such Transaction
Information shall have been made other than as a result of a breach of this
Confidentiality Letter.
We further agree that we will use the Transaction Information only in
connection with our evaluation of becoming a possible participant or Eligible
Assignee under the Term Credit Agreement.
The undertakings contained herein are for your benefit and the benefit
of the Borrower.
Upon its receipt of this confidentiality letter signed by us, we
understand that Citibank or a Lender may forward to us a financial model for
the periods through 1999 pertaining to the Borrower and the Bank. Such
information will subsequently form part of the Transaction Information for all
purposes hereunder.
We understand that the financial model was prepared in good faith by
Mafco's management based on assumptions believed to be reasonable when made.
However, because assumptions as to future results are inherently subject to
uncertainty and contingencies beyond Mafco's control, actual results of the
Borrower and the Bank may be higher or lower.
[Name of Lender]
By:
-------------------------------
Title: