EXHIBIT 10.54
OAKLEY, INC.
SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of May 14, 1997 and entered into by and among
OAKLEY, INC., a Washington corporation ("Company"), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred
to herein as a "Lender" and collectively as "Lenders" and XXXXX FARGO BANK,
NATIONAL ASSOCIATION ("Xxxxx Fargo"), as current agent for Lenders (in such
capacity, "Agent") and, for purposes of Section 5, the Consenting Parties (as
defined therein), and is made with reference to that certain Amended and
Restated Credit Agreement dated as of August 15, 1995, as amended by the
First Amendment to Amended and Restated Credit Agreement, dated as of
November 22, 1995, by and among Company, Lenders and Agent, the Second
Amendment to Amended and Restated Credit Agreement, dated as of October 10,
1996, by and among Company, Lenders and Agent, the Third Amendment to Amended
and Restated Credit Agreement, dated as of November 25, 1996, the Fourth
Amendment to Amended and Restated Credit Agreement, dated as of January 29,
1997, by and among Company, Lenders and Agent, the Fifth Amendment to Amended
and Restated Credit Agreement, dated as of March 31, 1997, by and among
Company, Lenders and Agent, and the Sixth Amendment to Amended and Restated
Credit Agreement, dated as of March 31, 1997, by and among Company, Lenders
and Agent (as amended, the Credit Agreement"), by and among Company, Lenders
and Agent. Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement.
RECITALS
X. Xxxxx Fargo desires to resign as Agent for the Lenders under the
Credit Agreement and the other Loan Documents.
X. Xxxxx Fargo has sold and assigned all of its rights and obligations
as a Lender arising under the Credit Agreement and other Loan Documents with
respect to its Commitment and outstanding Loans in accordance with the terms
of the Assignment Agreements, effective as of May 8, 1997.
C. Company and Lenders desire to amend the Credit Agreement to provide
for the appointment of Bank of America National Trust and Savings Association
("BofA") as successor agent for the Lenders.
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D. Company and Lenders desire to further amend the Credit Agreement as
herein provided.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as
follows:
SECTION 1. MODIFICATIONS TO THE CREDIT AGREEMENT.
1.1 APPOINTMENT OF SUCCESSOR AGENT.
(a) Subject to the provisions of Section 9 of the Credit Agreement
(except for the notice requirements of Subsection 9.5 which are hereby waived
by the Company and the Lenders), Xxxxx Fargo resigns as Agent for the Lenders
and the Lenders hereby appoint BofA as successor Agent and authorizes the
Agent to act as agent in accordance with the terms of the Credit Agreement
and the other Loan Documents.
(b) In the first sentence of Subsection 9.1 the name "BofA" is
substituted for the name "Xxxxx Fargo" appearing therein.
(c) Subsection 9.2D is amended by adding the following sentence to the
end of such subsection:
"The Lenders acknowledge that, pursuant to such activities, BofA
or its affiliates may receive information regarding the Company.
(including information that may be subject to confidentiality
obligations in favor of the Company) and acknowledge that the Agent
shall be under no obligation to provide such information to them."
(d) Subsection 9.5 is amended by adding the following two sentences to
the end of such subsection:
"If no successor agent is appointed prior to the effective date
of the resignation of the Agent, the Agent may appoint, after
consulting with the Lenders and the Company, a successor agent from
among the Lenders. If no successor agent has accepted appointment as
Agent by the date which is 30 days following or retiring Agent's notice
of resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the
duties of the Agent hereunder until such time, if any, as the
Requisite Lenders appoint a successor agent as provided for above."
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1.2 AMENDMENTS TO SUBSECTION 1.1: CERTAIN DEFINED TERMS.
(a) The definition of "Base Rate" is amended to read:
"'Base Rate' means for any day, the higher of (a) the rate
which is 1/2 of 1% in excess of the Federal Funds Effective Rate and
(b) the Reference Rate."
(b) In the definition of "Eligible Assignee" the figure "$100,000,000"
is substituted for the figure "$10,000,000,000" appearing therein.
(c) The definition of "Exchange Rate" is amended to read:
"'Exchange Rate' means, on any date, as to any amount that is
expressed in a currency other than Dollars, the rate quoted by BofA
as the spot rate for the purchase by BofA of such currency with another
currency at its FX Trading Office at approximately 8:00 a.m.
(San Francisco time) on the date two Business Days prior to the date as
of which the foreign exchange computation is made."
(d) The definition of "Funding and Payment Office" is amended to read:
"'Funding and Payment Office' means the Office of the Agent located
at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Agency Administrative Services 5596, or such other of Agent's
offices as Agent may designate from time to time".
(e) The definition of "Issuing Lender" is amended to read:
"'Issuing Lender' means, with respect to any Letter of Credit, BofA."
(f) The definition of "LIBOR" is amended to read:
"'LIBOR' means, for any Interest Period, the rate of interest per
annum determined by the Agent to be the arithmetic mean of the rates of
interest per annum at which deposits (in an amount approximately equal
to the amount of any requested LIBOR Loan and for the same term as the
Interest Period designated by Company for such Loan), are offered to major
banks in the London interbank market at their request at approximately
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11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period, as adjusted for reserve requirements and rounded
upwards to the next highest one sixteenth of one percent (1/16%)."
(g) The definition of "Prime Rate" is deleted in its entirety.
(h) The definition of "Pro Rata Share" is amended to read:
"'Pro Rata Share' means, with respect to each Lender, the percentage
(expressed as a decimal, rounded to the ninth decimal place) obtained by
DIVIDING the Revolving Loan Exposure of that Lender by the aggregate
Revolving Loan Exposure of all Lenders, as such percentage may be
adjusted by assignments permitted pursuant to subsection 10.1; The
initial Pro Rata Share of each Lender is set opposite the name of that
Lender in Schedule 2.1 annexed hereto."
(i) The definition of "FX Trading Office" is added, in appropriate
alphabetical order, to read:
"'FX Trading Office' means the Foreign Exchange Trading Center
#5193, San Francisco, California, of BofA, or such other of BofA's
offices as BofA may designate from time to time."
(j) The definition of "Reference Rate" is added, in appropriate
alphabetical order, to read:
"'Reference Rate' means the rate of interest publicly announced
from time to time by BofA in San Francisco, California, as its
'Reference Rate'. The Reference Rate is set by BofA based upon various
factors including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in the Reference Rate announced by BofA
shall take effect at the opening of business on the day specified in
the public announcement of such change."
1.3 MODIFICATIONS TO SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS
AND LOANS.
(a) The second sentence of Subsection 2.1B is amended to read:
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"Whenever Company desires that Leaders make Revolving Loans, it
shall deliver to Agent a Notice of Borrowing no later than 10:30 a.m.
(California time) at least three Business Days in advance of the
proposed Funding Date (in the case of a LIBOR Loan) and no later than
10:30 a.m. (California time) on the proposed Funding Date (in the case
of a Base Rate Loan)."
(b) In the second paragraph of Subsection 2.2D., the hour "10:30 a.m.
(California time)" is substituted for the hour "ll:00 a.m. (California time)"
appearing therein.
(c) In Subsection 2.4A.(i), the hour "10:30 a.m. (California time)" is
substituted for the hour "11:00 a.m. (California time)" appearing therein.
(d) In Subsection 2.4.B(i), the hour "10:30 a.m. (California time)" is
substituted for the hour "11:00 a.m. (California time)" appearing therein.
1.4 MODIFICATIONS TO SECTION 3. LETTERS OF CREDIT.
(a) The first sentence of Subsection 3.1B.(iii) is amended to read:
"Upon the issuance of any Letter of Credit, Issuing Lender shall
notify Agent and Agent shall notify each other Lender of such issuance,
which notice shall be accompanied by a copy of such Letter of Credit."
(b) In the third line of Subsection 3.1B.(iv), "Agent" is substituted
for "Issuing Lender" appearing therein.
(c) The final sentence of Subsection 3.2 is amended to read:
"Promptly upon receipt by Issuing Lender of any amount described in
clause (i)(b) of this Subsection 3.2, Agent shall distribute to each
other Lender its Pro Rata Share of such amount."
(d) In the fourth and tenth lines of Subsection 3.3C., "Agent" is
substituted for "Issuing Lender" appearing therein.
(e) At the end of the fourth line of Subsection 3.3C(ii), "Agent" is
substituted for "Issuing Lender" appearing therein.
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(f) In the fourth line of Subsection 3.3(d.(ii), "Agent" is substituted
for "Issuing Lender" appearing therein.
1.5 ASSIGNMENTS BY XXXXX FARGO. Concurrently with the execution of
this Amendment and in accordance with the provisions of Subsection 10.1 of
the Credit Agreement, Xxxxx Fargo, as assignor, and each of the other
Lenders, as assignees, shall execute the Assignment Agreements whereby Xxxxx
Fargo shall assign all its rights and obligations as a Lender under the
Credit Agreement and other Loan Documents with respect to its Commitments and
any outstanding Loans to the assignees pursuant to the terms of the
respective Assignment Agreements.
1.6 MODIFICATIONS OF EXHIBITS.
(a) All references to "Xxxxx Fargo, as Agent" in the Exhibits to the
Credit Agreement are hereby amended to substitute "Bank of America National
Trust and Savings Association, as Agent".
(b) Exhibit V to the Credit Agreement is hereby amended by deleting
said Exhibit V in its entirety and substituting in its' place a new Exhibit V
in the form attached hereto.
(c) Exhibit XI to the Credit Agreement is hereby amended by deleting
said Exhibit XI in its entirety and substituting in its place a new Exhibit
XI in the form attached hereto.
1.7 MODIFICATION OF SCHEDULE.
SCHEDULE 2.1: LENDERS' COMMITMENTS AND PRO RATA SHARES. SCHEDULE 2.1 to
the Credit Agreement is hereby amended by deleting said SCHEDULE 2.1 in its
entirety and substituting in its place thereof a new SCHEDULE 2.1 in the form
of Annex A to this Amendment.
SECTION 2. REPLACEMENT REVOLVING NOTES
Company agrees to execute and deliver to each Lender a new Revolving
Note (collectively, the "Replacement Revolving Notes") in the amount of such
Lender's Revolving Loan Commitment in the form of EXHibit A attached hereto.
Each Lender hereby agrees that on the Seventh Amendment Effective Date (as
defined hereinafter) such Lender shall return to Company for cancellation any
Notes in such Lender's possession evidencing Revolving Loans outstanding
prior to the effectiveness of this Amendment.
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SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Seventh
Amendment Effective Date"):
A. Company shall deliver to Lenders (or to Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the Seventh
Amendment Effective Date:
1. Copies of this Amendment executed by Company and each Consenting
Party;
2. Signature and incumbency certificates of Company's and each
Guarantor's officers executing this Amendment and, in the case of Company,
the Replacement Revolving Notes; and
3. Replacement Revolving Notes executed by the Company,
substantially in the form of EXHIBIT A to this Amendment, with
appropriate insertions for each Lender as provided for in this Amendment.
B. On or before the Seventh Amendment Effective Date, Agent, on behalf
of Lenders, shall have received a counterpart of this Amendment executed by a
duly authorized officer of each Lender and copies of the Assignment
Agreements executed by Xxxxx Fargo and the Lenders, respectively, and
consented to by the Company and the Agent.
C. On or before the Seventh Amendment Effective Date, Xxxxx Fargo, as
retiring Agent, shall deliver to BofA, as successor Agent, executed originals
of all Loan Documents, including any pledged stock certificates and related
stock power assignments, in the possession of Xxxxx Fargo and a copy of the
Register.
SECTION 4. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender, as of the date hereof and as of the Seventh
Amendment Effective Date, that the following statements are true, correct and
complete:
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A. CORPORATE POWER AND AUTHORITY. Company has all requisite corporate
power and authority to enter into this Amendment and the Replacement
Revolving Notes, and to carry out the transactions contemplated by, and
perform its obligations under, the Credit Agreement as amended by this
Amendment (the "Amended Agreement") and the Replacement Revolving Notes.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Company and each
Consenting Party. The issuance, delivery and payment of the Replacement
Revolving Notes have been duly authorized by all necessary corporate action
on the part of the Company.
C. NO CONFLICT. The execution and delivery by Company and each
Consenting party of this Amendment and, in the case of Company, the
Replacement Revolving Notes, and the performance by Company and each
Consenting Party of the Loan Documents and, in the case of Company, the
Replacement Revolving Notes do not and will not (i) violate the Certificate
or Articles of Incorporation or Bylaws of Company or any of its Subsidiaries,
(ii) violate any provision of any law or any governmental rule or regulation
applicable to Company or any of its Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on Company or any
of its Subsidiaries, which violation could reasonably be expected to have a
Material Adverse Effect, (iii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries in a manner that
could reasonably be expected to have a Material Adverse Effect, (iv) result
in or require the creation or imposition of any Lien upon any of the
properties or assets of Company or any of its Subsidiaries (other than any
Liens created under any of the Loan Documents in favor of Agent on behalf of
Lenders), or (v) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company or any of
its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Company and
each Consenting Party of this Amendment and, in the case of Company, the
Replacement Revolving Notes, and the performance by Company and each
Consenting Party of the Loan Documents and, in the case of Company, the
Replacement Revolving Notes, do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by,
any federal, state or other governmental authority or regulatory body.
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E. BINDING OBLIGATION. Each Loan Document and, in the case of Company,
the Replacement Revolving Notes have been duly executed and delivered by
Company and each Consenting party, as applicable, and are the legally valid
and binding obligations of Company and each Consenting Party thereto,
enforceable against each such Person in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights
generally or by equitable principles relating to enforceability.
F. ABSENCE OF DEFAULT. Upon giving effect to this Amendment, no event
has occurred and is continuing or will result from the consummation of the
transactions contemplated by this Amendment that would constitute an Event of
Default or a Potential Event of Default.
SECTION 5. ACKNOWLEDGEMENT AND CONSENT
Repeat Incorporated, an Arizona corporation ("Repeat"), and Barter
Optical, Inc., a Washington corporation ("Barter"), are parties to the
Guaranty, pursuant to which Repeat and Barter have guarantied the Obligations
of Company under the Credit Agreement. Repeat and Barter are collectively
referred to herein as the "Consenting Parties".
Each Consenting Party hereby acknowledges that it has reviewed the terms
and provisions of the Credit Agreement and this Amendment and consents to the
amendment of the Credit Agreement effected pursuant to this Amendment. Each
Consenting Party hereby confirms that the Guaranty will continue to guaranty
to the fullest extent possible the payment and performance of all "Guaranteed
Obligations" (as such term is defined in the Guaranty), including without
limitation the payment and performance of all such Guarantied Obligations, in
respect of the Obligations of Company now or hereafter existing under or in
respect of the Amended Agreement and all Notes.
Each Consenting Party acknowledges and agrees that the Guaranty shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Consenting Party
represents and warrants that all representations and warranties contained in
the Guaranty and the Amended Agreement to which it is a party or otherwise
bound are true, correct and complete in all material respects on and as of
the Seventh Amendment Effective Date to the same extent as though made on and
as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case
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they were true, correct and complete in all material respects on and as of
such earlier date.
Each Consenting Party acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Amendment, such Consenting
Party is not required by the terms of the Credit Agreement or any other Loan
Document to consent to the amendments to the Credit Agreement effected
pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require the consent
of such Consenting Party to any future amendments to the Credit Agreement.
SECTION 6. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(i) On and after the Seventh Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to
the Amended Agreement.
(ii) Except as specifically amended or waived by this Amendment,
the Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver
of any provision of, or operate as a waiver of any right, power or
remedy of Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement incurred by
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive
effect.
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D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by Requisite Lenders and
each of the other parties hereto and receipt by Company and Agent of written
or telephonic notification of such execution and authorization of delivery
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
OAKLEY, INC., as the Borrower
By:
-----------------------------------
Title:
--------------------------------
Notice Address:
Oakley, Inc.
1 Icon
Xxxxxxxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xx. Xxxxx Xxxxxx
Controller
(signatures continue)
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XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Individually and as retiring Agent
By:
-----------------------------------
Title:
--------------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as successor Agent
By:
-----------------------------------
Title:
--------------------------------
Notice Address:
Bank of America NT&SA
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Agency Management
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By:
-----------------------------------
Title:
--------------------------------
Notice Address:
Bank of America NT&SA
0000 Xxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xx. Xxxxxxxxx Xxxxxx
(signatures continue)
00
XXXXX XXXX XX XXXXXXXXXX, N.A.,
(formerly named Union Bank) as a Lender
By:
-----------------------------------
Title:
--------------------------------
Notice Address:
Union Bank of California, N.A.
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Mr. Xxx Xxxxxx
ACKNOWLEDGMENT AND CONSENT
BARTER OPTICAL, INC., as a
Consenting Party
By:
----------------------------
Title:
-------------------------
REPEAT INCORPORATED, as a
Consenting Party
By:
----------------------------
Title:
-------------------------
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ANNEX A
SCHEDULE 2.1
LENDERS' COMMITMENTS AND PRO RATA SHARES
Revolving Loan Pro Rata
Lender Commitment Share
------ --------------- ---------
Bank of America NT&SA $15,000,000 50%
Union Bank of NT&SACalifornia, N.A. $15,000,000 50%
TOTAL $30,000,000 100%
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