1
Exhibit 10.72
COSMAR CORPORATION
RENAISSANCE COSMETICS, INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As of May 29, 0000
Xxxxxx Xxxxxxx Xxxxxxx Inc.,
Individually and as Collateral Agent
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Amendment No.4 and Waiver to Note Purchase Agreement
and Amendment No.2 to Security Documents
Ladies and Gentlemen:
Reference is hereby made to the Note Purchase Agreement, dated as of
December 21, 1994, as amended or otherwise modified by Waiver No. 1 to Note
Purchase Agreement, dated as of December 22, 1994, Waiver No. 2 to Note Purchase
Agreement, dated as of January 12, 1995, Waiver No. 3 to Note Purchase
Agreement, dated as of February 28, 1995, Waiver No. 4 to Note Purchase
Agreement, dated as of March 24, 1995, Amendment No. 1 and Waiver to Note
Purchase Agreement, dated as of April 7, 1995 ("Amendment No. 1"), Amendment No.
2 to Note Purchase Agreement, dated as of September 8, 1995, Waiver to Note
Purchase Agreement, dated as of September 18, 1995, Waiver to Note Purchase
Agreement, dated as of December 22, 1995, Amendment No. 3 and Consent to Note
Purchase Agreement, dated as of January 8, 1996, Limited Waiver to Note Purchase
Agreement, dated as of February 13, 1996 (as so amended, the "Note Purchase
Agreement"), each among Cosmar Corporation, a Delaware corporation (the
"Company"), Renaissance Cosmetics, Inc., a Delaware corporation (the "Parent"),
and Nomura Holding America Inc. (together with its successors and assigns, the
"Purchaser"). All capitalized terms used in this amendment and waiver letter
(this "Amendment") and not otherwise defined herein shall have the meanings
ascribed thereto in the Note Purchase Agreement.
A. Pursuant to a Plan and Agreement of Merger, dated as of March 25,
1996, and as permitted pursuant to Section 10.4 of the Note Purchase Agreement,
each of Parfums, LPD, DPC and RII have merged (the "Merger") with and into New
Xxxx, and New Xxxx has changed its name to "Xxxx Perfumes Corp.". In connection
with the Merger, effective as of March 29, 1996, Parfums has assigned all its
Intellectual Property to DPC pursuant to a Trademark Assignment dated March 29,
1996. The Company, the Parent and New Xxxx would like to amend certain of the
schedules to
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Amendment No. 4 and Waiver
to Note Purchase Agreement
Dated As of May 29, 1996
Page 2
the Note Purchase Agreement and the Security Documents to reflect the names or
their Subsidiaries, the record ownership of the Capital Stock of such
Subsidiaries and the respective places of business of such Subsidiaries after
giving effect to the Merger and the purchase of the Capital Stock of Xxxx Brazil
referred to below. The Company and the Parent have also requested a waiver of
any default under Section 10.17 that may have resulted from their failure to
give advance notice of such changes to the Purchaser.
B. New Xxxx has exercised the option under the Xxxx Brazil Option
Agreement and has purchased substantially all of the Capital Stock of Xxxx
Brazil. The Company and the Parent have requested a waiver of any default under
Section 10.4 of the Note Purchase Amendment that resulted from their failure to
obtain the Purchaser's prior consent to such purchase. The Company and the
Parent have also requested a waiver of the requirement under Section 9.5 of the
Note Purchase Agreement that Xxxx Brazil enter into mortgages in favor of the
Collateral Agent with respect to the real property now owned by Xxxx Brazil.
C. Pursuant to a Securities Purchase Agreement, dated as of May 29,
1996 (the "Securities Purchase Agreement"), among the Parent and CIBC WG Argosy
Merchant Fund 2, L.L.C. ("CIBC"), the Parent has authorized the issuance of up
to $20,000,000 aggregate liquidation value of its Senior Exchangeable Redeemable
Preferred Stock, Series A, $.01 par value ("Senior Exchangeable Preferred
Stock"). The Parent has requested a waiver of the requirements of Section 3.1(b)
of the Note Purchase Agreement that the Net Cash Proceeds from the sale by the
Parent of any of its Capital Stock be applied to prepay the Notes, in order to
permit the Parent to retain 100% of the Net Cash Proceeds from the sale of up to
$20,000,000 liquidation value of its Senior Exchangeable Preferred Stock to CIBC
pursuant to the Securities Purchase Agreement and to use such proceeds for
working capital purposes and to make a deposit or deposits of up to an aggregate
of $600,000 in connection with the acquisition (or attempted acquisition) of
Great American Cosmetics, Inc. (the "Great American Deposits"), and, at any time
after the Parent has sold an aggregate of $20,000,000 liquidation value of its
Senior Exchangeable Preferred Stock to CIBC pursuant to the Securities Purchase
Agreement, to make an additional deposit or deposits in connection with any
Pending Acquisition (as such term is defined in the Securities Purchase
Agreement) ("Additional Deposits").
D. The Company and the Parent have requested that the Purchaser amend
the provisions of Section 10.12 and Section 10.19 of the Note Purchase Agreement
in
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Amendment No. 4 and Waiver
to Note Purchase Agreement
Dated As of May 29, 1996
Page 3
certain respects as they relate to periods ending on March 31, 1996, and the
Purchaser has indicated it is willing to do so on the terms and conditions
hereof.
Accordingly, the Company, the Parent, and, by your acceptance hereof,
the Purchaser and the Collateral Agent, hereby agree as follows:
1. Amendments. Effective on and as of the Effective Date referred to
below, the definition of the terms "New ACB", "New Xxxx" and "Wholly-owned
Subsidiary" in the Note Purchase Agreement, Sections 10.12 and 10.19 of the Note
Purchase Agreement, the Schedules to the Note Purchase Agreement, the Company
Security Agreement (as amended by an Amendment, dated as of July 31, 1995), the
Intellectual Property Security Agreement and the U.S. Subsidiary Security
Agreement (as amended by an Amendment, dated as of July 31, 1995), between New
Xxxx and the Collateral Agent (the "New Xxxx U.S. Subsidiary Security
Agreement"), and Section 7.2 of the New Xxxx U.S. Subsidiary Security Agreement,
respectively, are amended as follows:
(a) Note Purchase Agreement.
(i) the definitions of the terms "New ACB" and "New
Xxxx" in Section 1.1 of the Note Purchase Agreement are deleted and replaced as
follows:
"New ACB" means Houbigant (1995) Limited/Houbigant
(1995) Limitee, a Canadian corporation formerly known
as 3088766 Canada Limited which is a direct
Wholly-owned Subsidiary of the Company.
"New Xxxx" means Xxxx Perfumes Corp., a Delaware
corporation and the surviving corporation in the
merger of each of Parfums, LPD, DPC and RII with and
into New Xxxx Acquisition Corp., a direct
Wholly-owned Subsidiary of the Company.";
(ii) the definition of the term "Wholly-owned
Subsidiary" in Section 1.1 of the Note Purchase Agreement is amended by adding
to the end of the clause, "other than director's qualifying shares," in the
third line of said definition the following language:
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Amendment No. 4 and Waiver
to Note Purchase Agreement
Dated As of May 29, 1996
Page 4
"or, in the case of any Foreign Subsidiary, shares
representing not more than 1% of the outstanding
Capital Stock of such Foreign Subsidiary which are
owned of record by an officer of the Parent, the
Company or such Foreign Subsidiary";
(iii) Section 10.12 of the Note Purchase Agreement is
amended by deleting the number "$500,000" from the parenthetical added to said
Section by Section 2(c) of Amendment No. 1 and substituting the number
"$600,000" in lieu thereof;
(iv) Section 10.19 of the Note Purchase Agreement is
amended as follows: (A) the ratio "1.50:1.00" appearing opposite the Fiscal
Quarter Ended March 31, 1996, in subsection (a) of said Section is deleted and
replaced by the ratio "1.15:1.00"; (B) the number "$26,000,000" appearing in
clause (i) of subsection (b) of said Section is deleted and replaced by the
number "$18,000,000"; (C) the ratio "4.00:1.00" appearing opposite the Fiscal
Quarter Ended March 31, 1996, in subsection (c) of said Section is deleted and
replaced by the ratio "7.25:1.00"; and (D) the amount "$16,000,000" appearing
opposite the Measuring Date March 31, 1996, in subsection (d) of said Section is
deleted and replaced by the amount "$15,500,000"; and
(v) Schedules 4.4 (Capital Stock), 4.6
(Subsidiaries), 4.29 (Places of Business), and 4.30 (Other Names) to the Note
Purchase Agreement are replaced in their entirety by the Note Purchase Agreement
Schedules 4.4, 4.6, 4.29 and 4.30 which are attached to this Amendment;
(b) Company Security Agreement. Schedule 2 (Pledged Stock) to
the Company Security Agreement is replaced in its entirety by the Company
Security Agreement Schedule 2 which is attached to this Amendment;
(c) Intellectual Property Security Agreement. Annex A
(Trademarks) to the Intellectual Property Security Agreement is replaced in its
entirety by the Intellectual Property Agreement Annex A which is attached to
this Amendment; and
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Amendment No. 4 and Waiver
to Note Purchase Agreement
Dated As of May 29, 1996
Page 5
(d) New Xxxx U.S. Subsidiary Security Agreement.
(i) Section 7.2 of the New Xxxx U.S. Subsidiary Security
Agreement is amended by adding the following new subsection (f) to the
end of said Section immediately following clause (e) of said Section
(added pursuant to the Amendment, dated as of July 31, 1995):
"(f) Brazilian Pledged Stock. Promptly upon becoming
entitled to receive the Pledged Stock of any Issuer organized
under the laws of Brazil (each a "Brazilian Issuer"), the
Subsidiary shall execute and deliver a pledge agreement in
favor of the Collateral Agent in substantially the form of
Annex III hereto (a "Brazilian Pledge Agreement") and shall
promptly comply with each term and condition of such Brazilian
Pledge Agreement, including, without limitation, to promptly
register a copy thereof at the Registry of Commercial
Companies of the Brazilian State of incorporation of such
Brazilian Issuer.";
(ii) the New Xxxx U.S. Subsidiary Security Agreement is
amended by adding the form of Brazilian Pledge Agreement attached
hereto as Annex III thereto; and
(iii) Schedule 2 (Pledged Stock) to the New Xxxx U.S.
Subsidiary Security Agreement is deleted and replaced in its entirety
by the U.S. Subsidiary Security Agreement Schedule 2 which is attached
to this Amendment.
2. Waiver. Effective on and as of the Effective Date referred to below,
the Purchaser waives
(a) the requirements under Section 3.1(b) of the Note Purchase
Agreement solely to permit the Parent to retain 100% of the Net Cash
Proceed from the sale of $20,000,000 liquidation value of its Senior
Exchangeable Preferred Stock (and any Senior Exchangeable Preferred
Stock issuable as a dividend on such Senior Exchangeable Preferred
Stock) to CIBC pursuant to the Securities Purchase Agreement (the
"Preferred Stock Sale"); provided that on any date on which any of such
Net Cash Proceeds are received by the Parent, the Parent shall promptly
contribute such Net Cash Proceeds to the
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Amendment No. 4 and Waiver
to Note Purchase Agreement
Dated As of May 29, 1996
Page 6
Company to be used by the Company for working capital or other purposes
permitted by the Note Purchase Agreement, including, without limitation, to
prepay outstanding amounts under the Revolving Notes and to make the Great
American Deposits and the Additional Deposits permitted hereunder (and the
requirements under Section 9.10 or such other applicable provision of the Note
Purchase Agreement, if any, which might prohibit the Parent from issuing and
selling the Senior Exchangeable Preferred Stock to CIBC pursuant to the
Securities Purchase Agreement and retaining the proceeds thereof for the uses
permitted hereunder solely to permit such issuances, sales and such uses of
those proceeds; provided however, that nothing herein shall waive any
restriction on the ability of the Parent and its Subsidiaries to make any
Restricted Payment under Section 10.7 of the Note Purchase Agreement, any
restriction contained in Section 10.8 of the Note Purchase Agreement, any
restriction on the ability of the Parent and its Subsidiaries to enter into any
of the Exchange Documents under Section 10.1 of the Note Agreement, or, except
as specifically provided herein with respect to such issuances, sales and such
uses of those proceeds, any other restriction contained in the Note Purchase
Agreement on the ability of the Parent and its Subsidiaries to exercise any
rights with respect to the Senior Exchangeable Preferred Stock so issued);
(b) any Default or Event of Default that resulted
(i) under Section 7(i) or Section 10.4 of the Note Purchase
Agreement, solely from the Company's and the Parent's failure to obtain
the prior consent of the Purchaser to the purchase of the Capital Stock
of Xxxx Brazil,
(ii) under Section 7(i) or Section 10.17 of the Note Purchase
Agreement, solely as a result of the Company's and the Parent's failure
to give the Purchaser prior notice pursuant to said Section 10.17 of the
matters more particularly set forth in the revised Schedules to the Note
Purchase Agreement and the Security Documents which are attached to this
Amendment, and
(iii) under Section 7(i), Section 10.12 or Section 10.19 of
the Note Purchase Agreement, solely as a result of the amendments
addressed
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Amendment No. 4 and Waiver
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Dated As of May 29, 1996
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in Section 1(a)(iii) and (iv) of this Amendment not having
been effective prior to the Effective Date;
(c) the requirements under Sections 9.5 and 9.6 of the Note
Purchase Agreement, solely as they relate to the obligation of Xxxx
Brazil to mortgage to the Collateral Agent any real property now owned
by Xxxx Brazil and, until June 21, 1996, as such requirements relate to
the delivery of the documents more particularly identified in Section 3
hereof; and
(d) the requirements of Section 10.7 of the Note Purchase
Agreement (and any other applicable provision of the Note Purchase
Agreement), solely to permit the Company (i) to make Great American
Deposits up to an aggregate of not more than $600,000 of such deposits,
and (ii) at any time after the Parent has sold an aggregate of
$20,000,000 liquidation value of its Senior Exchangeable Preferred
Stock to CIBC pursuant to the Securities Purchase Agreement (without
giving effect to the liquidation value of any Senior Exchangeable
Preferred Stock issued as a dividend on any such Senior Exchangeable
Preferred Stock), to make Additional Deposits; provided however, after
giving effect to any Great American Deposit or Additional Deposit the
aggregate amount of all such deposits shall not exceed $2,000,000; and
provided further, that nothing in this Section 2(d) shall waive any
requirement under Section 10.4 of the Note Purchase Agreement with
respect to any Pending Acquisition (other than that the Company may
make the deposits with respect thereto permitted hereunder).
3. Subsidiary Guarantee, etc. On or before June 21, 1996, the Company
shall, or shall cause its Subsidiaries, to deliver to the Purchaser each of the
following documents, each in form and substance satisfactory to the Purchaser:
(a) a Subsidiary Guarantee, duly executed and delivered by
Xxxx Brazil;
(b) a Subsidiary Security Agreement, duly executed and
delivered by Xxxx Brazil;
(c) a Commitment to Provide a Mortgage Guarantee, duly
executed by the Company and Xxxx Brazil;
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Amendment No. 4 and Waiver
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Dated As of May 29, 1996
Page 8
(d) a Brazilian Pledge Agreement in substantially the form of
Annex III to the New Xxxx U.S. Subsidiary Security Agreement, duly
executed by New Xxxx;
(e) evidence that the pledge of the Capital Stock of Xxxx
Argentina has been perfected in the manner set forth in Section 7.2(b)
of the New Xxxx U.S. Subsidiary Security Agreement;
(f) the certificate(s) representing the outstanding Capital
Stock of Xxxx Brazil, together with powers of attorney duly executed by
New Xxxx and the officer of the Parent designated to be the holder of
record of one share of such Capital Stock, respectively; and
(g) a satisfactory opinion of the Company's local counsel in
Brazil addressing those matters set forth in Exhibit F-5 to the Note
Purchase Agreement.
4. Conditions to Effectiveness. This Amendment shall become effective
on the date (the "Effective Date") on which the Purchaser has received all of
the following documents:
(a) a counterpart of this Amendment, duly executed and
delivered by the Parent and the Company;
(b) the acknowledgement and agreement attached to this
Amendment, duly executed and delivered by each Subsidiary of the Company
which has entered into a Subsidiary Guarantee;
(c) such form UCC-3 amendments and form UCC-1 financing
statements as the Collateral Agent may request;
(d) an Assignment for Security in the form of Appendix I to
the Intellectual Property Security Agreement, duly executed and
delivered by New Xxxx; and
(e) a certificate from an Authorized Officer of the Company
dated the Effective Date, certifying as to the matters set forth in
Section 5 of this Amendment.
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Amendment No. 4 and Waiver
to Note Purchase Agreement
Dated As of May 29, 1996
Page 9
5. Representations and Warranties: No Default or Event of Default. Each
of the Company and the Parent hereby represents, warrants, covenants and agrees
as follows, on and as of the Effective Date after giving effect to this
Amendment:
(a) the representations and warranties contained in Section
4.1 through 4.35; inclusive and elsewhere in the Note Purchase
Agreement, and the representations and warranties contained in the
Related Documents shall be true and correct on and as of the Effective
Date with the same effect as if such representations and warranties had
been made on and as of the Effective Date, except that any such
representation or warranty which is expressly made only as of a
specified date need be true only as of such date; and
(b) no Default or Event of Default shall have occurred and be
continuing.
6. Effect of Amendment. It is hereby agreed that, except as
specifically provided herein, this Amendment does not in any way amend, modify,
affect or impair the terms, conditions and other provisions of the Note Purchase
Agreement, the Notes or the Related Documents, or the obligations of the
Company, the Parent or New Xxxx thereunder, and all terms, conditions and other
provisions of the Note Purchase Agreement, the Notes and the Related Documents
shall remain in full force and effect except to the extent specifically amended
or otherwise specifically modified pursuant to the provisions of this Amendment.
If any representation or warranty in this Amendment shall fail to be true and
correct in any material respect, such failure and any failure to fully satisfy
any other term or condition of this Amendment shall automatically, and without
the requirement of any notice to the Company or the Parent, constitute an Event
of Default under the Note Purchase Agreement.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which taken
together shall be deemed to constitute one and the same instrument.
8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
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Amendment No. 4 and Waiver
to Note Purchase Agreement
Dated As of May 29, 1996
Page 10
If the foregoing is acceptable, please sign and return a copy of this
Amendment to indicate your agreement to the terms hereof.
Very truly yours,
COSMAR CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Title: VP
RENAISSANCE COSMETICS, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Title: VP
Accepted and Agreed as
of date first above written
NOMURA HOLDING AMERICA INC.,
Individually and as Collateral Agent
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Title: Attorney-in-Fact
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Amendment No. 4 and Waiver
to Note Purchase Agreement
Dated As of May 29, 1996
Page 11
ACKNOWLEDGEMENT AND AGREEMENT
The terms and provisions of the foregoing Amendment No. 4 and Waiver to
Note Purchase Agreement and Amendment No. 2 to Security Documents, dated as of
May 29, 1996 (the "Fourth Amendment"), with respect to the Note Purchase
Agreement, dated as of December 21, 1994, as amended or otherwise modified by
Waiver No. 1 to Note Purchase Agreement, dated as of December 22, 1994, Waiver
No. 2 to Note Purchase Agreement, dated as of January 12, 1995, Waiver No. 3 to
Note Purchase Agreement, dated as of February 28, 1995, Waiver No. 4 to Note
Purchase Agreement, dated as of March 24, 1995, Amendment No. 1 and Waiver to
Note Purchase Agreement, dated as of April 7, 1995, Amendment No. 2 to Note
Purchase Agreement, dated as of September 8, 1995, Waiver to Note Purchase
Agreement, dated as of September 18, 1995, Waiver to Note Purchase Agreement,
dated as of December 22, 1995, Amendment No. 3, Waiver and Consent to Note
Purchase Agreement, Limited Waiver to Note Purchase Agreement, dated as of
February 13, 1996 (as so amended, the "Note Purchase Agreement"), each among
Cosmar Corporation, a Delaware corporation (the "Company"), Renaissance
Cosmetics, Inc., a Delaware corporation (the "Parent"), and Nomura Holding
America Inc., a Delaware corporation (together with its successors and assigns,
collectively, the "Purchaser"), and the Security Documents referred to in the
Note Purchase Agreement, and the transactions contemplated by the Note Purchase
Agreement and the Security Documents as amended by the Fourth Amendment, are
hereby severally and not jointly acknowledged and agreed to by each of the
undersigned Subsidiaries of the Company, and each hereby severally and not
jointly confirms its respective Subsidiary Guarantee with respect to the
Obligations under, and as the foregoing capitalized terms are defined in, the
Note Purchase Agreement, as so amended, and New Xxxx hereby confirms its
agreement to the amendment of the U.S Subsidiary Security Agreement to which it
is a party in the manner provided in Section 1(d) of the Fourth Amendment.
This Acknowledgement and Agreement may be executed by each Subsidiary
of the Company in any number of counterparts, each of which shall be deemed an
original, and all of which taken together shall be deemed to constitute one and
the same instrument.
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Amendment No. 4 and Waiver
to Note Purchase Agreement
Dated As of May 29, 1996
Page 12
IN WITNESS WHEREOF, each of the undersigned has caused this
Acknowledgement and Agreement to be executed and delivered by its respective
duly authorized officer as of the date first above written.
XXXX PERFUMES CORP.
HOUBIGANT (1995) LIMITED/
HOUBIGANT (1995) LIMITEE
XXXX PERFUMES (CANADA) LTD.
XXXX S.A.
PERFUMES XXXX S.A.I.C.
FINANCIERA DE PERFUMERIA S.A.
ESTALVI S.A.
MARCAFIN S.A.
C.O.M.I.N.S.A.
PERFUMES AND COSMETICS IMPORTERS, INC.
PARFUMS XXXX EXPORT CORP.
RSH 149, S.A.R.L.
PERFUMES XXXX DO BRASIL, S.A.
By /s/ Xxxx X. Xxxxxxx
---------------------------
Title: VP
(of each party hereto)
