EXHIBIT 10.117
HSBC
July 29, 2004
Jean Philippe Fragrances, LLC.
551 Fifth Avenue
New York, N.Y. 10176
Attention Russell Greenberg, Chief Financial Officer/Executive Vice President
Ladies and Gentlemen:
We are pleased to confirm that we are extending to you a line
of credit of up to an aggregate amount of $12,000,000 outstanding at any one
time, which line may be used by your company for direct borrowings and
acceptance and sight letters of credit exposure for working capital purposes
provided, however, the outstanding amount as to which our Bank is liable,
directly or contingently, on behalf of your company in respect of letter of
credit and acceptance financings cannot in the aggregate at any one time exceed
$2,500,000 and $2,500,000 respectively. This line is subject to the provisions
set forth herein and in the other documents entered into in connection with this
facility.
Borrowings under this line of credit shall be evidenced by a
Demand Grid Note, a copy of which is enclosed. Under this facility borrowings
may be made from time to time and shall be repayable on demand, but may be
prepaid in whole or in part with accrued interest to the date of prepayment. Any
amounts outstanding shall bear interest, payable monthly in arrears, at a
variable rate per annum equal to 0% above our Bank's Reference Rate established
from time to time, all as more fully set forth in the Demand Grid Note.
Or, at your option, you may borrow under a LIBOR Pricing
Revolving Note up to the maximum amount of $12,000,000 in $100,000 increments,
provided however, the amount outstanding under LIBOR Pricing Revolving Notes is
no less than $500,000, with advances priced at your option of one month, two
months, three months or six months LIBOR plus 1.75% for each LIBOR rate advance
and subject to the terms of the LIBOR Pricing Revolving Note; a copy of the
LIBOR Pricing Revolving Note is attached herewith. Please note that the advances
under the LIBOR Pricing Revolving Note may be prepaid, but only subject to the
terms and conditions set forth in that note.
Each letter of credit issued for your account shall be issued
only pursuant to our standard form of application for commercial letter of
credit (the "Application"), as executed by you from time to time. You shall pay
a fee of 1/8 of 1% when we issue any letter of credit for your account and each
time we amend any such letter of credit. In addition, you shall pay a fee of l/8
of 1% of the face amount of any sight draft presented to us in accordance with
the terms of any letter of credit we issue for your account. Such fee shall be
payable when such draft is presented to us and honored by us, all as more fully
set forth in the Application. Any amounts due to us from you under the
Application shall bear interest payable on demand at a variable rate per annum
equal to the rate from time to time in effect under the Demand Grid Note. At our
option such amounts may be deemed additional advances evidenced by and repayable
in accordance with the Demand Grid Note.] In place of the foregoing demand
reimbursement obligation, we may from time to time accept your time drafts of up
to 180 days presented to us by you. When such time draft is accepted by us it
will be discounted from its date of maturity at a rate per annum equal to 2%
plus our acceptance rate for commercial drafts or bills of exchange of
comparable amounts and maturities.
Your obligations under this line of credit shall be guaranteed by your
Parent, Inter Parfums, Inc.
This facility may be utilized by you for the period ending July 31,
2005; provided, however, THE CONTINUING AVAILABILITY OF THIS FACILITY IS AT ALL
TIMES SUBJECT TO OUR CONTINUING SATISFACTION, AS DETERMINED BY OUR BANK IN ITS
SOLE AND ABSOLUTE DISCRETION, WITH THE BUSINESS, AFFAIRS AND FINANCIAL CONDITION
OF YOUR COMPANIES AND OF EACH GUARANTOR AND TO YOUR COMPLIANCE, AND THAT OF EACH
OTHER PARTY EXECUTING AND DELIVERING DOCUMENTS TO US HEREUNDER OR OTHERWISE IN
CONNECTION WITH THIS FACILITY, WITH THE TERMS AND PROVISIONS OF THIS LETTER AND
EACH OF THE DOCUMENTS REFERRED TO HEREIN. In addition, the continuing
availability of this facility is subject to your furnishing us, (i) within 120
days after the close of your fiscal year, with your audited financial statements
certified by your independent certified public accountants as of the end of such
period, including a balance sheet and related income statements; and (ii) such
other information, including interim financial statements, concerning your
business, affairs or financial condition as we may from time to time request.
All payments of principal, interest and fees payable by you
under this facility shall be made in immediately available funds at our office
at 452 Fifth Avenue, New York, New York 10018 and may be charged to any account
you maintain with us.
Our agreement to extend to you this facility, on the terms set
forth herein, is further subject to our receipt in form satisfactory to us of
(a) a certified copy of resolutions of your Board of Directors authorizing your
execution, delivery and performance of this agreement (and the documents
hereinafter referred to; (b) signature cards for your authorized signatories;
(c) an executed copy of our Demand Grid Note signed by your duly authorized
officer on your behalf; (d) executed copy of our standard form of Guarantee
signed by Inter Parfums, Inc.
NO AMENDMENT, MODIFICATION OR WAIVER OF ANY PROVISION OF THIS AGREEMENT
NOR CONSENT TO ANY DEPARTURE BY OUR BANK THEREFROM SHALL BE EFFECTIVE,
IRRESPECTIVE OF ANY COURSE OF DEALING, UNLESS THE SAME SHALL BE IN WRITING AND
SIGNED BY OUR BANK AND THEN SUCH WAIVER OR CONSENT SHALL BE EFFECTIVE ONLY IN
THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE FOR WHICH GIVEN.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York. Please note that to the extent any of the
terms or provisions of this agreement conflict with those contained in the
Demand Grid Note or any of the above-mentioned documents, the terms and
provisions of such Note and of such other documents shall govern.
YOU AND OUR BANK AGREE THAT ANY ACTION, SUIT OR PROCEEDING IN RESPECT
OF OR ARISING OUT OF THIS AGREEMENT, THE NOTE OR ANY OTHER DOCUMENTS RELATING TO
THIS FACILITY MAY BE INITIATED AND PROSECUTED IN THE STATE OR FEDERAL COURTS, AS
THE CASE MAY BE, LOCATED IN NEW YORK COUNTY, NEW YORK.
YOU FURTHER AGREE THAT ANY ACTION, DISPUTE, PROCEEDING, CLAIM OR
CONTROVERSY BETWEEN OR AMONG YOU AND US WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE ("DISPUTE" OR "DISPUTES") SHALL, AT OUR ELECTION, WHICH ELECTION MAY
BE MADE AT ANY TIME PRIOR TO THE COMMENCEMENT OF A JUDICIAL PROCEEDING BY OUR
BANK, OR IN THE EVENT OF A JUDICIAL PROCEEDING INSTITUTED BY YOU AT ANY TIME
PRIOR TO THE LAST DAY TO ANSWER AND/OR RESPOND TO A SUMMONS AND/OR COMPLAINT
MADE BY YOU, BE RESOLVED BY ARBITRATION IN NEW YORK, NEW YORK IN ACCORDANCE WITH
THE PROVISIONS OF THIS PARAGRAPH AND SHALL, AT THE ELECTION OF OUR BANK, INCLUDE
ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH (I) THIS AGREEMENT, THE DEMAND
GRID NOTE, OR ANY OTHER RELATED AGREEMENTS OR INSTRUMENTS, (II) ALL PAST,
PRESENT AND FUTURE AGREEMENTS INVOLVING THE PARTIES, (III) ANY TRANSACTION
CONTEMPLATED HEREBY AND ALL PAST, PRESENT AND FUTURE TRANSACTIONS INVOLVING THE
PARTIES AND (IV) ANY ASPECT OF THE PAST, PRESENT OR FUTURE RELATIONSHIP OF THE
PARTIES. We may elect to require arbitration of any Dispute with us without
thereby being required to arbitrate all Disputes between you and us. Any such
Dispute shall be resolved by binding arbitration in accordance with Article 75
of the New York Civil Practice Law and Rules and the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). In the event of any
inconsistency between such Rules and these arbitration provisions, these
provisions shall supersede such Rules. All statutes of limitations which would
otherwise be applicable shall apply to any arbitration proceeding under this
paragraph. In any arbitration proceeding subject to these provisions, the
arbitration panel (the "arbitrator") is specifically empowered to decide (by
documents only, or with a hearing, at the arbitrator's sole discretion)
pre-hearing motions which are substantially similar to pre-hearing motions to
dismiss and motions for summary adjudication. In any such arbitration
proceeding, the arbitrator shall not have the power or authority to award
punitive damages to any party.
Judgment upon the award rendered may be entered in any court having
jurisdiction. Whenever an arbitration is required, the parties shall select an
arbitrator in the manner provided in this paragraph. No provision of, nor the
exercise of any rights under, this paragraph shall limit the right of any party
(i) to foreclose against any real or personal property collateral through
judicial foreclosure, by the exercise of a power of sale under a deed of trust,
mortgage or other security agreement or instrument, pursuant to applicable
provisions of the Uniform Commercial Code, or otherwise pursuant to applicable
law, (ii) to exercise self help remedies including but not limited to setoff and
repossession, or (iii) to request and obtain from a court having jurisdiction
before, during or after the pendency of any arbitration, provisional or
ancillary remedies and relief including but not limited to injunctive or
mandatory relief or the appointment of a receiver. The institution and
maintenance of an action or judicial proceeding for, or pursuit of, provisional
or ancillary remedies or exercise of self help remedies shall not constitute a
waiver of our right, even if we are the plaintiff, to submit the Dispute to
arbitration if we would otherwise have such right. We may require arbitration of
any Dispute(s) concerning the lawfulness, unconscionableness, propriety, or
reasonableness of any exercise by us of our right to take or dispose of any
collateral or our exercise of any other right in connection with collateral
including, without limitation, judicial foreclosure, exercising a power of sale
under a deed of trust or mortgage, obtaining or executing a writ of attachment,
taking or disposing of property with or without judicial process pursuant to
Article 9 of the Uniform Commercial Code or otherwise as permitted by applicable
law, notwithstanding any such exercise by us. Whenever an arbitration is
required under this paragraph, the arbitrator shall be selected, except as
otherwise herein provided, in accordance with the Commercial Arbitration Rules
of the AAA. A single arbitrator shall decide any claim of $100,000 or less and
he or she shall be an attorney with at least five years' experience. Where the
claim of any party exceeds $100,000, the Dispute shall be decided by a majority
vote of three arbitrators, at least two of whom shall be attorneys (at least one
of whom shall have not less than five years' experience representing commercial
banks). In the event of any Dispute governed by this paragraph, each of the
parties shall, subject to the award of the arbitrator, pay an equal share of the
arbitrator's fees. The arbitrator shall have the power to award recovery of all
costs and fees (including attorneys' fees, administrative fees, arbitrator's
fees, and court costs) to the prevailing party.
ANYTHING IN THIS AGREEMENT, THE NOTE OR ANY OTHER DOCUMENTS RELATING TO
THIS FACILITY TO THE CONTRARY NOTWITHSTANDING, THE ENUMERATION IN THIS
AGREEMENT, THE NOTE OR IN SUCH OTHER DOCUMENTS OF SPECIFIC OBLIGATIONS TO OUR
BANK AND/OR CONDITIONS TO THE AVAILABILITY OF THIS FACILITY AND THE NOTE SHALL
NOT BE CONSTRUED TO QUALIFY, DEFINE OR OTHERWISE LIMIT OUR RIGHT, POWER OR
ABILITY, AT ANY TIME, UNDER APPLICABLE LAW, TO MAKE DEMAND FOR PAYMENT OF THE
ENTIRE OUTSTANDING PRINCIPAL OF AND INTEREST DUE UNDER THIS FACILITY AND THE
NOTE OR OUR RIGHT NOT TO MAKE ANY EXTENSION OF CREDIT UNDER THIS FACILITY AND
YOU AGREE THAT YOUR BREACH OF OR DEFAULT UNDER ANY SUCH ENUMERATED OBLIGATIONS
OR CONDITIONS IS NOT THE ONLY BASIS FOR DEMAND TO BE MADE OR FOR A REQUEST FOR
AN EXTENSION OF CREDIT TO BE DENIED, AS YOUR OBLIGATION TO MAKE PAYMENT SHALL AT
ALL TIMES REMAIN A DEMAND OBLIGATION. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT
TO THE CONTRARY, THIS AGREEMENT DOES NOT CREATE A COMMITMENT OR OBLIGATION TO
LEND BY THE BANK AND YOU ACKNOWLEDGE THAT THE BANK HAS NO OBLIGATION TO LEND.
EACH OF YOU AND WE HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM BROUGHT BY OR AGAINST IT ON ANY MATTERS WHATSOEVER, IN CONTRACT
OR IN TORT, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE NOTE
OR ANY OTHER DOCUMENTS RELATING TO THIS FACILITY. YOU ALSO HEREBY WAIVE THE
RIGHT TO INTERPOSE ANY DEFENSE BASED UPON ANY CLAIM OF LACHES OR SET-OFF OR
COUNTERCLAIM OF ANY NATURE OR DESCRIPTION, ANY OBJECTION BASED ON FORUM NON
CONVENIENS OR VENUE, AND ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES.
If this agreement is acceptable to you, please sign and return to us
one copy each of the enclosed copy of this letter and the other documents
referred to above on or before August 14, 2004.
Very truly yours,
HSBC USA Bank, National Association
By: /S/ ANDREW ROSS
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Title: First Vice President
Agreed to and accepted:
Jean Philippe Fragrances, LLC.
By: /S/ RUSSELL GREENBERG
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Title: Executive Vice President