FIRST AMENDMENT TO SECOND LIEN CREDIT AGREEMENT
EXHIBIT 10.22
FIRST AMENDMENT, dated as of May 24, 2007 (this “Amendment”), to the SECOND LIEN
CREDIT AGREEMENT, dated as of December 9, 2005 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”), among FGX INTERNATIONAL INC., a Delaware corporation
(the “US Borrower”), FGX INTERNATIONAL LIMITED, a British Virgin Islands company and the
parent of the US Borrower (the “BVI Borrower”, and together with the US Borrower, the
“Borrowers” and, individually, each a “Borrower”), the Lenders parties thereto,
X.X. XXXXXX SECURITIES INC. and GE CAPITAL MARKETS, INC. as co-lead arrangers, GENERAL ELECTRIC
CAPITAL CORPORATION, as Syndication Agent, and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
Terms used herein but not defined shall have the meanings set forth in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to the Credit
Agreement; and
WHEREAS, the Borrowers have requested that the Lenders amend certain provisions of the Credit
Agreement on the terms set forth herein, and the Lenders are willing to agree to such amendments;
NOW THEREFORE, in consideration of the premises and mutual covenants contained herein and in
the Credit Agreement, the parties hereby agree as follows:
1. Amendments to Section 1.1 of the Credit Agreement. Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “Syndication Agent” in its entirety and
substituting in lieu thereof the following definition:
“Syndication Agent”: From and after the First Amendment Effective Date (as
defined in the First Amendment to this Agreement), the Syndication Agent will be Wachovia
Bank, National Association.
2. Amendments to Section 8.1. (a) Section 8.1(a) of the Credit Agreement is hereby
amended by deleting the portion of the table contained therein covering the periods indicated below
and substituting in lieu thereof the following:
Consolidated | ||
Fiscal Quarter | Leverage Ratio | |
June 30, 2007 | 5.00 to 1.00 | |
September 30, 2007 | 4.75 to 1.00 | |
December 31, 2007 | 4.75 to 1.00 | |
March 31, 2008 | 4.50 to 1.00 |
Consolidated | ||
Fiscal Quarter | Leverage Ratio | |
June 30, 2008 | 4.25 to 1.00 |
(b) Section 8.1(b) of the Credit Agreement is hereby amended by deleting the portion of the
table contained therein covering the periods indicated below and substituting in lieu thereof the
following:
Consolidated | ||
Fiscal Quarter | First Lien Leverage Ratio | |
June 30, 2007 | 4.00 to 1.00 | |
September 30, 2007 | 4.00 to 1.00 | |
December 31, 2007 | 4.00 to 1.00 | |
March 31, 2008 | 3.50 to 1.00 | |
June 30, 2008 | 3.50 to 1.00 |
3. Amendments to Section 8.2 (Indebtedness) of the Credit Agreement. Section 8.2 of
the Credit Agreement is hereby amended by deleting subsection (g) in its entirety and substituting
in lieu thereof the following subsection (g):
(g) subject to the Intercreditor Agreement, (i) First Lien Debt in an aggregate
principal amount not to exceed $185,000,000 plus the amount of any fees, premiums and
expenses in connection with a permitted refinancing thereof and accrued interest thereon and
(ii) guaranties thereof by Holdings or any Subsidiary that is a Subsidiary Guarantor
thereof; and
4. Conditions to Effectiveness. This Amendment shall be effective on the date upon
which each of the following conditions precedent have been satisfied (the “First Amendment
Effective Date”):
(1) this Amendment shall have been executed and delivered by the Borrowers,
JPMorgan Chase Bank, N.A., Deutsche Bank Trust Company Americas and the
Required Lenders;
(2) the First Amendment to the First Lien Credit Agreement shall have been
executed and delivered by the Borrowers, JPMorgan Chase Bank, N.A., Deutsche
Bank Trust Company Americas and the required lenders under the First Lien
Credit Agreement;
(3) one or more Lenders, together with one or more banks or other financial
institutions or entities not parties to this Amendment, shall have committed
to make Additional First Lien Term Loans in the aggregate amount of
$20,000,000; and
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(4) the Administrative Agent shall have received an amendment fee for the
account of each Lender that has executed and delivered or otherwise consented
to this Amendment on or prior to 5:00 p.m. New York City time, on May 24,
2007, in an amount equal to 0.10% of the sum of the Term Loans and Revolving
Commitments of such lender thereunder. The amendment fees are due and payable
simultaneously with the funding of the Additional First Lien Term Loans, which
shall occur after all other conditions to the effectiveness of this Amendment
(other than the payment of the fees hereunder) are satisfied.
5. Amendments to Section 8.7 (Capital Expenditures). (a) Section 8.7of the Credit
Agreement is hereby amended by deleting the portion of the table contained therein covering the
periods indicated below and substituting in lieu thereof the following:
Fiscal Year | Amount | |||
2007 |
$ | 22,000,000 | ||
2008 through 2012 |
$ | 20,000,000 |
6. Amendments to Section 10.11 (The Syndication Agent) of the Credit Agreement.
Section 10.11 of the Credit Agreement is hereby amended by deleting the section in its entirety and
substituting in lieu thereof the following:
10.11 The Syndication Agent. Except as expressly set forth herein, the Syndication Agent
shall not have any obligations or liabilities hereunder and the rights of the Syndication
Agent under the Agreement shall terminate in the event Wachovia Bank, National Association
ceases to be a Lender hereunder.
7. Replacement of Administrative Agent. (a) JPMorgan Chase Bank, N.A. hereby resigns
as Administrative Agent under the Second Lien Credit Agreement and the other Second Lien Loan
Documents, effective on June 19, 2007.
(b) The Borrowers agree to pay JPMorgan Chase Bank, N.A. on June 19, 2007 all fees and
interest accrued and unpaid on the outstanding Commitments, Loans and Letters of Credit, as of such
date for the benefit of the Lenders (whether or not such fees and interest are then due and payable
by the terms of the Second Lien Credit Agreement and without prejudice to payment obligations with
respect to fees and interest accruing after June 19, 2007, including any such payment obligations
on June 30, 2007).
(c) Deutsche Bank Trust Company Americas hereby agrees to become the successor Administrative
Agent, effective upon the First Amendment Effective Date. In its capacity as Administrative Agent,
Deutsche Bank Trust Company Americas shall have the following address for notice and other
communications under the Second Lien Loan Documents:
Attention: Xxxxxxx Xxxxxxx
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
XX XXX00-0000
Xxx Xxxx, XX 00000
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
XX XXX00-0000
Xxx Xxxx, XX 00000
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(d) Each Lender party to this Amendment and the Borrowers hereby (i) acknowledge the
resignation of JPMorgan Chase Bank, N.A. as Administrative Agent and that the provisions of Section
10 of the Second Lien Credit Agreement continue to inure to its benefit as to any actions taken or
omitted to be taken while it was Administrative Agent, (ii) waive any further notice requirement
otherwise applicable to such resignation pursuant to Section 10.9 of the Second Lien Credit
Agreement or otherwise, (iii) appoint and consent to the appointment of Deutsche Bank Trust Company
Americas as the successor Administrative Agent, effective upon the First Amendment Effective Date,
and (iv) agree and confirm that the provisions of Sections 10 and 11.5 of the Second Lien Credit
Agreement inure to the benefit of Deutsche Bank Trust Company Americas on actions as Administrative
Agent from and after its appointment as Administrative Agent. The fees payable to Deutsche Bank
Trust Company Americas for acting as Administrative Agent, as provided in Section 2.4 of the Second
Lien Credit Agreement, shall be as separately agreed between it and the Borrower.
(e) JPMorgan Chase Bank, N.A. shall from time to time, do all such things as Deutsche Bank
Trust Company Americas, as the successor Administrative Agent, may reasonably require or consider
desirable to enable it to replace JPMorgan Chase Bank, N.A. in the role of Administrative Agent and
to that intent JPMorgan Chase Bank, N.A. shall execute all such instruments, deeds and agreements,
obtain all consents, approvals and other authorizations necessary and shall give all such notices
and directions as Deutsche Bank Trust Company Americas may consider expedient.
8. Consent to Amendment of the First Lien Credit Agreement. The Lenders party to this
Amendment hereby consent to the execution and delivery to the parties thereto of the First
Amendment, dated as of the date hereof, to the First Lien Credit Agreement.
9. Continuing Effect of the Credit Agreement. This Amendment shall not be construed
as a waiver or consent to any further or future action on the part of the Borrowers that would
require a waiver or consent of the Administrative Agent and/or the Lenders. Except as amended
hereby, the provisions of the Credit Agreement are and shall remain in full force and effect.
10. Representations and Warranties. To induce the Lenders, the Administrative Agent,
the Collateral Agent and Deutsche Bank Trust Company Americas, as successor Administrative Agent,
to enter into this Amendment, the Borrowers hereby represent and warrant to the Administrative
Agent, the Collateral Agent, Deutsche Bank Trust Company Americas, as successor Administrative
Agent, and all of the Lenders as of the First Amendment Effective Date (after giving effect to this
Amendment) that:
(a) The representations and warranties made by each Borrower in and pursuant to the Credit
Documents are true and correct in all material respects on and as of the First Amendment Effective
Date, after giving effect to this Amendment, as if made on and as of the First Amendment Effective
Date, provided that, any representation or warranty made as of a
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specified date need only be true and correct in all material respects as of such specified
date.
(b) No Default or Event of Default shall have occurred and be continuing.
11. Counterparts. This Amendment may be executed in counterparts (including
counterparts by facsimile), and all of the said counterparts taken together shall be deemed to
constitute one and the same instrument.
12. Direction to Collateral Agent. By executing this Amendment, the Administrative
Agent hereby authorizes and directs the Second Lien Collateral Agent to execute this Amendment
pursuant to Section 10.4 of the Credit Agreement.
13. GOVERNING LAW. THE AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their respective proper and duly authorized officers as of the day and year first
above written.
FGX INTERNATIONAL INC., as a Borrower |
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By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | CEO | |||
FGX INTERNATIONAL LIMITED, as a Borrower |
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By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | CEO | |||
JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a Lender |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Managing Director | |||
GENERAL ELECTRIC CAPITAL CORPORATION, as Syndication Agent |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Duly Authorized Signatory | |||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Successor Administrative Agent and as a Lender |
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By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Director | |||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President |
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WILMINGTON TRUST COMPANY, as Second Lien Collateral Agent |
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By: | /s/ Xxxxx X. XxXxxxxx | |||
Name: | Xxxxx X. XxXxxxxx | |||
Title: | Authorized Signer |
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Atrium CDO, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Authorized Signatory |
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Canpartners Investments IV, LLC, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Authorized Signatory | |||
By: | Canpartners
Investments IV, LLC, a California limited liability company |
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Canyon Capital CLO 2004-1, Ltd. and Canyon Capital CLO 2006-1, Ltd., as a Lender |
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By: | /s/ Xxxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxxx Xxxxxx | |||
Title: | Authorized Signatory | |||
By: Canyon Capital Advisors LLC, a Delaware
limited liability company, its Collateral Manager
limited liability company, its Collateral Manager
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Atrium II, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Authorized Signatory |
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Xxxxxx Xxxxxx Funding, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Authorized Signatory |
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CSAM Funding I, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Authorized Signatory |
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CSAM Funding II, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Authorized Signatory |
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CSAM Funding III, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Authorized Signatory |
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XXXXX CAPITAL CP FUNDING LLC, as a Lender |
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By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice Chairman | |||
XXXXX CAPITAL PARTNERS FUNDING 2007-1 LTD., as a Lender
By: Xxxxx Capital Incorporated, as Servicer
By: Xxxxx Capital Incorporated, as Servicer
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice Chairman | |||
GOLUB INTERNATIONAL LOAN LTD. I, as a Lender
By: XXXXX CAPITAL INTERNATIONAL MANAGEMENT LLC, as Collateral Manager
By: XXXXX CAPITAL INTERNATIONAL MANAGEMENT LLC, as Collateral Manager
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice Chairman |
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GANNETT PEAK CLO I, LTD.
By: XxXxxxxxx Investment Management, LLC,
as Investment Manager
as a Lender
By: XxXxxxxxx Investment Management, LLC,
as Investment Manager
as a Lender
By: | /s/ Xxxxxxxx X. Xxxx | |||
Name: | Xxxxxxxx X. Xxxx | |||
Title: | Vice President |
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XXXXXXXXX
LOAN OPPORTUNITY LTD.
By: XxXxxxxxx Investment Management, LLC,
as Investment Manager
as a Lender
By: XxXxxxxxx Investment Management, LLC,
as Investment Manager
as a Lender
By: | /s/ Xxxxxxxx X. Xxxx | |||
Name: | Xxxxxxxx X. Xxxx | |||
Title: | Vice President |
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Store
Tower Credit Funding Ltd.
By: Store Tower Fund Management LLC,
as its Collateral Manager
as a Lender
By: Store Tower Fund Management LLC,
as its Collateral Manager
as a Lender
By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxx | |||
Title: | Authorized Signatory | |||
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