Exhibit 10.44
FIRST AMENDMENT TO GENERAL SECURITY AGREEMENT
(CASTLE BRANDS [USA] CORP.)
THIS FIRST AMENDMENT TO GENERAL SECURITY AGREEMENT (this "AMENDMENT"),
dated effective as of August 15, 2005, between CASTLE BRANDS [USA] CORP., a New
York corporation, having an office at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000 (together with its successors and/or assigns, "DEBTOR") and
JPMORGAN CHASE BANK, a New York corporation,, having an address at 000 Xxxxxx,
0xx Xxxxx, Xxxxxx, XX 00000 (together with its successors and assigns,
"TRUSTEE").
WITNESSETH:
WHEREAS, Debtor and the Trustee, joined by the Collateral Agent, have
heretofore entered into a Trust Indenture dated as June 1, 2004 (the "ORIGINAL
INDENTURE") authorizing the issuance of up to Five Million Dollars ($5,000,000)
of the Issuer's 8% Senior Secured Notes, Series 2004, due May 31, 2007 (the
"ORIGINAL NOTES");
WHEREAS, Debtor has heretofore issued Four Million Six Hundred Sixty
Thousand Dollars ($4,660,000) of Original Notes;
WHEREAS, Debtor desires to amend the terms of the Original Notes (i)
to extend the maturity date from May 31, 2007 to May 31, 2009, and (ii) to
increase the interest rate payable on the Original Notes from eight percent (8%)
to nine percent (9%) (hereinafter referred to as the "AMENDED NOTES");
WHEREAS, Debtor desires to amend the terms of the Original Indenture
(i) to authorize a maximum of Ten Million Dollars ($10,000,000) of Amended Notes
to be issued thereunder (inclusive of the $4,660,000 of outstanding Original
Notes being amended hereby) and (ii) to amend and restate the Original Indenture
to conform to the terms of the Amended Notes;
WHEREAS, Debtor's obligations under the Original Notes are secured by,
among other things, a General Security Agreement executed by Debtor and dated as
of June 1, 2004 (as may be further amended, supplemented, modified, restated,
renewed or extended from time to time, the "SECURITY AGREEMENT"), covering
certain Alcoholic Beverages, Receivables, Inventory and other assets of Debtor,
as more particularly described and as such terms are defined therein;
WHEREAS, Debtor and Trustee desire to make certain modifications to
the Security Agreement in connection with the issuance of the Amended Notes; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties hereto hereby covenant, agree,
represent and warrant that the Security Agreement is hereby amended as follows:
1. AMENDMENT: The definition of "OBLIGATIONS" of the Security
Agreement is hereby deleted in its entirety and replaced with the following:
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"Obligations" shall mean and include all loans, advances, debts,
liabilities, obligations, covenants and duties owing by Debtor under
the Trust Indenture, as amended, of any kind or nature, present or
future, whether or not evidenced by any note, guaranty or other
instrument, whether arising under this Agreement the other Secured
Notes Documents, the Amended Notes, or under any agreement or by
operation of law, whether or not for the payment of money, whether
arising by reason of an extension of credit loan, guaranty,
indemnification or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due
or to become due, now due or hereafter arising and however acquired,
including, without limitation, all interest, charges, expenses,
commitment, facility, collateral management or other fees, reasonable
attorneys' fees and expenses, and any other sum chargeable to Debtor
under this Security Agreement, the other Secured Notes Documents or
the Trust Indenture, as amended.
2. NO OTHER AMENDMENTS. Except as expressly amended hereby, the
Security Agreement shall remain in full force and effect in accordance with its
terms, without any waiver, amendment or modification of any provision thereof.
3. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which, when executed and delivered, will be deemed an
original and all of which taken together, will be deemed to be one and the same
instrument.
4. DEFINITIONS. All references herein or in the Secured Notes
Documents to the Security Agreement shall be deemed to include the Security
Agreement, as modified by this Amendment. Terms used but not otherwise defined
herein shall have the meaning set forth in the Security Agreement.
5. SUCCESSORS AND ASSIGNS. The terms and provisions of this Amendment
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, heirs, and assigns.
6. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their duly authorized representatives, all as of the day and
year first above written.
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DEBTOR:
CASTLE BRANDS [USA] CORP., a
Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman & CEO
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TRUSTEE:
JPMORGAN CHASE BANK., a New York
corporation
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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