EXHIBIT 4.2
Reaffirmation Agreement
This Reaffirmation Agreement, dated as of May 19, 2011 (this “Reaffirmation Agreement”), is made by each Person listed on the signature pages hereto as a Reaffirming Party (each a “Reaffirming Party” and collectively the “Reaffirming Parties”) and acknowledged by the Collateral Agent (as defined below) on behalf of the Secured Parties (as defined in the Term Loan Agreement referred to below).
W i t n e s s e t h:
Whereas, the Company, the lenders party thereto, Citicorp, as administrative agent and collateral agent, are parties to the Second Amended and Restated Term Loan Agreement, dated as of March 11, 2010 (as amended, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Term Loan Agreement”);
WHEREAS, each Guarantor is party to the Amended and Restated Term Loan Guaranty, dated as of March 11, 2010 (as amended, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Term Loan Guaranty”), pursuant to which each Guarantor has guaranteed the Payment Obligations (as defined in the Existing Term Loan Agreement);
Whereas, the Company, as a grantor, and the Guarantors are parties to that certain Third Amended and Restated Pledge and Security Agreement, dated as of March 11, 2010 (as amended, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Security Agreement”), to grant a security interest in favor of the Collateral Agent (for the benefit of the Secured Parties) in certain of their assets to secure the Secured Obligations under and as defined in the Existing Term Loan Agreement (the Security Agreement and the Term Loan Guaranty, collectively, the “Reaffirmed Documents” and each a “Reaffirmed Document”);
Whereas, concurrently with the execution and delivery of this Agreement, the Existing Term Loan Agreement will be amended and restated in its entirety pursuant to the Third Amended and Restated Term Loan Agreement (as such agreement may be amended, restated, supplemented, renamed or otherwise modified from time to time, together with any other agreements pursuant to which any such Indebtedness or any commitments, obligations, costs, expenses, fees, reimbursements, indemnities or other obligations payable or owing thereunder may be refinanced, restructured, renamed, extended, increased, refunded or replaced, the “Term Loan Agreement”), among the Company, the lenders party thereto (the “Lenders”), Citicorp, as administrative agent for the Lenders and as collateral agent for the Secured Parties (in such capacity, together with any successor in such capacity, the “Collateral Agent”); and
Whereas, a condition precedent to the lenders party thereto to enter into the Term Loan Agreement is that the Company and the Guarantors shall have ratified and confirmed (i) their respective obligations under the Reaffirmed Documents in respect of the Secured Obligations under and as defined in the Term Loan Agreement, (ii) the Liens granted in favor of the Collateral Agent (for the benefit of the Secured Parties) in respect of such Secured Obligations and (iii) the guaranties made in favor of the Collateral Agent (for the benefit of the Secured Parties) in respect of the Payment Obligations under and as defined in the Term Loan Agreement.
Now, Therefore, in consideration of the above premises, the Reaffirming Parties agree as follows:
Section 1. Definitions
Terms used herein and not defined herein shall have the meanings ascribed to them in the Term Loan Agreement.
Section 2. Reaffirmation of Loan Documents
Each Reaffirming Party hereby consents to the execution, delivery and performance of this Reaffirmation Agreement, the Term Loan Agreement and all of the other Loan Documents (if any) to be executed in connection therewith. Each Reaffirming Party hereby agrees that each reference to the “Term Loan Agreement” in the Reaffirmed Documents shall be deemed to be a reference to the Term Loan Agreement, as defined herein.
Section 3. Reaffirmation of Obligations and Liabilities
Each Reaffirming Party hereby acknowledges and agrees that, after giving effect to the Term Loan Agreement on the Effective Date, all of its respective obligations under the Reaffirmed Documents and the other Loan Documents to which it is a party are reaffirmed, and remain in full force and effect on a continuous basis. Each Reaffirming Party acknowledges that the obligations and liabilities of the Company under the Term Loan Agreement (as an amendment and restatement of the Existing Term Loan Agreement) continue in full force and effect on a continuous basis, unpaid and undischarged, except as expressly provided in the Term Loan Agreement.
Section 4. Reaffirmation of Liens and Guaranties
As of the Effective Date, each Reaffirming Party reaffirms each Lien it granted to each Secured Party, and any Liens that were otherwise created or arose under each of the Reaffirmed Documents to which such Reaffirming Party is party and reaffirms the guaranties made in favor of each Secured Party under each of the Reaffirmed Documents to which such Reaffirming Party is party, which Liens and guaranties shall continue in full force and effect during the term of the Term Loan Agreement and any amendments, amendments and restatements, supplements or other modifications thereof and shall continue to secure the Secured Obligations of the Company and the Guarantors, and secure the obligations of the other Reaffirming Parties under any Reaffirmed Document or other Loan Document, in each case, on and subject to the terms and conditions set forth in the Term Loan Agreement and the Reaffirmed Documents.
Section 5. Reaffirmation of the Schedules
The Schedules (other than Schedule 5A) to the Security Agreement are hereby amended and restated in their entirety in the form attached hereto as Exhibit A; provided, Schedule 5A will continue to be supplemented as required by Section 10.14 the Term Loan Agreement.
Section 6. Representations and Warranties
This Reaffirmation Agreement has been duly authorized, executed and delivered by each Reaffirming Party and each Reaffirmed Document constitutes a valid and binding agreement of each Reaffirmed Party, enforceable against such Reaffirmed Party in accordance with its terms, except (i) as may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, (ii) as rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability, and (iii) as limited by legal or equitable principles of reasonableness, good faith and fair dealing.
Section 7. Miscellaneous
7.1 This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or by posting on the Approved Electronic Platform shall be as effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with the Company and the Administrative Agent.
7.2 This Reaffirmation Agreement and all amendments herein shall be limited as written and shall not constitute a consent to any other amendment or waiver, whether or not similar and, except as expressly provided herein or in any other Reaffirmed Document, all terms and conditions of the Reaffirmed Documents remain in full force and effect unless otherwise specifically amended in this Reaffirmation Agreement or any other Reaffirmed Document.
7.3 This Agreement shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
Section 8. IN NO EVENT SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY TO ANY LOAN PARTY, LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT OR CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY OR ANY AGENT AFFILIATE’S TRANSMISSION OF APPROVED ELECTRONIC COMMUNICATIONS THROUGH THE INTERNET OR ANY USE OF THE APPROVED ELECTRONIC PLATFORM, EXCEPT TO THE EXTENT SUCH LIABILITY OF ANY AGENT AFFILIATE IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FORM SUCH AGENT AFFILIATE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
[Signature Pages Follow]
In Witness Whereof, this Reaffirmation Agreement has been duly executed as of the date first written above.
| Revlon Consumer Products Corporation, | ||
| as the Company and a Reaffirming Party | ||
| By: | /s/ Michael T. Sheehan | |
| Name: | Michael T. Sheehan | |
| Title: | Senior Vice President, Deputy General | |
| Counsel & Secretary | ||
| Revlon, inc., | ||
| as a Guarantor and a Reaffirming Party | ||
| By: | /s/ Michael T. Sheehan | |
| Name: | Michael T. Sheehan | |
| Title: | Senior Vice President, Deputy General | |
| Counsel & Secretary | ||
North America Revsale Inc., | ||
| as a Guarantor and a Reaffirming Party | ||
| By: | /s/ Michael T. Sheehan | |
| Name: | Michael T. Sheehan | |
| Title: | Vice President & Secretary | |
| Almay, Inc. | ||
| Charles Revson Inc. | ||
| Cosmetics & More Inc. | ||
| OPP Products, Inc. | ||
PPI Two Corporation | ||
| Revlon Consumer Corp. | ||
| Revlon Development Corp. | ||
| Revlon Government Sales, Inc. | ||
| Revlon International Corporation | ||
| Revlon Real Estate Corporation | ||
| RIROS Corporation | ||
| RIROS Group Inc. | ||
| Sinful Colors, Inc., | ||
| as Guarantors and Reaffirming Parties | ||
| By: | /s/ Michael T. Sheehan | |
| Name: | Michael T. Sheehan | |
| Title: | Vice President & Secretary |
ACKNOWLEDGED as of the date first written above:
Citicorp USA, Inc.,
as Collateral Agent, on behalf of the Secured Parties
| By: | /s/ David Leland | |
| Name: | David Leland | |
| Title: | Vice President | |
EXHIBIT A
See Attached