FIRST AMENDMENT
Exhibit 10.12
FIRST AMENDMENT
THIS FIRST AMENDMENT (this “Amendment”), is dated September 5, 2006, and relates to that certain Receivables Funding and Administration Agreement, dated as of November 25, 2005 (as amended, restated, supplemented or otherwise modified from time to time, the “Funding Agreement”), among Xxxxxx Receivables II, LLC, a Delaware limited liability company (“Borrower”), the financial institutions from time to time party thereto (each a “Lender” and collectively, the “Lenders”), General Electric Capital Corporation, a Delaware corporation, as administrative agent for the Lenders (the “Administrative Agent”), and is hereby made by Borrower, the Administrative Agent, and the Lenders. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Funding Agreement.
W I T N E S S E T H:
WHEREAS, Borrower has advised the Lenders and the Administrative Agent that Webcraft, LLC, a Delaware limited liability company (“Webcraft”) has agreed to sell certain assets used in the development, marketing, sale and production of multi-sensory sampling devices and renditions, including, without limitation, fragrance, cosmetics and toiletries-related sampling, labels, scent strips and single use packaging for fragrances, cosmetics and toiletries (which business is hereinafter referred to as the “Fragrance Business”) pursuant to that certain Asset Purchase Agreement (the “FB Purchase Agreement”) among Xxxxxx, Inc., a Delaware corporation (“Xxxxxx”) and Webcraft as “Seller” thereunder and Spice Acquisition Corp., a Delaware corporation (the “FB Purchaser”), dated September 5, 2006 (the transactions relating thereto, the “Sale Transaction”);
WHEREAS, prior to the date hereof, and continuing until the “Closing Date” (as defined in the FB Purchase Agreement), Webcraft has sold and will continue to sell Receivables arising out of the Fragrance Business to Borrower (the “FB Receivables”) and after the Closing Date will continue to sell Receivables (other than those arising out of the Fragrance Business) as provided in the Related Documents;
WHEREAS, the parties hereto have agreed as follows:
(a) contemporaneously with the effectiveness of the Sale Transaction, all Transferred Receivables constituting FB Receivables shall no longer constitute “Eligible Receivables”;
(b) as a result of the foregoing, a Funding Excess shall exist and Borrower shall be required to pay the amount of such Funding Excess in cash to Administrative Agent pursuant to Section 2.08(b) and 2.08(d);
(c) if such Funding Excess is not paid as and when required pursuant to Section 2.08(b) and 2.08(d), then Administrative Agent has the authority pursuant to Section 9.01(b) to direct the sale of the FB Receivables; and
(d) in order to effectuate the provisions of the Funding Agreement and Related Documents and the orderly disposition of Transferred Receivables as required to repay the Loans, notwithstanding any timing differentials between the occurrence of the
foregoing pursuant to the Funding Agreement, the Administrative Agent and the Lenders shall on the Effective Date (as defined in Section 3 below), direct the sale of the FB Receivables to the FB Purchaser by the Borrower, and the Borrower will effectuate such sale by the execution and delivery of a quit-claim assignment agreement with the FB Purchaser in form and substance satisfactory to Administrative Agent (a copy of which is attached hereto as Exhibit A, the “FB Quitclaim”, such quit-claim transaction, the “Quitclaim Transaction”);
WHEREAS, subject to the terms and conditions set forth herein, in connection with the consummation of the Sale Transaction and the Quitclaim Transaction, the Administrative Agent and Lenders have agreed to consent to the Quitclaim Transaction;
WHEREAS, the Administrative Agent, the Lenders, and Borrower are willing to amend the Funding Agreement to reflect the foregoing and grant the requested consent on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, the parties hereto agree as follows:
1. Consent and Amendments as of Effective Date. As of the “Effective Date” (as defined in Section 3 below):
(a) All Transferred Receivables constituting FB Receivables shall no longer be deemed “Eligible Receivables”.
(b) The Administrative Agent and the Lenders hereby direct, and consent to, the Quitclaim Transaction, and Borrower shall enter into the Quitclaim Transaction and use the proceeds thereof to pay on the Effective Date any Funding Excess resulting from the amendment described in clause (a) above.
(c) Any collections received in a Lockbox, Collection Account or Concentration Account with respect to FB Receivables on and after the Effective Date shall be deemed “Unrelated Amounts”. Borrower shall identify to Administrative Agent such Unrelated Amounts within one Business Day of deposit therein, and Administrative Agent agrees that upon such notice Administrative Agent shall (i) until the 90th day after the Effective Date, remit such amounts to the FB Purchaser as directed by Servicer and (ii) after the 90th day after the Effective Date, address such Unrelated Amounts as otherwise provided in the Related Documents.
(d) No later than 5:00 p.m. (New York time) on each Tuesday, Borrower shall deliver a report identifying any collections received by Borrower, Webcraft, any other Originator or Servicer from FB Receivables during the previous calendar week (including a total of such amounts identified pursuant to clause (c) above), prepared as of the last day of such week.
(e) On each Settlement Date until the 90th day after the Closing Date, Borrower shall provide (or cause Servicer to so provide) a written report to
Administrative Agent certifying that no collections from FB Receivables have been remitted to the Agent Account about which Administrative Agent has not been advised.
(f) Borrower agrees that it will, on or before the close of business on the fifth Business Day after the “Closing Date” (as defined in the FB Purchase Agreement), cause Servicer to send written notice to each Obligor of FB Receivables to remit payment to a deposit account other than a Collection Account or Concentration Account (and a lockbox other than a Lockbox) and a Person other than Borrower, Servicer and Webcraft. Should notwithstanding such instructions any collections from FB Receivables be remitted to Servicer, Webcraft, Borrower, any Originator, any Collection Account, Concentration Account or Lockbox, Borrower shall exercise commercially reasonable efforts to cause FB Purchaser to renotify such Obligors regarding the proper direction of payments. The parties hereto agree that a failure to send such notices by the date set forth in the first sentence of this clause (f) shall not be subject to any grace period set forth in Section 8.01 of the Funding Agreement.
(g) The Administrative Agent, on behalf of the Lenders, hereby releases all security interests with respect to all of the Administrative Agent’s right, title and interest in and to the FB Receivables.
2. Representations and Warranties. As of the Effective Date, Borrower hereby represents and warrants to Administrative Agent and the Lenders that (i) all of the representations and warranties of such Person in the Related Documents are true and correct in all material respects on and as of such date as though made to each such Person on and as of such date (other than representations and warranties which expressly speak as of a different date, which representations shall be made only on such date), (ii) each of the recitals accurately describes the transactions described therein in all respects, and (iii) as of such date, no Incipient Termination Event, Termination Event, Incipient Servicer Termination Event or Event of Servicer Termination Event has occurred and is continuing (it being agreed and understood by all parties that the Sale Transaction, Quitclaim Transaction and any Funding Excess created thereby but remedied in accordance with Section 3(c) below do not constitute any of the foregoing types of events).
3. Effective Date. The “Effective Date” shall occur upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received counterparts hereof executed by each Person for which a signature block is attached hereto.
(b) Each of the representations and warranties contained in this Amendment which speaks as of the Effective Date shall be true and correct in all respects on and as of the Effective Date.
(c) Borrower shall have delivered to the Administrative Agent on or prior to the Effective Date a Daily Report giving pro forma effect to the foregoing amendment and consent, and from the amount received from the proceeds of the Quitclaim Transaction, Borrower shall have paid to the Administrative Agent, in
immediately available funds, an amount equal to the amount, if any, of Funding Excess created by the foregoing amendment and consent.
(d) The Administrative Agent shall have received an execution copy of the FB Purchase Agreement and the FB Quitclaim executed and delivered by all parties thereto in form and substance reasonably satisfactory to Administrative Agent.
(e) The “Closing Date” pursuant to the FB Purchase Agreement shall have occurred, and the Sale Transaction and the Quitclaim Transaction shall have been consummated.
4. Reference to and Effect on the Related Documents.
(a) As applicable, on and after the Effective Date, each reference in the Funding Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import, and each reference in the other Related Documents to the Funding Agreement, shall mean and be a reference to the Funding Agreement as modified hereby.
(b) Except as specifically amended or consented to above, all of the terms of the Funding Agreement and all other Related Documents remain unchanged and in full force and effect.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or of Administrative Agent under any of the Related Documents, nor constitute an amendment, other than as set forth herein, or waiver of any provision of any of the Related Documents, nor obligate any Lender or Administrative Agent to agree to similar consents in the future.
(d) This Amendment shall constitute a Related Document.
5. Costs and Expenses. Borrower agrees to pay upon demand in accordance with the terms of Section 12.04 of the Funding Agreement all reasonable costs and expenses of the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment, including, without limitation, the reasonable fees, expenses and disbursements of Sidley Austin LLP, counsel for the Administrative Agent with respect to any of the foregoing.
6. Miscellaneous. The headings herein are for convenience of reference only and shall not alter or otherwise affect the meaning hereof.
7. Counterparts. This Amendment may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered by facsimile shall be an original, but all of which shall together constitute one and the same instrument.
8. GOVERNING LAW. THIS AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES) EXCEPT TO THE EXTENT THAT THE PERFECTION, EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF THE ADMINISTRATIVE AGENT IN THE RECEIVABLES OR REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
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IN WITNESS WHEREOF, Borrower, the Administrative Agent, and the Lenders, have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first above written.
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XXXXXX RECEIVABLES II, LLC |
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as the Borrower |
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By: |
/S/ XXXX X. XXXXXX, XX. |
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Name: |
Xxxx X. Xxxxxx, Xx |
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Title: |
Secretary |
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GENERAL ELECTRIC CAPITAL |
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CORPORATION |
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as Administrative Agent |
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By: |
/S/ XXXXX XXXXXXXXX |
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Name: Xxxxx Xxxxxxxxx |
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Duly Authorized Signatory |
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Commitment: $130,000,000 |
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GENERAL ELECTRIC CAPITAL |
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CORPORATION |
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as the Lender and Swing Line Lender |
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By: |
/S/ Xxxxx Xxxxxxxxx |
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Name: Xxxxx Xxxxxxxxx |
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Duly Authorized Signatory |
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ACKNOWLEDGED & AGREED: |
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XXXXXX, INC. |
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as Servicer |
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By: |
/S/ Xxxx X. Xxxxxx, Xx. |
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Name: Xxxx X. Xxxxxx, Xx. |
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Title: Secretary |
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Exhibit A
Quitclaim Agreement
SEE ATTACHED
ACCOUNTS RECEIVABLE ASSIGNMENT
THIS ACCOUNTS RECEIVABLE ASSIGNMENT (the “Accounts Receivable Assignment”) is entered into as of September 8, 2006 by and between XXXXXX RECEIVABLES II, LLC (“Assignor”) and SPICE ACQUISITION CORP (“Assignee”).
WHEREAS, Xxxxxx, Inc. and Webcraft, LLC and certain of their Affiliates other than Assigor (collectively “Business Seller”), are engaged in the business of the development, marketing, sale and production of multi-sensory sampling devices and renditions, including, without limitation, fragrance, cosmetics and toiletries-related sampling, labels, scent strips and single use packaging for fragrances, cosmetics and toiletries (the “Business”);
WHEREAS, Business Seller and Assignee, have entered into that certain Asset Purchase Agreement as of September 5, 2006 (the “Asset Purchase Agreement”) pursuant to which Business Seller has agreed to sell to Assignee, as Purchaser thereunder, the Business and certain assets used in or comprising the Business; and
WHEREAS, Assignor is the owner of accounts receivable arising out of the Business, and collateral and supporting obligations securing such accounts receivable (collectively, the “A/R Assets”),
NOW, THEREFORE
1. In consideration of the payment made by Assignee in the amount of $8,022,279 in immediately available funds remitted to Bank of America, N.A., Account No. 3751970318, ABA No. 000000000, upon receipt of such amount, the Assignor hereby sells, assigns, transfers and conveys, absolutely and without recourse, all of its right, title and interest in, to and under all of the A/R Assets.
2. Assignor covenants and agrees to execute and deliver, or cause to be executed and delivered, any and all agreements, instruments, papers, or deeds, as may be reasonably required by Assignee for the purpose of evidencing the vesting in Assignee of the property, rights, title and interests of the Assignor sold hereunder and the release of any liens created by Assignor, other than Permitted Liens (as defined in the Asset Purchase Agreement).
3. Assignor hereby authorizes Assignee to file a financing statement in the form attached as Exhibit A hereto. If Assignee causes a financing statement to be filed, Assignee hereby agrees to cause such financing statement to be terminated promptly following its receipt of payment from the obligors on the A/R Assets transferred hereunder.
4. Except as expressly stated herein, Assignor makes no other representations, warranties or covenants. We refer you to the representations, warranties and covenants made by Business Seller in the Asset Purchase Agreement with respect to the Assignor and the A/R Assets.
5. Wherever possible, each provision of this Accounts Receivable Assignment shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Accounts Receivable Assignment shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Accounts Receivable Assignment.
6. THIS ACCOUNTS RECEIVABLE ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES), AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
7. Assignee hereby agrees that from and after the date hereof, until the date that is one year and one day after all obligations of the Assignor under the Receivables Funding and Administration Agreement (and all amendments and replacements thereof) have terminated, it will not, directly or indirectly, institute or cause to be instituted against the Assignor any bankruptcy case, insolvency or dissolution proceedings.
IN WITNESS WHEREOF, the parties have caused this Accounts Receivable Assignment to be executed by their respective officers thereunto duly authorized, as of the day and year first above written.
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XXXXXX RECEIVABLES II, LLC, as |
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Assignor |
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By: |
/S/ Xxxx X. Xxxxxx, Xx. |
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Name: |
Xxxx X. Xxxxxx, Xx. |
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Title: |
Secretary |
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Agreed and accepted: |
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SPICE ACQUISITION CORP., as Assignee |
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By: |
/S/ Xxxx Xxxxxxxx |
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Name: |
Xxxx Xxxxxxxx |
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Title: |
SVP Finance |
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The undersigned, as Administrative Agent on behalf of the lenders under that certain Receivables Funding and Administration Agreement, dated as of November 25, 2005, among the Assignor, the financial institutions identified as lenders therein, and General Electric Capital Corporation, as Administrative Agent, consents and agrees to the sale, assignment and conveyance provided for herein and hereby releases any an all liens, security interests or other interests in the A/R Assets (and proceeds thereof, other than the purchase price paid as provided herein) conveyed hereunder, any and all such liens or security interest to attach to the purchase price provided herein.
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GENERAL ELECTRIC CAPITAL |
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CORPORATION, as Administrative Agent |
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By: |
/S/ Xxxxx Xxxxxxxxx |
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Name: |
Xxxxx Xxxxxxxxx |
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Title: |
Duly Authorized Signatory |
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