Exhibit 4.32
GMAC COMMERCIAL FINANCE LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as of January 4, 2005
XXXXXX XXXXXXXXXX, INC.
PARLUX LTD.
0000 X.X. 00xx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Re: Amendment No. 4 to Loan and Security Agreement
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Gentlemen:
Reference is made to certain financing arrangements by and among XXXXXX
XXXXXXXXXX, INC. ("Fragrances") and PARLUX LTD. (each individually, a "Borrower"
and collectively, the "Borrowers") and GMAC Commercial Finance LLC, as successor
by merger to GMAC Commercial Credit LLC ("Lender") pursuant to certain financing
agreements with Borrowers, including, but not limited to, the Revolving Credit
and Security Agreement, dated as of July 20, 2001 (as amended, the "Credit
Agreement") entered into by and among Borrowers and Lender (the foregoing,
together with all related documents, agreements, guarantees, instruments or
notes delivered in connection therewith, as the same may now exist or may
hereafter be amended, modified, supplemented, renewed or extended, are
collectively referred to herein as the "Documents"). All capitalized terms used
and not otherwise defined herein shall have the respective meanings ascribed to
them in the Credit Agreement.
Borrowers have requested that Lender amend certain provisions of the
Credit Agreement, which Lender has agreed to do subject to the terms and
provisions set forth in this letter agreement (hereinafter, this "Amendment").
In consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
the respective agreements, warranties and covenants contained herein, the
parties hereto agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended, as of the date hereof, as follows:
(a) The definition of "Term" as set forth in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
""Term" shall mean the Closing Date through July 20, 2006, as
same may be extended in accordance with the provisions of Section 13.1
hereof."
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(b) Section 3.3(c) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"(c) Unused Line Fee. If, for any month during the Term, the
average daily unpaid balance of the Revolving Advances for each day of
such month does not equal the Maximum Loan Amount, then Borrowers shall
pay to Lender a fee at a rate equal to one-quarter of one percent
(0.25%) per annum on the amount by which the Maximum Loan Amount
exceeds such average daily unpaid balance. Such fee shall be payable to
Lender in arrears on the last day of each month."
(c) Section 3.3(e) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"(e) Collateral Monitoring Fee. Borrowers shall pay to Lender a
collateral monitoring fee (the "Collateral Monitoring Fee") for the
immediately preceding month in an amount equal to (i) Five Thousand
($5,000) Dollars if during such immediately preceding month Revolving
Advances were at any time outstanding, and (ii) Two Thousand Five
Hundred ($2,500) Dollars if during such immediately preceding month no
Revolving Advances were at any time outstanding. The Collateral
Monitoring Fee shall be fully earned when due and shall not be subject
to refund, rebate or proration for any reason whatsoever."
(d) Section 6.5 of the Credit Agreement (Tangible Net Worth) is
hereby amended and restated in its entirety as follows:
"[INTENTIONALLY OMITTED]"
(e) Section 6.8 of the Credit Agreement (Minimum Funded Debt/EBITDA
Ratio) is hereby amended and restated in its entirety as follows:
"[INTENTIONALLY OMITTED]"
(f) Section 13.1(c) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"(c) one percent (1%) of the Maximum Loan Amount if the
Prepayment Date occurs on or after the second anniversary of the
Closing Date to and including the date immediately preceding the fifth
(5th) anniversary of the Closing Date or prior to the end of any
extended term."
2. AMENDMENT FEE. In consideration of the amendments set forth herein,
Borrowers unconditionally agree to pay to Lender an amendment fee in the amount
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of Fifteen Thousand ($15,000) Dollars, which amendment fee shall be fully earned
and payable as of the date hereof. The amendment fee shall not be subject to
refund, rebate or proration for any reason whatsoever, and shall be charged by
Lender to any account of Borrowers maintained by Lender as of the date hereof.
3. RELEASE. As material consideration for the execution of this
agreement by Lender and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, effective as of the date
hereof, each Borrower for itself and on behalf of its respective directors,
officers, administrative agents, employees, representatives, successors and
assigns (collectively, the "releasors") hereby waives, releases, remises,
acquits and discharges Lender and all of its affiliates, directors, officers,
administrative agents, employees, representatives, shareholders, attorneys,
accountants, consultants, advisors, successors and assigns (Lender, together
with the foregoing collectively, the "releasees") of and from any and all
controversies, damages, costs, losses, causes of action, suits, judgments,
claims, recoupments, counter-claims or demands, of every type, kind, nature,
description or character, whether now existing or that could, might, or may be
claimed to exist, of whatever kind or name, whether known or unknown, liquidated
or unliquidated, fixed or contingent, foreseeable or unforeseeable, each as
though fully set forth herein at length, in law, admiralty or equity (any of the
foregoing, a "claim"), which any of the releasors previously had from the
beginning of the world or now have against any of the releasees through the date
hereof, related to or connected with the Credit Agreement and the other
Documents, the loans, advances or other financial accommodations provided by
Lender to Borrowers or any of them or the transactions contemplated by any of
the foregoing.
4. NO OTHER MODIFICATIONS; NO OTHER EVENT OF DEFAULT. Except as
specifically set forth herein, no other changes or modifications to the Credit
Agreement or any of the other Documents are intended or implied, and, in all
other respects, the Credit Agreement and the other Documents shall continue to
remain in full force and effect in accordance with their respective terms as of
the date hereof. Except as specifically set forth herein, nothing contained
herein shall evidence a waiver or amendment by Lender of any other provision of
the Documents. Lender hereby reserves all rights and remedies granted to Lender
under the Documents, applicable law or otherwise and nothing contained herein
shall be construed to limit, impair or otherwise affect the right of Lender to
declare a default or an Event of Default with respect to any future
non-compliance with any covenant, term or provision of the Documents now or
hereafter executed and delivered in connection therewith. Borrowers hereby
represent and warrant that no Event of Default exists after giving effect to the
provisions of this Amendment.
5. ENTIRE AGREEMENT. The terms and provisions of this Amendment shall
be for the benefit of the parties hereto and their respective successors and
assigns; no other person, firm, entity or corporation shall have any right,
benefit or interest under this Amendment. This Amendment sets forth the entire
agreement and understanding of the parties with respect to the matters set forth
herein. This Amendment cannot be changed, modified, amended or terminated except
in a writing executed by the party to be charged.
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6. EFFECTIVENESS. This Amendment shall not be effective unless and
until Lender shall have received an original or copy hereof, duly executed and
delivered by Borrowers.
7. COUNTERPARTS. This Amendment may be signed in counterparts, each of
which shall be an original and all of which taken together constitute one
amendment. In making proof of this Amendment, it shall not be necessary to
produce or account for more than one counterpart signed by the party to be
charged. Delivery of an executed counterpart of this Amendment by telefacsimile
shall have the same force and effect as the delivery of an original executed
counterpart of this Amendment. Any party delivering an executed counterpart of
this Amendment by telefacsimile shall also deliver an original executed
counterpart, but the failure to do so shall not affect the validity,
enforceability or binding effect of this Amendment.
Very truly yours,
GMAC COMMERCIAL FINANCE LLC
By: /s/ Xxxxxx Xxxx
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Senior Vice President
ACKNOWLEDGED AND AGREED:
XXXXXX XXXXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx .
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Executive V.P. / COO / CFO
PARLUX LTD.
By: /s/ Xxxxx X. Xxxxxxxxxxx .
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Executive V.P. / COO / CFO
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