Exhibit 4.31
as of August 16, 2004
XXXXXX XXXXXXXXXX, INC.
PARLUX LTD.
0000 X.X. 00xx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Re: Amendment No. 3 to Revolving Credit and Security Agreement
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 Borrowers be permitted to repurchase a
portion of its common stock and to 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 the respective agreements,
warranties and covenants contained herein, the parties hereto agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Section 7.7 of the Credit Agreement
is hereby amended and restated in its entirety as follows:
"7.7. Dividends. Declare, pay or make any dividend or
distribution on any shares of the common stock or preferred stock of
any Borrower (other than dividends or distributions payable in its
stock, or split-ups or reclassifications of its stock) or apply any
of its funds, property or assets to the purchase, redemption or
other retirement of any common or preferred stock, or of any options
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to purchase or acquire any such shares of common or preferred stock
of any Borrower; provided, that, upon the prior written consent of
Lender, each Borrower may purchase any of its outstanding common
stock through the NASDAQ, in compliance with all securities laws,
rules and regulations; except that, notwithstanding anything to the
contrary contained in the Credit Agreement, including Sections 7.4
(Investments), 7.8 (Indebtedness) and this Section 7.7, (a) on or
prior to December 31, 2004, Fragrances may repurchase shares of its
common stock for an aggregate purchase price not to exceed
$7,500,000, provided, that, with respect to such repurchase, each of
the following conditions are satisfied: (i) as of the date of each
such repurchase and after giving effect thereto, (A) Borrower shall
have Undrawn Availability of not less than $1,000,000, and (B) no
Default or Event of Default shall exist or have occurred and be
continuing; (ii) all amounts payable in respect thereof shall be
paid with funds legally available therefor; (iii) such repurchase
shall not violate any law or regulation or the terms of any
indenture, agreement or undertaking to which any Borrower is a party
or by which any Borrower or its or their property are bound; and
(iv) the aggregate principal amount of all payments to be made in
connection with such repurchase(s) shall not exceed $7,500,000 in
the aggregate; and (b) from and after August 16, 2004, Fragrances
may repurchase shares of its common stock for an aggregate purchase
price not to exceed $8,000,000, provided, that, with respect to such
repurchase, each of the following conditions are satisfied: (i) as
of the date of each such repurchase and after giving effect thereto,
(A) Borrowers shall have Undrawn Availability of not less than
$5,000,000, and (B) no Default or Event of Default shall exist or
have occurred and be continuing; (ii) all amounts payable in respect
thereof shall be paid with funds legally available therefor; (iii)
such repurchase shall not violate any law or regulation or the terms
of any indenture, agreement or undertaking to which any Borrower is
a party or by which any Borrower or its or their property are bound;
and (iv) the aggregate principal amount of all payments to be made
in connection with such repurchase(s) shall not exceed $8,000,000 in
the aggregate."
2. 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
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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.
3. 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. Without in any way limiting
the foregoing, Borrowers acknowledge, confirm and agree that effective as of the
date hereof, the amendment to Section 7.7 of the Credit Agreement as set forth
in this Amendment contains the entire understanding among Borrowers and Lender
with respect to the subject matter set forth therein and supersedes all prior
agreements and understandings, if any, relating thereto.
4. 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.
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto. This Amendment may be executed and delivered via telecopier
with the same force and effect as if it were a manually executed and delivered
counterpart.
Very truly yours,
GMAC COMMERCIAL FINANCE LLC
(as successor by merger to GMAC Commercial
Credit LLC)
By: /s/ Xxxxxx Xxxxxxxx
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Title: Vice President
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ACKNOWLEDGED AND AGREED:
XXXXXX XXXXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Title: Executive Vice President / COO / CFO
PARLUX LTD.
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Title: Executive Vice President / COO / CFO
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