EXHIBIT 4.6
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE, dated as of December 11, 2003 (the "Supplemental
Indenture") among SOLA International Inc. (the "Company") and The Bank of New
York, as trustee ("Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture dated as of April 17, 2001 (as amended and supplemented, the
"Indenture") providing for the issuance of outstanding E205,000,000 in principal
amount of 11% Senior Notes due March 15, 2008 (the "Notes").
WHEREAS, Section 9.02 of the Indenture provides that the Company and the
Trustee may, with the consent of the holders of at least a majority in aggregate
principal amount of the Notes then outstanding (as determined in accordance with
the Indenture, the "Outstanding Amount") (such consent being referred to herein
as the "Majority Consent"), enter into a supplemental indenture for the purpose
of amending the Indenture; provided, however, that the consent of holders of not
less than two-thirds in aggregate principal amount of the Outstanding Amount
(such consent being referred to herein as the "Two-Thirds Consent") is required
for amendment of Sections 4.11 and 4.12 of the Indenture.
WHEREAS, the Company has offered to purchase for cash (the "Offer") any
and all of the outstanding Notes upon the terms and subject to the conditions
set forth in the Offer to Purchase and Consent Solicitation Statement, dated
November 6, 2003 (together with any extensions, supplements or amendments, the
"Statement"), and solicited consents (the "Consent Solicitation") of the holders
of the Notes to, among others things, certain amendments (the "Proposed
Amendments") to the Indenture, all but two of which require Majority Consent
(the "Majority Amendments") and two of which require Two-Thirds Consent (the
"Two-Thirds Amendments").
WHEREAS, the Company has received the Majority Consent and also the
Two-Thirds Consent to effect the Proposed Amendments under the Indenture.
WHEREAS, pursuant to Sections 9.02 and 9.05 of the Indenture, the Trustee
is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration the
receipt of which hereby is acknowledged, and for the equal and proportionate
benefit of the holders of the Notes, the Company and the Trustee hereby agree as
follows:
1. DELETION OF CERTAIN PROVISIONS
1.1 Majority Amendments. Pursuant to the terms of the Statement and
Consent Solicitation and the receipt of the Majority Consent, the Indenture
hereby is amended to:
(a) delete the following sections in their entirety and, in the case
of each such section, insert in lieu thereof the phrase "Intentionally
Omitted", and any and all
references to such sections (or to clauses of such sections), any and all
obligations thereunder and any event of default related solely to the
following sections are hereby deleted throughout the Indenture, and such
sections and references shall be of no further force or effect:
Section 4.03 Limitation on Additional Indebtedness
Section 4.04 Limitation on Layering Indebtedness
Section 4.05 Limitation on Restricted Payments
Section 4.06 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries
Section 4.07 Limitation on the Issuance or Sale of Capital Stock of
Restricted Subsidiaries
Section 4.08 Limitation on Sale and Leaseback Transactions
Section 4.09 Limitation on Transactions with Affiliates
Section 4.10 Limitation on Liens
Section 4.13 Limitation on Designation of Unrestricted Subsidiaries
Section 4.14 Designation of Guarantor
(b) amend the following sections as indicated below and, in the case
of each deletion of a clause, insert in lieu thereof the phrase
"Intentionally Omitted", and any and all references to such clauses, any
and all obligations thereunder and any event of default related solely to
the following clauses or sections are hereby deleted throughout the
Indenture, and such clauses and references shall be of no further force or
effect:
Section 5.01 Merger, Consolidation or Sale of Assets:
Clause (a) - deletion of language regarding asset
sales and plans of liquidations; deletion of
clauses (a)(2), (a)(3), (b)(2) and (b)(3)
Section 6.01 Events of Default:
Deletion of clauses (c), (d), (e) and (f) and
deletion of all references to Restricted
Subsidiaries in clause (g)
1.2 Two-Thirds Amendments. Pursuant to the terms of the Statement and
Consent Solicitation and the receipt of the Two-Thirds Consent, the Indenture is
hereby amended to delete the following sections in their entirety and, in the
case of each such section, insert in lieu thereof the phrase "Intentionally
Omitted", and any and all references to such sections, any and all obligations
thereunder and any event of default related solely to the following sections are
hereby deleted throughout the Indenture, and such sections and references shall
be of no further force or effect:
Section 4.11 Limitation on Asset Sales
Section 4.12 Repurchase of Notes upon a Change of Control
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2. OTHER AMENDMENTS TO THE INDENTURE
All definitions in the Indenture that are used exclusively in the
sections, subsections and clauses deleted pursuant to Sections 1.1 and 1.2 of
this Supplemental Indenture hereby are deleted.
3. EFFECTIVENESS; OPERATIVENESS
Sections 1 and 2 of this Supplemental Indenture shall become effective and
binding upon the Company, the Trustee and the holders of the Notes immediately
upon the execution and delivery of this Supplemental Indenture and shall become
operative on and simultaneously with the acceptance for purchase by the Company
at least 66 2/3% of the Outstanding Amount in the Offer.
4. MISCELLANEOUS
4.1. Ratification of Indenture; Supplemental Indenture as Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. Upon the execution and delivery of this
Supplemental Indenture by the Company and the Trustee, this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every holder
of Notes heretofore or hereafter authenticated and delivered shall be bound
hereby. Any and all references, whether within the Indenture or in any notice,
certificate or other instrument or document, shall be deemed to include a
reference to this Supplemental Indenture (whether or not made), unless the
context shall otherwise require.
4.2. New York Law to Govern. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
4.3. Trustee Acceptance. The Trustee accepts the Indenture, as
supplemented hereby, and agrees to perform the same upon the terms and
conditions set forth therein, as supplemented hereby. The recitals contained
herein shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representation as
to the validity or sufficiency of this Supplemental Indenture.
4.4. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
4.5. Effect of Headings. The Section headings herein are for convenience
of reference only and shall not effect the construction hereof.
4.6. Entire Agreement. This Supplemental Indenture, together with the
Indenture as amended hereby, contains the entire agreement of the parties, and
supersedes all other representations, warranties, agreements and understandings
between the parties, oral or otherwise, with respect to the matters contained
herein and therein.
4.7. Benefits of Supplemental Indenture. Nothing in this Supplemental
Indenture or the Indenture, express or implied, shall give to any person, other
than the parties hereto and thereto and their successors hereunder and
thereunder, and the Holders, any benefit of any legal or equitable right, remedy
or claim under the Indenture or the Supplemental Indenture.
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4.8. Defined Terms. Unless otherwise indicated, capitalized terms used
herein and not defined shall have the respective meanings given such terms in
the Indenture.
4.9. Trust Indenture Act Controls. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with another provision of this
Supplemental Indenture or the Indenture that is required to be included by the
Trust Indenture Act of 1939, as amended (the "Act"), as in force at the date
this Supplemental Indenture is executed, the provision required by the Act shall
control.
4.10. Severability. In case any one or more of the provisions of this
Supplemental Indenture shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be executed as of the day and year first above written.
SOLA INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Executive Vice President, Finance
and Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
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