Exhibit 10.46
FIRST AMENDMENT TO GUARANTY OF PAYMENT AND PERFORMANCE
THIS FIRST AMENDMENT TO GUARANTY OF PAYMENT AND PERFORMANCE (this
"AMENDMENT"), dated effective as of August 15, 2005, between CASTLE BRANDS,
INC., a Delaware corporation, with its principal place of business located at
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 ("GUARANTOR") 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, Castle Brands [USA] Corp. ("CB-US") 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, CB-US has heretofore issued Four Million Six Hundred Sixty
Thousand Dollars ($4,660,000) of Original Notes;
WHEREAS, CB-US 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, CB-US 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, CB-US's obligations under the Original Notes are secured by,
among other things, a Guaranty of Payment and Performance executed by Guarantor
and CB-US and dated as of June 1, 2004 (as may be further amended, supplemented,
modified, restated, renewed or extended from time to time, the "GUARANTY") in
favor of Trustee;
WHEREAS, Guarantor and Trustee desire to make certain modifications to
the Guaranty 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 Guaranty is hereby amended as follows:
1. AMENDMENT: The definition of "OBLIGATIONS" contained in Section
2.1(A) of the Guaranty 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 CB-US under
the Trust Indenture, as amended, or any Affiliate of Trustee of any
kind or nature, present or future, whether or not evidenced by any
note, guaranty or other instrument, whether arising under the 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 CB-US
under the Secured Notes Documents or the Trust Indenture, as amended,
or any other agreement with the Trustee.
2. NO OTHER AMENDMENTS. Except as expressly amended hereby, the
Guaranty 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 Guaranty shall be deemed to include the Guaranty, as modified
by this Amendment. Terms used but not otherwise defined herein shall have the
meaning set forth in the Guaranty.
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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GUARANTOR:
CASTLE BRANDS INC., 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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