ASSIGNMENT AGREEMENT AND FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS ASSIGNMENT AGREEMENT AND FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT (this "Assignment and Amendment") is dated as of March 11,
1998 and entered into by and among BEC GROUP, INC., a Delaware Corporation
("BEC"), ORC TECHNOLOGIES, INC., a Delaware corporation ("ORC"), ORC MANAGEMENT
CORPORATION, a Delaware corporation ("ORC Management"), BOLLE AMERICA, INC., a
Delaware corporation ("Bolle America"), BOLLE INC., a Delaware corporation
("BOLLE"), NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America
("NationsBank") in its capacity as a Lender and as the Agent, EUROPEAN AMERICAN
BANK, ("EAB"), NATIONAL CITY BANK OF KENTUCKY ("NCB"), BANKBOSTON, N.A.
("BankBoston"), CREDIT AGRICOLE INDOSUEZ ("Credit Agricole") and IMPERIAL BANK
("Imperial").
W I T N E S S E T H:
WHEREAS, NationsBank, as a lender, EAB, NCB, BankBoston, Credit
Agricole and Imperial (collectively, the "Lenders"), NationsBank, as agent (the
"Agent"), and BEC (the "Existing Borrower") are parties to the Amended and
Restated Credit Agreement dated as of July 10, 1997 (the "Existing Credit
Agreement"; all capitalized terms not defined herein shall have the meanings
set forth in the Existing Credit Agreement); and
WHEREAS, ORC, ORC Management, Bolle America, Bolle (collectively, the
"Existing Guarantors") and the Agent entered into an Amended and Restated
Guaranty Agreement (the "Existing Guaranty Agreement") pursuant to which each
of the Existing Guarantors guaranteed to the Lenders the payment and
performance of the Borrower's Liabilities (as defined in the Existing Guaranty
Agreement); and
WHEREAS, BEC intends to assign to Bolle (the "Borrower's Assignment"),
with the necessary consent and approval of the Lenders, certain of its rights,
interests and obligations as a Borrower with respect to the Revolving Credit
Facility and the Term Loan Facility (Tranche A and Tranche B), and all
Outstandings with respect thereto, under the Existing Credit Agreement as set
forth on Schedule I hereto (all such amounts so assigned by BEC to Bolle and
all rights, interests, commitments, obligations, liabilities and indebtedness
under the Loan Documents with respect thereto are collectively referred to as
the "Bolle Obligations" and all amounts of the Revolving Credit Facility and
the Term Loan Facility (Tranche A and Tranche B), and all remaining
Outstandings with respect thereto, not so assigned by BEC to Bolle, together
with all rights, interests, commitments, obligations, liabilities and
indebtedness under the Loan Documents with respect thereto are collectively
referred to as the "BEC Obligations") resulting in each of the Lenders having
rights and interests in each of the Bolle Obligations and the BEC Obligations;
and
WHEREAS, each of the Lenders has agreed to sell and assign to, and
purchase and assume from, each other certain of their respective rights,
interests and obligations in the BEC Obligations
and the Bolle Obligations, including both the Total Commitments therefor and
the Outstandings thereunder owing, under and in connection with the Existing
Credit Agreement and the other Loan Documents existing on the date hereof after
giving effect to the Borrower's Assignment (the "Existing Loan Documents");
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants and agreements contained herein, each of the parties hereto agrees as
follows:
1. ASSIGNMENT TO BOLLE. BEC hereby sells and assigns to Bolle without
recourse, representation or warranty and Bolle hereby purchases and assumes
from BEC, all Bolle Obligations and all rights and interests in and obligations
and duties under and in connection with the Existing Credit Agreement, the
Notes and the other Existing Loan Documents evidencing the Bolle Obligations,
and Bolle hereby agrees that, as of and after the date hereof, it shall be a
Borrower under the Existing Credit Agreement as if it were an original party
signatory thereto.
2. ASSIGNMENT AMONG LENDERS. Simultaneously with the transactions
described in Section 1 hereof, the Lenders hereby sell and assign to, and
purchase and assume from, each other without recourse, representation or
warranty all Bolle Obligations and all BEC Obligations, and all the rights and
interests in and obligations and duties under and in connection with the
Existing Credit Agreement, the Notes and the other Existing Loan Documents, in
each case such that the Lenders shall have the respective Applicable Commitment
Percentages in the Bolle Obligations and the BEC Obligations (including both
Total Commitments and Outstandings) as set forth on Schedule II and Schedule
III hereto, respectively (except for rights to any indemnity from BEC under
Sections 4.2(g), 9.14 and 15.8 of the Existing Credit Agreement and relevant
indemnity provisions of the other Existing Loan Documents). All of such rights,
interests, commitments, obligations and duties of the Lenders hereby become,
ipso facto, the rights, interests, commitments, obligations and duties of the
Lenders as set forth on Schedules II and III hereto without restatement,
amendment or revision of the Existing Credit Agreement, the Notes or any other
Existing Loan Document. The Lenders agree that the aggregate purchase price for
the rights and interests in the Bolle Obligations sold hereunder is as set
forth on Schedule II hereto and that the aggregate purchase price for the
rights and interests in the BEC Obligations sold hereunder is as set forth on
Schedule III hereto, all determined as of the date hereof, and the Lenders
shall allocate such purchase price among themselves in proportion to the amount
of the Outstandings constituting part of the Bolle Obligations and BEC
Obligations owing to each of them individually immediately prior to giving
effect to this Section 2, but after giving effect to Section 1, hereof.
3. RELEASE. Simultaneous with and effective upon the consummation of
the transactions described in Section 1 and Section 2 hereof, (a) each of BEC,
ORC, Bolle, Bolle America and ORC Management hereby releases the Lenders from
any and all claims, causes of action, suits, costs, fees and expenses
(including without limitation reasonable attorney fees) or liabilities arising
prior to the date hereof under or in connection with or on account of the
respective rights, interests, duties and obligations of the Lenders under and
in connection with the Existing Credit Agreement, the Notes and the other Loan
Documents, and (b) each of the Lenders hereby release (i) BEC and ORC from any
and all claims, causes of action, suits, costs, fees and expenses (including
without limitation reasonable attorney fees and disbursements) or liabilities
arising under or in connection with or on account of the Bolle Obligations
under the Existing Credit Agreement, the Notes and the other
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Existing Loan Documents and (ii) Bolle, Bolle America and ORC Management from
any and all claims, causes of action, suits, costs, fees and expenses
(including without limitation reasonable attorneys fees and disbursements) or
liabilities arising under or in connection with or on account of the BEC
Obligations under the Existing Credit Agreement, the Notes and the other
Existing Loan Documents, in each case other than any of the foregoing relating
to or consisting of any indemnity obligations under Sections 4.2(g), 9.14 and
15.8 of the Existing Credit Agreement and the relevant indemnity provisions of
the other Existing Loan Documents.
4. CONTINUING SECURITY INTERESTS; FURTHER ASSIGNMENT.
(a) Each of BEC and ORC hereby acknowledges and agrees with
the Lenders that each security interest, lien or other encumbrance on
any of its assets granted by any of them to the Agent for the benefit
of the Lenders pursuant to an Existing Loan Document to secure payment
or performance of the BEC Obligations or the Guarantor's Obligations
(as defined in the Existing Guaranty Agreement) with respect only to
the BEC Obligations remains in full force and effect, after giving
effect to, and notwithstanding, the transactions effected hereby and
are now and at all times hereafter granted for the benefit of the
Lenders. Each of BEC and ORC (at no cost or expense to the Agent or
the Lenders) hereby agrees to execute and deliver to the Agent all
appropriate instruments, documents, and Uniform Commercial Code
financing statements evidencing and giving effect to such
acknowledgment and agreement and the assignments and other
transactions set forth herein.
(b) Each of Bolle, Bolle America and ORC Management hereby
acknowledges and agrees with the Lenders that each security interest,
lien or other encumbrance on any of its assets granted by any of them
to the Agent for the benefit of the Lenders pursuant to an Existing
Loan Document to secure payment or performance of the Bolle
Obligations after giving effect to the Borrowers' Assignment, or the
Guarantor's Obligations (as defined in the Existing Guaranty
Agreement) with respect only to the Bolle Obligations after giving
effect to the Borrowers' Assignment, remains in full force and effect,
after giving effect to, and notwithstanding, the transactions effected
hereby and are now and at all times hereafter granted for the benefit
of the Lenders. Each of Bolle, Bolle America and ORC Management (at no
cost or expense to the Agent or the) hereby agrees to execute and
deliver to the Agent all appropriate instruments, documents and
Uniform Commercial Code financing statements evidencing and giving
effect to such acknowledgment and agreement and the assignments and
other transactions set forth herein.
5. AMENDMENT. The Existing Credit Agreement, the Notes and the other
Existing Loan Documents shall be deemed to be amended as of the effective date
hereof simultaneously with the consummation of each of the transactions
described in Sections 1 and 2 in all respects as necessary in order to give
effect to all transactions contemplated hereby. Except as otherwise amended
herein, the Existing Credit Agreement, the Notes and the other Existing Loan
Documents shall remain in full force and effect as provided therein.
6. CONSENTS TO ASSIGNMENTS. Each of the Lenders hereby consents to the
assignment by BEC of the Bolle Obligations to Bolle set forth in Section 1
hereof, the amendments to the
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Existing Loan Documents contemplated in Section 5 hereof and the other
transactions described herein and all related actions necessary to effectuate
the foregoing. Each of BEC, ORC, Bolle, Bolle America and ORC Management
hereby acknowledge and consent to the assignments among the Lenders provided
in Section 2 hereof and the other transaction described herein and all related
actions necessary to effectuate the foregoing.
7. CONSENT TO ILC MERGER. Each of the Lenders hereby consents to the
proposed merger of ILC Technology, Inc., a California corporation, into BILC
Acquisition Corp., a Delaware corporation, pursuant to the terms of that
certain Agreement and Plan of Merger dated October 30, 1997, as amended from
time to time.
8. FURTHER ASSURANCES. Each of the BEC, ORC, Bolle, Bolle America and
ORC Management hereby agree to execute and deliver to the Lenders and the Agent
(at not cost or expense to the Agent or the Lenders) all such instruments,
documents, agreements, financing statements and other writings as reasonably
requested by the Lenders or the Agent from time to time and as necessary or
advisable in their determination to effect all assignments and the other
transactions and matters agreed to herein and contemplated by the terms hereof.
9. REPRESENTATIONS AND WARRANTIES. Each of the BEC, ORC, Bolle, Bolle
America and ORC Management hereby represents and warrants to the Lenders and
the Agent each of the following:
(a) each of the Existing Credit Agreement, the Notes and each
Existing Loan Document to which it is party is in full force and
effect;
(b) it knows of no defenses against enforcement by the Agent
or the Lenders, or claims that would interfere with such enforcement,
of the BEC Obligations, the Bolle Obligations, the Guarantor's
Obligations (as defined in the Existing Guarantor Agreement) with
respect to either the BEC Obligations or the Bolle Obligations, the
Existing Credit Agreement, the Notes or any other Existing Loan
Document, all as constituted prior to the execution of this Assignment
and Amendment or as amended hereby; and
(c) it has the power and authority to execute, deliver and
perform this Assignment and Amendment and such execution, delivery and
performance does not conflict with or violate any provision of or
constitute an event of default under any of its documents of corporate
governance or any agreement or instrument to which it is a party or by
which it is bound.
10. MISCELLANEOUS. This Assignment and Amendment is entered into and
shall be governed by and construed in accordance with the laws of the State of
New York and shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. This Assignment and
Amendment may be executed in any number of counterparts, each one shall be
deemed an original and all of which together shall constitute one and the same
instrument.
[SIGNATURES ON FOLLOWING PAGES.]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Assignment and Amendment as of the day and year first above written.
BEC GROUP, INC.
By: /s/ Xxxxxxx XxXxxxxxx
-------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President of Finance
ORC TECHNOLOGIES, INC.
By: /s/ Xxxxxxx XxXxxxxxx
-------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
ORC MANAGEMENT CORPORATION
By: /s/ Xxxxxxx XxXxxxxxx
-------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
BOLLE AMERICA, INC.
By: /s/ Xxxxxxx XxXxxxxxx
-------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
BOLLE INC.
By: /s/ Xxxxxxx XxXxxxxxx
-------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
Signature Page 1 of 2
NATIONSBANK, NATIONAL ASSOCIATION, as
Lender and Agent
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President
IMPERIAL BANK
By: /s/ Ray Vadalina
-------------------------------------
Name: Ray Vadalina
Title: Senior Vice President
EUROPEAN AMERICAN BANK
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: First Vice President
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
Signature Page 2 of 2
