EXHIBIT 4.26
FORBEARANCE AND AMENDMENT AGREEMENT
THIS FORBEARANCE AND AMENDMENT AGREEMENT (this "Agreement"), dated as
of May 25, 2000, is made by and between PARLUX, LTD., a New York corporation
("Borrower"), XXXXXX XXXXXXXXXX, INC., a Delaware corporation ("Parent") and
GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation acting in its
capacities as the Agent and the sole Lender under the Credit Agreement described
below ("GE Capital").
W I T N E S S E T H:
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WHEREAS, GE Capital, Parent and Borrower have entered into certain
financing arrangements pursuant to the Credit Agreement, dated as of May 24,
1997, as amended, by and among GE Capital, Parent and Borrower (as the same may
be amended, modified, supplemented, extended, renewed, restated or replaced from
time to time, the "Credit Agreement"); and
WHEREAS, as of the date hereof, Borrower is in default under the Credit
Agreement as more particularly described as the Specified Defaults below; and
WHEREAS, the Specified Defaults constitute Events of Default under the
Credit Agreement; and
WHEREAS, Borrower has requested that GE Capital forbear from exercising
its rights as a result of such Events of Default, which are continuing, and that
GE Capital provide further Revolving Credit Loans and other financial
accommodations to Borrower notwithstanding such Events of Default; and
WHEREAS, GE Capital is willing to agree to forbear from exercising
certain of its rights and remedies and provide certain further Revolving Credit
Loans and other financial accommodations to Borrower for the period and on the
terms and conditions specified herein;
NOW, THEREFORE, in consideration of the foregoing, and the respective
agreements, warranties and covenants contained herein, the parties hereto agree,
covenant and warrant as follows:
SECTION 1. DEFINITIONS
1.1 Interpretation. All capitalized terms used herein (including the
recitals hereto) shall have the respective meanings assigned thereto in the
Credit Agreement unless otherwise defined herein.
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1.2 Additional Definitions. As used herein, the following terms shall
have the respective meanings given to them below and the Credit Agreement is
hereby amended to include, in addition and not in limitation, each of the
following definitions:
(a) "Specified Defaults" shall mean the failure on the part of
the Credit Parties to comply with the following covenants during or as of the
end of the periods described below: (i) the Restricted Payment covenant in
Section 6.15 of the Credit Agreement during the Fiscal Months ended December 31,
1999, January 31, 2000, February 29, 2000, March 31, 2000, April 30, 2000 and
May 31, 2000, (ii) the employee and officer loan covenant in Section 6.2(iii) of
the Credit Agreement during the Fiscal Months ended December 31, 1999, January
31, 2000, February 29, 2000, March 31, 2000, April 30, 2000 and May 31, 2000,
(iii) the minimum Tangible Net Worth covenant in part (b) of Schedule 6.11 to
the Credit Agreement as of the end of the Fiscal Quarters ended December 31,
1999 and March 31, 2000, (iv) the minimum Fixed Charge Coverage Ratio in part
(c) of Schedule 6.11 to the Credit Agreement for the Fiscal Months ended
December 31, 1999, January 31, 2000, February 29, 2000, March 31, 2000, April
30, 2000 and May 31, 2000, (v) the maximum Capital Expenditure covenant in part
(f) of Schedule 6.11 for the Credit Agreement for the Fiscal Year ended March
31, 2000, and (vi) the minimum Current Ratio in part (d) of Schedule 6.11 to the
Credit Agreement for the Fiscal Quarter ended March 31, 2000.
(b) "Forbearance Period" shall have the meaning set forth in
Section 3.2(a) hereof.
SECTION 2. ACKNOWLEDGMENTS
2.1 Acknowledgment of Obligations. Each of Borrower and Parent hereby
acknowledges, confirms and agrees that as of the close of business on May 24,
2000, Borrower and Parent are indebted to GE Capital in respect of the Revolving
Credit Loans and the Letter of Credit Obligations in the aggregate principal
amount of $12,116,198.95. All such Obligations, together with interest accrued
and accruing thereon, and fees, costs, expenses and other charges now or
hereafter payable by Borrower or Parent to GE Capital, are unconditionally owing
by Borrower and Parent to GE Capital, all without offset, defense or
counterclaim of any kind, nature or description whatsoever.
2.2 Acknowledgment of Liens. Each of Borrower and Parent hereby
acknowledges, confirms and agrees that GE Capital has and shall continue to have
valid, enforceable and perfected first-priority liens upon and security
interests in the Collateral heretofore granted to GE Capital pursuant to the
Loan Documents or otherwise granted to or held by GE Capital.
2.3 Binding Effect of Documents. Each of Borrower and Parent hereby
acknowledges, confirms and agrees that: (a) each of the Loan Documents to which
it is a party has been duly executed and delivered to GE Capital by such Credit
Party, and each is in full force and effect as of the date hereof, (b) the
agreements and obligations of such Credit Party contained in such documents and
in this Agreement constitute the legal, valid and binding obligations of such
Credit Party, enforceable against it in accordance with their respective terms,
and such Credit Party
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has no valid defense to the enforcement of such obligations, and (c) GE Capital
is and shall be entitled to the rights, remedies and benefits provided for it in
the Loan Documents and applicable law.
SECTION 3. FORBEARANCE IN RESPECT OF SPECIFIED DEFAULTS
3.1 Acknowledgment of Defaults. Each of Borrower and Parent hereby
acknowledges and agrees that the Specified Defaults have occurred and are
continuing and constitute Events of Default which entitle GE Capital to exercise
its rights and remedies under the Loan Documents, applicable law or otherwise.
Each of Borrower and Parent hereby acknowledges and agrees that GE Capital has
the presently exercisable right to declare the Obligations to be immediately due
and payable under the terms of the Loan Documents. GE Capital has not waived,
presently does not intend to waive and may never waive any of the Specified
Defaults and nothing contained herein or the transactions contemplated hereby
shall be deemed to constitute any such waiver.
3.2 Forbearance.
(a) In reliance upon the representations, warranties and
covenants of Borrower and Parent contained in this Agreement, and subject to the
terms and conditions of this Agreement and any documents or instruments executed
in connection herewith, GE Capital agrees to forbear from exercising its rights
and remedies under the Loan Documents or applicable law in respect of or arising
out of the Specified Defaults, subject to the conditions, amendments and
modifications contained herein for the period (the "Forbearance Period")
commencing on the date hereof and ending on the earlier of: (i) August 29, 2000
or (ii) the occurrence or existence of any Event of Default other than the
Specified Defaults.
(b) Upon the termination of the Forbearance Period, the
agreement herein of GE Capital to forbear shall automatically and without
further action terminate and be of no force and effect, it being expressly
agreed that the effect of such termination will be to permit GE Capital to
exercise such rights and remedies immediately, including, but not limited to,
(i) ceasing to make any further Loans and (ii) the acceleration of all of the
Obligations; in either case without any further notice, passage of time or
forbearance of any kind.
3.3 No Other Waivers; Reservation of Rights.
(a) GE Capital has not waived, is not by this Agreement
waiving, and may never waive, any Events of Default which may be continuing on
the date hereof or any Events of Default which may occur after the date hereof
(whether the same or similar to the Specified Defaults or otherwise), and GE
Capital has not agreed to forbear with respect to any of its rights or remedies
concerning any Events of Default (other than, during the Forbearance Period, the
Specified Defaults to the extent expressly set forth herein), which may have
occurred or are continuing as of the date hereof or which may occur after the
date hereof.
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(b) Subject to Section 3.2 above (and solely with respect to
the Specified Defaults), GE Capital reserves the right, in its discretion, to
exercise any or all of its rights and remedies under the Credit Agreement and
the other Loan Documents as a result of any Events of Default which may be
continuing on the date hereof or any Event of Default which may occur after the
date hereof, and GE Capital has not waived any of such rights or remedies, and
nothing in this Agreement, and no delay on its part in exercising any such
rights or remedies, should be construed as a waiver of any such rights or
remedies.
3.4 Fee. In consideration of the agreements set forth herein, Borrower
shall pay to GE Capital a fee in the amount of $50,000, which fee shall be fully
earned as of the date hereof. Such fee is in addition to all other fees,
interest, costs and expenses payable in connection with the Loan Documents and
may be charged by GE Capital to any account of Borrower maintained by GE
Capital. The aforesaid fee shall be fully earned by GE Capital notwithstanding
any failure by Borrower to comply with any other term of this Agreement.
SECTION 4. AMENDMENT AND SUPPLEMENTARY PROVISIONS
4.1 Reduction of Maximum Revolving Credit Loans. Borrower, Parent and
GE Capital hereby agree that, effective from and after the date of this
Agreement, the definition of the term "Maximum Revolving Credit Loans" in Annex
A to the Credit Agreement shall be amended to read as follows:
"Maximum Revolving Credit Loans" shall mean $15,000,000.
4.2 Extending Commitment Termination Date. Subject to the terms and
conditions of this Agreement, Borrower, Parent and GE Capital hereby agree that,
effective from and after the date of this Agreement (but subject to the
fulfillment of the conditions set forth in Section 6 hereof), the definition of
the term "Commitment Termination Date" in Annex A to the Credit Agreement shall
be amended by deleting the reference to the date "May 29, 2000" in clause (i)
thereof and by substituting in lieu thereof a reference to the date "August 29,
2000."
4.3 No Further Stock Purchases. Borrower, Parent and GE Capital hereby
agree that, effective from and after the date of this Agreement, Section 6.15 of
the Credit Agreement shall be amended to read as follows:
6.15 Restricted Payments. Parent shall not make any Restricted
Payments and no Credit Party shall purchase, redeem or
otherwise acquire any Stock issued by Parent.
4.4 Strict Compliance. GE Capital hereby notifies Parent and Borrower
that, effective from and after the date of this Agreement, GE Capital intends to
enforce all of the provisions of the Loan Documents, including without
limitation the provisions of Section 6.15 of the Credit Agreement that, among
other things, prohibits the Credit Parties from making any further purchases of
the Parent's Stock and that GE Capital expects that the Credit Parties will
strictly comply with
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the terms of the Loan Documents (including without limitation Section 6.15 of
the Credit Agreement) from and after this date. Without limiting the generality
of the foregoing, Parent and Borrower acknowledge and agree that any purchase
after the date of this Agreement by any Credit Party of any of the Parent's
Stock shall constitute an immediate Event of Default which will terminate the
Forbearance Period and entitle GE Capital to exercise its rights and remedies as
Agent and sole Lender under the Loan Documents, applicable law or otherwise.
4.5 Audits. The Agent shall be permitted to conduct monthly or more
frequent audits and field examinations of the Collateral and Borrower agrees to
pay to the Agent a field examination fee of $600.00 per day per person plus
actual out-of-pocket expenses in connection with such audits and field
examinations.
4.6 Revised Fixed Charge Coverage Ratio Covenant. Subject to the terms
and conditions of this Agreement, Borrower, Parent and GE Capital hereby agree
to delete part (c) of Schedule 6.11 to the Credit Agreement and to substitute
the following revised part (c) in lieu thereof:
(c) Minimum Fixed Charge Coverage Ratio. Parent shall have, at
the end of each Fiscal Month set forth below (measured in each case,
based on the consecutive 12-month period ending at the end of such
Fiscal Month), a Fixed Charge Coverage Ratio of not less than the ratio
set forth below for each such Fiscal Month:
Minimum Fixed Charge
Period Coverage Ratio
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Fiscal Month ending July 31, 1999 0.9: 1.0
Any Fiscal Month ending on or after June 30, 2000 0.5: 1.0
Any Fiscal Month ending on or after 1.0: 1.0
September 30, 1999 but prior to June 30, 2000
Any Fiscal Month Ending on or after June 30, 2000 0.5: 1.0
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS
Each of Borrower and Parent hereby further represents, warrants and
covenants with and to GE Capital as follows:
5.1 Representations in Loan Documents. Each of the representations and
warranties made by or on behalf of each Credit Party to GE Capital in any of the
Loan Documents was true and correct when made and in all material respects is,
except for the representation and warranty set
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forth in the Credit Agreement relating to the non-existence of an Event of
Default, true and correct on and as of the date of this Agreement with the same
full force and effect as if each of such representations and warranties had been
made by such Credit Party on the date hereof and in this Agreement.
5.2 Binding Effect of Documents. This Agreement and the other Loan
Documents have been duly executed and delivered to GE Capital by such Credit
Party and are in full force and effect, as modified hereby.
5.3 No Conflict, Etc. The execution and delivery and performance of
this Agreement by such Credit Party will not violate any law, rule, regulation
or order or contractual obligation of such Credit Party and will not result in,
or require, the creation or imposition of any Lien on any of its properties or
revenues.
5.4 Additional Events of Default. The parties hereto acknowledge,
confirm and agree that any misrepresentation by any Credit Party in, or any
failure of any Credit Party to comply with the covenants, conditions and
agreements contained in, this Agreement shall constitute an Event of Default
under the Credit Agreement.
SECTION 6. CONDITIONS TO EFFECTIVENESS OF CERTAIN PROVISIONS
The effectiveness of the terms and provisions of Section 3.2 and
Section 4.2 of this Agreement shall be subject to the receipt by GE Capital of
an original of this Agreement, duly authorized, executed and delivered by
Borrower and Parent together with payment of the fee specified in Section 3.4
above.
SECTION 7. PROVISIONS OF GENERAL APPLICATION
7.1 Effect of this Agreement. Except as modified pursuant hereto, no
other changes or modifications to the Loan Documents are intended or implied and
in all other respects the Loan Documents are hereby specifically ratified,
restated and confirmed by all parties hereto as of the effective date hereof. To
the extent of conflict between the terms of this Agreement and the other Loan
Documents, the terms of this Agreement shall control. The Credit Agreement and
this Agreement shall be read and construed as one agreement.
7.2 Costs and Expenses. Borrower absolutely and unconditionally agrees
to pay to GE Capital, on demand by GE Capital at any time and as often as the
occasion therefor may require, whether or not all or any of the transactions
contemplated by this Agreement are consummated: all fees and disbursements of
any counsel to GE Capital in connection with the preparation, negotiation,
execution, or delivery of this Agreement and any agreements delivered in
connection with the transactions contemplated hereby and expenses which shall at
any time be incurred or sustained by GE Capital or any participant of GE Capital
or any of their respective directors, officers, employees or agents as a
consequence of or in any way in connection with the preparation, negotiation,
execution, or delivery of this Agreement and any agreements prepared,
negotiated,
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executed or delivered in connection with the transactions contemplated hereby.
7.3 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
7.4 Survival of Representations and Warranties. All representations and
warranties made in this Agreement or any other document furnished in connection
with this Agreement shall survive the execution and delivery of this Agreement
and the other documents, and no investigation by GE Capital or any closing shall
affect the representations and warranties or the right of GE Capital to rely
upon them.
7.5 Release.
(a) In consideration of the agreements of GE Capital contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each of Borrower and Parent, on
behalf of itself and its successors, assigns, and other legal representatives,
hereby absolutely, unconditionally and irrevocably releases, remises and forever
discharges GE Capital, and its successors and assigns, and its present and
former shareholders, affiliates, subsidiaries, divisions, predecessors,
directors, officers, attorneys, employees, agents and other representatives (GE
Capital and all such other Persons being hereinafter referred to collectively as
the "Releasees" and individually as a "Releasee"), of and from all demands,
actions, causes of action, suits, covenants, contracts, controversies,
agreements, promises, sums of money, accounts, bills, reckonings, damages and
any and all other claims, counterclaims, defenses, rights of set-off, demands
and liabilities whatsoever (individually, a "Claim" and collectively, "Claims")
of every name and nature, known or unknown, suspected or unsuspected, both at
law and in equity, which such Credit Party or any of its successors, assigns, or
other legal representatives may now or hereafter own, hold, have or claim to
have against the Releasees or any of them for, upon, or by reason of any
circumstance, action, cause or thing whatsoever which arises at any time on or
prior to the day and date of this Agreement, including, without limitation, for
or on account of, or in relation to, or in any way in connection with the Credit
Agreement or any of the other Loan Documents or transactions thereunder or
related thereto.
(b) Each of Borrower and Parent understands, acknowledges and
agrees that its release set forth above may be pleaded as a full and complete
defense and may be used as a basis for an injunction against any action, suit or
other proceeding which may be instituted, prosecuted or attempted in breach of
the provisions of such release.
(c) Borrower and Parent agree that no fact, event,
circumstance, evidence or transaction which could now be asserted or which may
hereafter be discovered shall affect in any manner the final, absolute and
unconditional nature of the release set forth above.
7.6 Covenant Not to Xxx. Each of Borrower and Parent, on behalf of
itself and its successors, assigns, and other legal representatives, hereby
absolutely, unconditionally and irrevocably, covenants and agrees with and in
favor of each Releasee that it will not xxx (at law, in
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equity, in any regulatory proceeding or otherwise) any Releasee on the basis of
any Claim released, remised and discharged by such Credit Party pursuant to
Section 7.5 above. If Borrower, Parent or any of their respective successors,
assigns or other legal representations violates the foregoing covenant, Borrower
and Parent, for themselves and their successors, assigns and legal
representatives, jointly and severally agree to pay, in addition to such other
damages as any Releasee may sustain as a result of such violation, all
attorneys' fees and costs incurred by any Releasee as a result of such
violation.
7.7 Severability. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement.
7.8 Reviewed by Attorneys. Each of Borrower and Parent represents and
warrants to GE Capital that it (a) understands fully the terms of this Agreement
and the consequences of the execution and delivery of this Agreement, (b) has
been afforded an opportunity to have this Agreement reviewed by, and to discuss
this Agreement and document executed in connection herewith with, such attorneys
and other persons as such Credit Party may wish, and (c) has entered into this
Agreement and executed and delivered all documents in connection herewith of its
own free will and accord and without threat, duress or other coercion of any
kind by any Person. The parties hereto acknowledge and agree that neither this
Agreement nor the other documents executed pursuant hereto shall be construed
more favorably in favor of one than the other based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to
the negotiation and preparation of this Agreement and the other documents
executed pursuant hereto or in connection herewith.
7.9 Governing Law. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE
LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS
ARISING UNDER THE LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES
THEREOF REGARDING CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement.
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IN WITNESS WHEREOF, this Agreement is executed and delivered as of the
day and year first above written.
PARLUX, LTD.
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Title: Executive V.P. / COO / CFO
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XXXXXX XXXXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Title: Executive V.P. / COO / CFO
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GENERAL ELECTRIC CAPITAL CORPORATION,
as the Agent and sole Lender
By: /s/ Xxxxx X. Xxxxxxx
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Title: Duly Authorized Signatory
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