EXHIBIT 10.65
PERFUMANIA, INC.
SUBORDINATED SECURED NOTE
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$5,000,000 JUNE 30, 2003
FOR VALUE RECEIVED, Perfumania, Inc., a Florida corporation (the
"Company"), hereby unconditionally promises to pay to the order of Xxxxxx
Xxxxxxxxxx, Inc., a Delaware corporation (the "Holder"), in immediately
available funds, the principal amount of Five Million Dollars ($5,000,000), in
consideration of the partial discharge of Accounts Receivable due from the
Company to the Holder in the amount of Five Million Dollars ($5,000,000), and to
pay interest on the unpaid principal amount hereof at the rate set forth in
Section 4. All amounts owed hereunder shall be paid in lawful money of the
United States of America.
This Note is subject to the following terms and conditions:
1. SECURITY. This Note and the amounts payable hereunder, including
principal and accrued interest, is secured by that Security Agreement between
the Holder and the Company dated as of the date hereof ("Security Agreement").
2. SUBORDINATION. This Note and the amounts payable hereunder,
including principal and accrued interest shall be subordinate and junior to the
Senior Bank Loans. For the purpose of this Note, "Senior Bank Loans" shall mean
any and all obligations, liabilities and indebtedness of the Company to GMAC
Commercial Credit LLC (the "Senior Lender"), all obligations, liabilities and
indebtedness in connection with the refinancing of the indebtedness to the
Senior Lender.
3. PAYMENT OF PRINCIPAL. The Company shall punctually pay or cause to
be paid to Holder or its assigns the principal of this note in installments as
follows:
(i) the Company shall pay $250,000 on July 31, 2003; $250,000 on August
31, 2003; $250,000 on September 30, 2003; $250,000 on October 31, 2003;
$500,000 on November 30, 2003; $3,000,000 on December 31, 2003;
$250,000 on January 31, 2004; $250,000 on February 29, 2004
The outstanding principal balance of this Note may be prepaid by the Company at
any time and from time to time, without premium or penalty of any kind or nature
whatsoever. Prepayments shall be applied to the installments due hereunder in
order of maturity.
4. PAYMENTS OF INTEREST. With each payment of principal made pursuant
to Section 3, the Company shall pay or cause to be paid to Holder interest on
the unpaid principal amount hereof at the then current Prime Rate plus one
percent. As used herein, the term "Prime Rate" shall mean for each calendar
month the prime rate listed in the Wall Street Journal in the "Money Rates"
column published on the date which is one Business Day (as defined below) prior
to the beginning of such calendar month for such calendar month. If the Prime
Rate cannot be
determined in accordance with the preceding sentence, then the Company will
notify Holder and instead determine the Prime Rate by using the rates offered to
prime banks by Citibank, N.A. (but in all other respects in accordance with the
preceding sentence).
5. PAYMENTS. Any payment hereunder which is stated to be due on a day
which is not a Business Day shall be made on the next succeeding Business Day
(and interest shall accrue for such extension of time). "Business Day" shall
mean any day other than a Saturday or Sunday or a day on which banks in New York
are authorized or required by law to be closed.
6. DEFAULT. The occurrence of any one or more of the following events
shall constitute an event of default (each an "Event of Default") hereunder:
(i) if the Company becomes insolvent or makes an assignment for the
benefit of creditors;
(ii) if there shall be filed by or against the Company any petition
for any relief under the bankruptcy laws of the United States now or hereafter
in effect or any proceeding shall be commenced with respect to the Company under
any insolvency, readjustment of debt, reorganization, dissolution, liquidation
or similar law or statute of any jurisdiction now or hereafter in effect
(whether at law or in equity), provided that in the case of any involuntary
filing or the commencement of any involuntary proceeding against the Company
such proceeding or petition shall have continued undismissed and unvacated for
30 days; or
(iii) if any petition or application to any court or tribunal, at
law or in equity, shall be filed by or against the Company for the appointment
of any receiver or Company for the Company or any material part of the property
of the Company, provided that in the case of any involuntary filing against the
Company, such proceeding or appointment shall have continued undismissed and
unvacated for 30 days; or
(iv) if the Company shall fail for any reason to make any payment of
principal and/or interest hereunder within 10 business days after such payment
is due; or
(v) if the Company shall fail for any reason to make any payment of
principal and interest under any Senior Bank Loan, within 30 days after such
payment is due.
REMEDIES UPON DEFAULT; DEFAULT INTEREST.
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(i) If any Event of Default shall occur for any reason, then and in
any such event, in addition to all rights and remedies of the Holder under
applicable law or otherwise, all such rights and remedies being cumulative, not
exclusive and enforceable alternatively, successively and concurrently, the
Holder may, at its option, declare any or all amounts owing under this Note to
be due and payable, whereupon the then unpaid balance hereof, together with all
accrued and unpaid interest thereon, shall forthwith become due and payable.
(ii) Upon the occurrence of an Event of Default, or upon the maturity
hereof (by acceleration or otherwise), the principal and any accrued but unpaid
interest owing on said principal sum (the "Obligations") shall bear interest
from the date of occurrence of such Event of Default or such maturity until
collection (including any period of time occurring after judgment),
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at the "Default Rate," being the lower of (A) the highest rate allowed by
applicable law, or (B) a simple interest rate per annum equal to 3% above the
Prime Rate in effect on the date of maturity (acceleration or otherwise). All
default interest charges (X) shall be in addition to, and not in lieu of, any
other remedy available to Holder; (Y) shall be added to the Obligations and
secured by the Security Agreement, and (Z) shall not be construed as an
agreement or privilege to extend the date of the payment of the Obligations, nor
as a waiver of any other right or remedy accruing to Holder by reason of the
occurrence of any Event of Default.
7. LOST, STOLEN, MUTILATED OR DESTROYED NOTE. If this Note shall be
mutilated, lost, stolen, or destroyed, the Company shall execute and deliver, in
exchange and substitution for and upon cancellation of a mutilated Note, or in
lieu of or in substitution for a lost, stolen, or destroyed Note, a new Note for
the principal amount of this Note so mutilated, lost, stolen, or destroyed but
only upon receipt of evidence (which may consist of a signed affidavit of the
Holder) of such loss, theft, or destruction of such Note, and of the ownership
thereof, and indemnity all reasonably satisfactory to the Company.
8. OTHER MATTERS
(a) SALE OF NOTE; ASSIGNMENT. This Note is negotiable, and this Note
may be sold, assigned, transferred or conveyed, by pledge or otherwise, without
the prior written consent of the Company.
(b) MODIFICATION; WAIVER. This Note may be amended, modified,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the Company and the Holder. Any waiver by
the Company or the Holder of a breach of any provision of this Note shall not
operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Note. The failure of the Company
or the Holder to insist upon strict adherence to any term of this Note on one or
more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Note. No delay on the part of any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof or hereof, nor shall
any waiver on the part of any party of any right, power or privilege hereunder
preclude any other or further exercise hereof or the exercise of any other
right, power or privilege hereunder. Any waiver must be in writing. The rights
and remedies provided herein are cumulative and are not exclusive of any rights
or remedies which any party may otherwise have at law or in equity.
(c) NOTICES. Any notice required or permitted to be given hereunder
("Notices") shall be in writing and delivered personally or mailed by registered
or certified mail, postage prepaid and return receipt requested, or by fax, as
follows: (i) if to the Company: 000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
00000, Attn: Chief Financial Officer, fax no. (000) 000-0000, with a copy to:
Xxxxxxxxx Xxxxxxx, P.A., 0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attn:
Xxxxxxx X. Xxxxxxx, fax no. (000) 000-0000; and (ii) if to the Holder: 3725 S.W.
30th Avenue, Fort Lauderdale, Florida 33312, Attn: Chief Operating/Finance
Officer, fax no. (000) 000-0000, with copy to Xxxxxxx Xxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000 Attn: Xxxxx Xxxxxxxx, fax no. (000) 000-0000, or such
other address as the either party hereto may designate by Xxxxxx to the other.
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(d) SEVERABILITY. If any provision of this Note is invalid, illegal, or
unenforceable, the balance of this Note shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances. The rate of interest
on this Note is subject to any limitations imposed by applicable usury laws.
(e) HEADINGS. The headings in this Note are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Note.
(f) GOVERNING LAW. This Note shall be governed by and construed in all
respects under the laws of the State of Florida, without reference to its
conflict of laws, rules or principles.
(g) SAVING CLAUSE. This Note is subject to the express condition that
at no time shall the Company be obligated or required to pay interest on the
principal balance due hereunder at a rate which could subject Holder to either
civil or criminal liability as a result of being in excess of the maximum
interest rate which the Company is permitted by law to contract or agree to pay.
If by the terms of this Note, the Company is at any time required or obligated
to pay interest on the principal balance due hereunder, at a rate in excess of
such maximum rate, the interest rate shall be deemed to be immediately reduced
to such maximum rate and all previous payments in excess of the maximum rate
shall be deemed to have been payments in reduction of principal and not on
account of the interest due hereunder notwithstanding the other provisions
hereof.
IN WITNESS WHEREOF, the Company has caused this Note to be executed on
its behalf by the undersigned officer thereunto duly authorized.
PERFUMANIA, INC.
/s/ Xxxxxxx Xxxx
By: ______________________________
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
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