EXHIBIT 10.15
AMENDMENT AGREEMENT NO. 5 TO
AMENDED AND RESTATED REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 12th day
of September, 1997, by and among SUNGLASS HUT INTERNATIONAL, INC., a Florida
corporation (herein called the "Borrower"), NATIONSBANK NATIONAL ASSOCIATION
(the "Agent"), as Agent for the lenders (the "Lenders") party to the Amended and
Restated Revolving Credit and Reimbursement Agreement dated December 14, 1995,
as amended, among such Lenders, Borrower and the Agent (the "Agreement") and
each of the Lenders party to the Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make revolving loans to
the Borrower in the principal amount of up to $75,000,000 as evidenced by the
Notes (as defined in the Agreement); and
WHEREAS, as a condition to the making of the revolving loans pursuant
to the Agreement the Lenders have required that all Material Subsidiaries of the
Borrower guaranty payment of all Obligations of the Borrower arising under the
Agreement; and
WHEREAS, the Borrower has requested that the Lenders further amend the
Agreement and the Agent and the Lenders have agreed subject to the terms of this
Amendment Agreement, to further amend the Agreement in the manner set forth
herein;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. DEFINITIONS. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereby
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. AMENDMENTS. Subject to the conditions hereof, the Agreement is
hereby amended, effective as of July 31, 1997, as follows:
(a) The definition of "Consolidated EBIT" in Section 1.01 is
amended by adding the following clause (v) thereto at the end of clause
(iv):
"plus, (v) a $1,700,000 non-cash charge taken in the quarterly
period ended July 31, 1997 representing a corporate
restructuring charge"
(b) The definition of "Consolidated EBITDA" in Section 1.01 is
amended by adding the following clause (ix) thereto at the end of
clause (viii):
"plus, (ix) a $1,700,000 non-cash charge taken in the
quarterly period ended July 31, 1997 representing a corporate
restructuring charge"
(c) The Definition of "Letter of Credit" in Section 1.01 is
hereby amended by inserting the phrase "and commercial" following the
word "standby" in the first line thereof.
(d) Section 2.13 is hereby amended in its entirety so that as
amended it shall read as follows:
"2.13 USE OF PROCEEDS. The proceeds of the Loans made
pursuant to the Revolving Credit Facility hereunder shall be
used by the Borrower and its Subsidiaries (i) to finance
Permitted Acquisitions, (ii) for other working capital and
general corporate needs of the Borrower and its Subsidiaries
and (iii) to acquire common stock of the Borrower in an
aggregate amount not to exceed $15,000,000, provided that the
Outstanding Credit Obligations do not exceed $30,000,000
(without giving effect to any such stock repurchase) and any
such right to purchase such stock shall terminate on February
1, 1998."
(e) Section 8.01 is hereby amended by (x) deleting in section
(i) the phrase "$94,000,000 at the Closing Date" and inserting in lieu
thereof the phrase "$100,600,000 at July 31, 1997, (y) deleting the
period at the end thereof and (z) inserting the following:
"minus, (iii) the amount paid by Borrower to purchase capital
stock of the Borrower in an aggregate amount not to exceed
$15,000,000, which capital stock is immediately retired and
cancelled on the books of the Borrower."
(f) Section 8.03 is hereby amended in its entirety so that as
amended it shall read as follows:
"8.03 CONSOLIDATED INTEREST COVERAGE RATIO. Permit at
any time during the periods set forth below the Consolidated
Fixed Charge Ratio to be less than that set forth opposite the
period:
PERIOD RATIO
------ -----
2nd Quarter 1997 2.10 to 1.00
3rd Quarter 1997 2.10 to 1.00
4th Quarter 1997 and
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thereafter 2.50 to 1.00"
(g) Section 8.04 is hereby amended in its entirety so that as
amended it shall read as follows:
"8.04 CONSOLIDATED FIXED CHARGE RATIO. Permit at any
time during the periods set forth below the Consolidated Fixed
Charge Ratio to be less than that set forth opposite the
period:
PERIOD RATIO
------ -----
2nd Quarter 1997 .85 to 1.00
3rd Quarter 1997 .85 to 1.00
4th Quarter 1997 and
thereafter 1.10 to 1.00"
(h) Section 8.06 is hereby amended in its entirety so that as
amended it shall read as follows:
"8.06 CONSOLIDATED LEVERAGE RATIO. Permit at any time
during the periods set forth below the Consolidated Leverage
Ratio to be less than that set forth opposite the period:
PERIOD RATIO
------ -----
2nd Quarter 1997 2.35 to 1.00
3rd Quarter 1997 2.60 to 1.00
4th Quarter 1997 and
thereafter 2.10 to 1.00"
(i) Section 8.05 is hereby amended in its entirety so that as
amended it shall read as follows:
"8.05 DIVIDENDS AND DISTRIBUTIONS. Declare or pay
dividends (other than stock dividends) or make other
stockholder distributions or redemptions or purchases of its
capital stock, or make any distribution of cash or property
(other than stock dividends and dividends and distributions
paid by S corporations acquired by the Borrower or its
Subsidiary to stockholders which are used to pay income taxes
arising from operations of such S corporation) to its
shareholders except (i) dividends in an aggregate amount in
any Fiscal Year (on a non-cumulative basis, so that any
amounts not distributed in one Fiscal Year may not be
distributed in subsequent Fiscal Years) not to exceed ten
percent (10%) of Consolidated Net Income so long as after
giving effect to the payment of such dividend no Default or
Event of Default exists hereunder and (ii) purchases prior
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to February 2, 1998 of common stock of the Borrower in an
aggregate amount of not to exceed $15,000,000, so long as the
Outstanding Credit Obligations do not exceed $30,000,000
(without giving effect to any Advance used to purchase such
stock)."
3. Each Material Subsidiary of the Borrower has joined in the execution
of this Amendment Agreement for the purpose of (i) agreeing to the other
amendments to the Agreement and the other Loan Documents effected hereby and
(ii) confirming its guarantee of payment of all the Obligations.
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby certifies that:
(a) The representations and warranties made by Borrower in
Article VI of the Agreement are true and correct in all material
respects on and as of the date hereof except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in Section 6.01(f)
shall be those most recently furnished to each Lender pursuant to
Section 7.01(a) and (b);
(b) There has been no material change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the
date of the most recent financial reports of the Borrower received by
each Lender under Section 7.01 thereof, other than changes in the
ordinary course of business or as described in paragraph 2(b) of this
Amendment Agreement, none of which has been a material adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent financial
report of the Borrower and its Subsidiaries received by each Lender
under Section 7.01 thereof have not been, adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constitutes a
Default or an Event of Default on the part of the Borrower under the
Agreement, the Notes or any other Loan Document either immediately or
with the lapse of time or the giving of notice, or both.
5. CONDITIONS. As a condition to the effectiveness of this Amendment
Agreement,
(a) the Borrower shall deliver, or cause to be delivered to the Agent,
the following:
(i) eight (8) counterparts of this Amendment Agreement duly
executed by the Borrower and the Material Subsidiaries;
(ii) an amendment fee of 5 basis points times the Revolving
Credit
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Commitment of each Lender executing this Amendment Agreement;
and
(iii) such other instruments and documents as the Agent may
reasonably request.
(b) pursuant to Section 2.08 of the Agreement, the Total Revolving
Credit Commitment of the Borrower shall be permanently reduced by $15,000,000 so
that after giving effect to such reduction the Total Revolving Credit Commitment
does not exceed $60,000,000.
6. OTHER DOCUMENTS. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be satisfactory in
form and substance to the Agent and its counsel; the Agent shall have received
copies of all additional agreements, instruments and documents which it may
reasonably request in connection therewith, including evidence of the authority
of Borrower and the Material Subsidiaries to enter into the transactions
contemplated by this Amendment Agreement, such documents, when appropriate, to
be certified by appropriate corporate or governmental authorities; and all
proceedings of the Borrower and the Material Subsidiaries relating to the
matters provided for herein shall be satisfactory to the Agent and its counsel.
7. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
8. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
SUNGLASS HUT INTERNATIONAL, INC.
WITNESS:
___________________________ By:
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
___________________________ Title: Senior Vice President-Finance
Chief Financial Officer and
Treasurer
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GUARANTORS:
SUNGLASS HUT CORPORATION
SUNGLASS HUT TRADING CORPORATION
SUNSATIONS SUNGLASS COMPANY
SUNGLASS HUT REALTY CORPORATION
SUNGLASS HUT OF FLORIDA, INC.
SUNGLASS HUT ACQUISITION CORP.
IHS DISTRIBUTION CORP.
IHS PROCUREMENT CORP.
SUNGLASS HUT EYE X COMPANY
SHI SALES CORP.
SUNGLASS HUT HOLDINGS OF FRANCE, INC.
SUNGLASS HUT OF NORTHERN FRANCE, INC.
SUNGLASS HUT OF SOUTHERN FRANCE, INC.
BY:
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
SUNGLASS HUT (U.K.) LIMITED
SUNGLASS WORLD HOLDING PTY LIMITED
SUNGLASS HUT OF FRANCE, S.A.
BY:
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
SUNGLASS HUT AUSTRALIA PTY LIMITED
BY:
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
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NATIONSBANK, NATIONAL ASSOCIATION,
AS AGENT FOR THE LENDERS
BY:
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION,
as Lender
BY:
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
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ABN AMRO BANK N.V.
BY:
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Name:
Title:
BY:
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Name:
Title:
0
XXX XXXX XX XXXX XXXXXX
BY:
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Name:
Title:
10
CREDIT LYONNAIS NEW YORK BRANCH
BY:
----------------------------------
Name:
Title:
11
FIRST BANK (formerly known as
UNITED STATES NATIONAL BANK OF OREGON)
BY:
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Name:
Title:
12
LTCB TRUST COMPANY
BY:
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Name:
Title:
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