Intercreditor amendment deed
Exhibit 10.6
EXECUTION VERSION
DATED | 2016 |
Intercreditor amendment deed
Between
Electronic Cigarettes International Group, Ltd
(as Borrower)
and
The persons named in Schedule 1
(as Guarantors)
and
The persons named in Schedule 2
(as Senior Creditors)
and
The persons named in Schedule 3
(as Subordinated Creditors)
and
Xxxxxx Xxxxxx Xxxxxx
(as Junior Security Trustee)
Table of contents
1. | definitions and interpretation | 1 |
2. | conditions precedent | 2 |
3. | amendments TO the original Inter-creditor Deed | 2 |
4. | COVENANTS | 2 |
5. | confirmation of existing security | 2 |
6. | continuity and further assurance | 2 |
7. | miscellaneous | 3 |
Schedule 1 GUARANTORS | 4 | |
SCHEDULE 2 SENIOR CREDITORS | 5 | |
SCHEDULE 3 subordinated creditors | 6 | |
SCHEDULE 4 conditions precedent | 7 | |
SCHEDULE 5 AMENDMENTS TO INTERCREDITOR DEED | 8 |
THIS DEED is made on | 2016 |
Between:
(1) | ELECTRONIC CIGARETTES INTERNATIONAL GROUP, LTD, registered in the State of Nevada, USA under number C13461-2004 whose registered office is at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx 00000, XXX (Borrower). |
(2) | THE PERSONS, whose details are set out in Schedule 1 (each a Guarantor and together the Guarantors). |
(3) | THE PERSONS, whose details are set out in Schedule 2 (each a Senior Creditor and together the Senior Creditors). |
(4) | THE PERSONS, whose details are set out in Schedule 3 (each a Subordinated Creditor and together the Subordinated Creditors). |
(5) | XXXXXX XXXXXX XXXXXX, of 0 Xxxxxxxxx Xxxx, Xxxxxxxxxx, X00 0XX as security agent and trustee for the Subordinated Creditors (Junior Security Trustee). |
Whereas:
(A) | The parties entered into an intercreditor deed dated 24 April 2015 as amended pursuant to an amendment letter dated 26 June 2015, an amendment letter dated 25 October 2015 and an amendment letter dated 11 January 2016 and as amended, varied, supplemented, novated or replaced from time to time (Original Intercreditor Deed). |
(B) | The parties hereto have agreed to amend the Original Intercreditor Deed as set out in this deed. |
IT IS AGREED as follows:
1. | definitions and interpretation |
1.1 | Terms defined in the Original Intercreditor Deed shall have the same meaning when used in this deed, unless defined below. In addition, the definitions below apply in this deed: |
Agreement No.5 to Credit Agreement: the amendment number 5 to the CW Credit Agreement dated on or around the date of this deed between the Borrower and the Senior Creditors amending the CW Credit Agreement to increase the aggregate principal amount of the Terms Loans thereunder by $4,000,000 and to, among other things, reduce the interest rate payable pursuant thereto and extend the term thereof.
CW Credit Agreement: the credit agreement dated 27 April 2015 between CW and the Borrower as amended pursuant to the Amendment No. 1 to the Credit Agreement dated 25 June 2015, the Amendment No. 2 to Credit Agreement dated 30 June 2015, the Amendment No. 3 to Credit Agreement dated 30 October 2015, the Amendment No. 4 to Credit Agreement dated 11 January 2016 (each as defined therein) and the Amendment No.5 to Credit Agreement.
CW: Calm Waters Partnership a Wisconsin General Partnership with registered office at 000 X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, XXX.
Effective Date: the date on which the CW informs the Borrower that the conditions precedent have been satisfied in accordance with clause 2.
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Original Intercreditor Deed: has the meaning given in recital (A).
1.2 | This deed is a Finance Document. |
1.3 | The rules of interpretation of the Original Intercreditor Deed shall (where relevant) apply to this deed as if set out in this deed save that references in the Original Intercreditor Deed to "this deed" shall be construed as references to this deed. |
1.4 | In this deed: |
1.4.1 | any reference to a "clause" or "Schedule" is, unless the context otherwise requires, a reference to a clause of Schedule of this deed; and |
1.4.2 | clause and Schedule headings are for ease of reference only. |
2. | conditions precedent |
2.1 | The Effective Date is conditional on CW having received all of the documents and evidence specified in Schedule 4 in the form and substance, and containing the information, that it requires. |
2.2 | On satisfaction of the conditions precedent referred to in clause 2.1, CW shall promptly notify the Borrower in writing that those conditions have been satisfied. |
3. | amendments TO the original Inter-creditor Deed |
With effect on and from the Effective Date, the Original Intercreditor Deed shall be amended as set out in Schedule 5.
4. | COVENANTS |
4.1 | The Borrower and the Guarantor make the covenants set out in clause 3 of the Original Intercreditor Deed on the date of this deed and on the Effective Date. |
4.2 | The Subordinated Creditors and Junior Security Trustee make the covenants set out in clause 4 of the Original Intercreditor Deed on the date of this deed and the Effective Date. |
5. | confirmation of existing security |
The Borrower confirms, acknowledges and agrees that the Senior Security and the Junior Security shall continue in full force and effect in all respects and such security documents and this deed shall be read and construed together.
6. | continuity and further assurance |
6.1 | The provisions of the Original Intercreditor Deed shall, save as amended in this deed, continue in full force and effect. |
6.2 | The Borrower and Guarantors shall, at the request of CW and at their own expense, do all such acts and things necessary or desirable to give effect to the provisions of this deed. |
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7. | miscellaneous |
7.1 | The provisions of clauses 18 – 30 of the Original Intercreditor Deed shall apply to this deed as if set out in full and so that references in those provisions to "this deed" shall be construed as references to this deed and references to "party" or "parties" shall be construed as references to parties to this deed. |
7.2 | This deed may be executed and delivered in any number of counterparts, each of which is an original and which, together, have the same effect as if each party had signed the same document. |
This deed has been entered into on the date stated at the beginning of it.
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Schedule 1
GUARANTORS
Name |
Company Number | Registered Office | ||
Must Have Limited
|
05101019 |
Units 0-0 Xxxx Xxxxx Xxxxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxx Xxxx Xxxxxxxxxx X00 0XX | ||
E-CIGS UK Holding Company Limited
|
09031860 | 00 Xxxxxx Xxxxxx Xxxxxx X0X 0XX | ||
Vapestick Holdings Limited | 07777233 |
00 Xxxxxxxx XX0X 0XX | ||
Xxxxxxxx Interactive Acquisition Company | Delaware 5543781 |
Corporations USA, LLC 000 Xxxxx Xxxxxx Xxxxxxx, XX Xxxxxx xx Xxxx, 00000 XXX | ||
Victory Electronic Cigarettes, Inc. | Nevada E0117932013-0 |
Nevada Agency and Transfer Company 00 Xxxx Xxxxxxx Xxxxxx Xxxxx 000 Xxxx Xxxxxx Xxxxxx of Xxxxxx, 00000 XXX | ||
VCIG LLC | Delaware 5477751 |
Corporations USA, LLC 000 Xxxxx Xxxxxx Xxxxxxx, XX Xxxxxx xx Xxxx, 00000 XXX | ||
FIN Branding Group, LLC | Illinois 03606309 |
National Registered Agents Inc. 000 Xxxxx XxXxxxx Xxxxxx Xxxxx 000 Xxxxxxx Xxxxxxxx, 00000 XXX |
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SCHEDULE
2
SENIOR CREDITORS
Name | Address | |
Calm Waters Partnership
|
000 X. 00xx Xxxxxx Xxxxx 000 Xxxxxxxxx Xxxxxxxxx 00000 XXX | |
Tiburon Opportunity Fund, L.P. acting in its capacity as agent for itself and each of the lenders signatory to the Co-Investor Credit Agreement |
13313 Point Richmond Beach Road NW Gig Harbor XX 00000 XXX | |
Tiburon Opportunity Fund, L.P. acting in its capacity as agent for each noteholder to a Secured Convertible Note |
13313 Point Richmond Beach Road NW Gig Harbor XX 00000 XXX |
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SCHEDULE 3
subordinated creditors
Name | Address | |
Xxxxx Xxxxxx Xxxxx |
0 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx X00 0XX | |
Xxxxxxx Xxxxx |
0 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx X00 0XX | |
Xxxxxx Xxxxxx Xxxxxx |
0 Xxxxxxxxx Xxxx Xxxxxxxxxx X00 0XX | |
Xxxxx Xxxxx |
0 Xxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxx XX0 0XX |
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SCHEDULE
4
conditions precedent
1. | A certificate, signed by a director of the Borrower and each Guarantor stating that there has been no change in name and no change to its constitutional documents since 27 April 2015. |
2. | A copy of the resolutions duly passed by the Borrower's and each Guarantor's board of directors: |
2.1.1 | approving the entry into, terms of and transactions contemplated by this deed; and |
2.1.2 | authorising specified persons to execute this deed on its behalf and take all other action in connection with this deed. |
3. | A specimen of the signature of each person authorised by the resolutions referred to in paragraph 2 in relation to this deed. |
4. | This deed, duly executed by each party. |
5. | The Agreement No.5 to Credit Agreement, duly executed by each party and the satisfaction of the conditions of borrowing set out in section 3 thereof. |
6. | The power of attorney for Xxxxx Xxxxx appointing Xxxxx Xxxxxx Xxxxx to execute this deed on his behalf, duly executed. |
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SCHEDULE 5
AMENDMENTS TO INTERCREDITOR DEED
The Original Intercreditor Deed shall be amended as set out below:
1. | The definition of "Senior Creditors" at Schedule 2 shall be deleted and replaced by the following: |
Name | Address | |
Calm Waters Partnership |
000 X. 00xx Xxxxxx Xxxxx 000 Xxxxxxxxx Xxxxxxxxx 00000 XXX | |
Tiburon Opportunity Fund, L.P. acting in its capacity as agent for itself and each of the lenders signatory to the Co-Investor Credit Agreement |
13313 Point Richmond Beach Road NW Gig Harbor XX 00000 XXX | |
Tiburon Opportunity Fund, L.P. acting in its capacity as agent for each noteholder to a Secured Convertible Note |
13313 Point Richmond Beach Road NW Gig Harbor XX 00000 XXX |
2. | The definition of "Senior Debt" in clause 1.1 (Definitions) shall be deleted and replaced with the following: |
"Senior Debt: all Liabilities which are or may become payable or owing by the Borrower and/or a Guarantor to any Senior Creditor under the Senior Debt Documents or the Secured Convertible Notes together with all Ancillary Liabilities relating thereto."
3. | The definition of "Senior Debt Documents" in clause 1.1 (Definitions) shall be deleted and replaced with the following: |
"Senior Debt Documents: any document referred to in Schedule 4."
4. | The following definition shall be added to clause 1.1 (Definitions): |
"Secured Convertible Note: each of:
(a) | the 15% senior secured convertible note dated 14 January 2014 (as amended in January 2015 by amendment no. 1 and to be amended by amendment no. 2 on or around the Effective Date) delivered by the Borrower to each holder of each such note; |
(b) | the 15% senior secured convertible note dated 28 February 2014 (as amended in January 2015 by amendment no. 1 and to be amended by amendment no. 2 on or around the Effective Date) delivered by the Borrower to each holder of each such note; and |
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(c) | the 8% senior secured convertible note dated 14 January 2014 (to be amended by amendment no. 1 on or around the Effective Date) delivered by the Borrower to each holder of each such note, |
and, together, the Secured Convertible Notes."
5. | Schedule 4 (Senior Debt Documents) shall be deleted and replaced with the following: |
"Part 1: Senior Lending Documents
Senior Credit Agreements.
Part 2: Senior Security Documents
Share charge between the Borrower and Calm Waters Partnership in respect of the Borrower's shares in Must Have Limited, dated on or about the date of this deed.
Share charge between the Borrower and Calm Waters Partnership in respect of the Borrower's shares in Vapestick Holdings Limited, dated on or about the date of this deed.
Share charge between the Borrower and Calm Waters Partnership in respect of the Borrower's shares in E-Cigs UK Holding Company Limited, dated on or about the date of this deed.
Guarantee between each Guarantor and Calm Waters Partnership, dated on or about the date of this deed.
Debenture between Must Have Limited and Calm Waters Partnership, dated on or about the date of this deed.
Debenture between Vapestick Holdings Limited and Calm Waters Partnership, dated on or about the date of this deed.
Debenture between E-Cigs UK Holding Company Limited and Calm Waters Partnership, dated on or about the date of this deed.
Security Agreement between Tiburon Opportunity Fund, L.P. (as agent for the noteholders to each Secured Convertible Note) and the Borrower dated 14 January 2014."
6. | Clause 2.3 (Ranking and subordination of debt) shall be deleted and replaced with the following: |
"2.3 | Ranking and subordination of debt |
2.3.1 | Each of the parties agree that the Senior Debt and the Junior Debt shall rank on a pari passu basis. |
2.3.2 | No payments shall (except as otherwise provided in this deed) be made by any person in respect of the Junior Debt while the Senior Debt is outstanding." |
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7. | Clause 2.4 (Ranking and subordination of security) shall be deleted and replaced with the following: |
"2.4 | Ranking and subordination of debt |
Each of the parties agree that all Senior Security and Junior Security shall rank on a pari passu basis."
8. | Clause 4.1.6 (No payment, Security or guarantee) shall be deleted and replaced with the following: |
"4.1.6 | modify, amend, waive or release any term of the Junior Debt Documents, except for an amendment which does not prejudice any Senior Debt, the Senior Creditors or impair the subordination or priorities contemplated in this deed." |
9. | Clause 7.1.1 (Subordination on insolvency) shall be deleted and replaced with the following: |
"7.1.1 | the Junior Debt and the Senior Debt shall rank on a pari passu basis;" |
10. | Clause 11.1 (Continuing subordination) shall be deleted and the sub-clauses in clause 11 shall be renumbered accordingly. |
11. | Clause 16.1 (Priorities) shall be deleted and replaced with the following: |
"16.1 | Priorities |
The priority of the Creditors shall stand (regardless of the order of execution, registration or notice or otherwise) so that all amounts from time to time received or recovered by a Creditor pursuant to the terms of any Debt Document or in connection with the realisation or enforcement of all or any part of the Security constituted by any of the Security Documents shall, after providing for all reasonable outgoings, costs, charges, expenses and liabilities of enforcement, exercising rights on winding up and payments ranking in priority as a matter of law, be applied in the following order of priority:
16.1.1 | first, in or towards discharge of the Senior Debt or, as the case may be, the Junior Debt on a pari passu basis; and |
16.1.2 | second, after the Senior Debt and Junior Debt has been fully discharged, to the Borrower and the Guarantors or any other person entitled to it." |
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EXECUTION PAGES
Borrower | ||
EXECUTED as a deed on behalf of | ||
ELECTRONIC CIGARETTES | ||
INTERNATIONAL GROUP, LTD., a | ||
Nevada corporation by |
||
Authorised Signatory | ||
being [a] person[s] who, in accordance | Authorised Signatory | |
with the laws of that territory, [is OR are] | ||
acting under the authority of the | ||
corporation |
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Guarantors |
||
EXECUTED as a deed on behalf of VICTORY ELECTRONIC CIGARETTES, INC., a Nevada corporation by |
||
Authorised Signatory | ||
being [a] person[s] who, in accordance with the laws of that territory, [is OR are] acting under the authority of the corporation |
Authorised Signatory |
EXECUTED as a deed on behalf of VCIG LLC, a Delaware corporation by |
||
Authorised Signatory | ||
being [a] person[s] who, in accordance with the laws of that territory, [is OR are] acting under the authority of the corporation |
Authorised Signatory |
EXECUTED as a deed on behalf of FIN BRANDING GROUP, LLC, an Illinois corporation by |
||
Authorised Signatory | ||
being [a] person[s] who, in accordance
with the laws of that territory, [is OR are] acting under the authority of the corporation |
Authorised Signatory |
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EXECUTED as a deed on behalf of HARDWIRE INTERACTIVE ACQUISITION COMPANY, a Delaware corporation by |
||
Authorised Signatory | ||
being [a] person[s] who, in accordance with the laws of that territory, [is OR are] acting under the authority of the corporation |
Authorised Signatory |
EXECUTED as a deed by MUST HAVE | ||
LIMITED acting by | ||
a director | Director | |
in the presence of |
Witness: | |||
Signature: | |||
Name: | |||
Address: | |||
Occupation: |
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EXECUTED as a deed by VAPESTICK HOLDINGS LIMITED acting by |
||
a director | Director | |
in the presence of |
Witness: | |||
Signature: | |||
Name: | |||
Address: | |||
Occupation: |
EXECUTED as a deed by E-CIGS UK HOLDING COMPANY LIMITED acting by |
||
a director | Director | |
in the presence of |
Witness: | |||
Signature: | |||
Name: | |||
Address: | |||
Occupation: |
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Senior Creditors | ||
EXECUTED as a deed on behalf of CALM WATERS PARTNERSHIP., a Wisconsin general partnership, acting by |
||
Authorised Signatory | ||
being [a] person[s] who, in accordance with the laws of that territory, [is OR are] acting under the authority of the partnership |
Authorised Signatory |
EXECUTED as a deed on behalf of TIBURON OPPORTUNITY FUND, L.P., a Delaware limited partnership, acting by |
||
Authorised Signatory | ||
being [a] person[s] who, in accordance with the laws of that territory, [is OR are] acting under the authority of the partnership |
Authorised Signatory |
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EXECUTED as a deed on behalf of TIBURON OPPORTUNITY FUND, L.P., a Delaware limited partnership, acting by |
||
Authorised Signatory | ||
being [a] person[s] who, in accordance with the laws of that territory, [is OR are] acting under the authority of the partnership | Authorised Signatory | |
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Subordinated Creditors | ||
EXECUTED as a deed by XXXXXXX XXXXX |
||
in the presence of | Xxxxxxx Xxxxx |
Witness: | |||
Signature: | |||
Name: | |||
Address: | |||
Occupation: |
EXECUTED as a deed by XXXXX XXXXXX XXXXX |
||
in the presence of | Xxxxx Xxxxxx Xxxxx |
Witness: | |||
Signature: | |||
Name: | |||
Address: | |||
Occupation: |
EXECUTED as a deed by XXXXX XXXXXX XXXXX as attorney for XXXXX XXXXX |
||
in the presence of | Xxxxx Xxxxxx Xxxxx as attorney for Xxxxx Xxxxx | |
Witness: | |||
Signature: | |||
Name: | |||
Address: | |||
Occupation: |
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EXECUTED as a deed by XXXXXX XXXXXX XXXXXX |
||
in the presence of | Xxxxxx Xxxxxx Xxxxxx |
Witness: | |||
Signature: | |||
Name: | |||
Address: | |||
Occupation: |
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Junior Security Trustee
EXECUTED as a deed by XXXXXX XXXXXX XXXXXX |
||
in the presence of | Xxxxxx Xxxxxx Xxxxxx |
Witness: | |||
Signature: | |||
Name: | |||
Address: | |||
Occupation: |
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