Exhibit 10.1
CONSENT AND AMENDMENT NO. 1
TO
MULTICURRENCY CREDIT AGREEMENT
THIS CONSENT AND AMENDMENT NO. 1 TO MULTICURRENCY CREDIT AGREEMENT,
dated as of March 31, 1997 (this "Agreement"), among Sola International Inc., a
Delaware corporation (the "Company"), Sola International Holdings Ltd.
(ACN007719708), a South Australian corporation, Sola Optical Holdings (U.K.)
Limited, an English corporation, Sola Optical S.A., a French corporation, Sola
Optical GmbH, a German corporation, Sola Hong Kong Limited, a Hong Kong
corporation, Sola ADC Lenses Limited, an Irish corporation, Sola Optical Italia
S.p.A., an Italian corporation, Sola Optical Japan Limited, a Japanese
corporation, Sola Optical Singapore Pte. Ltd., a Singapore corporation, American
Optical Corporation International AG, a Switzerland corporation (the Company and
such other Persons (such capitalized term and all other capitalized terms used
herein without being defined shall have the meanings provided for in the
Existing Credit Agreement (as defined below)), are each referred to as a
"Tranche A Revolving Borrower" and collectively as the "Tranche A Revolving
Borrowers"), the Persons named on the signature pages hereof as Subsidiary
Guarantors (each a "Subsidiary Guarantor" and collectively the "Subsidiary
Guarantors"), the several financial institutions parties to this Agreement,
including in their capacity as co-agents (collectively, the "Banks" and
individually a "Bank"), and Bank of America National Trust and Savings
Association, as agent (in such capacity, the "Agent") for the Banks.
W I T N E S S E T H:
WHEREAS, the Company, the Tranche A Revolving Borrowers, the Subsidiary
Guarantors, the Banks, the Co-Agents and the Agent are parties to the
Multicurrency Credit Agreement, dated as of June 14, 1996 (the "Existing Credit
Agreement"); and
WHEREAS, the Company, the Tranche A Revolving Borrowers and the
Subsidiary Guarantors have requested that the Banks amend the Existing Credit
Agreement as herein provided and approve the addition of Sola IFSC as an
additional Tranche A Revolving Borrower;
WHEREAS, Sola Holdings Ireland Ltd. ("Sola Ireland") has become a
Foreign Significant Subsidiary of the Company and is required, pursuant to
Section 7.13 of the Credit Agreement, to become a Foreign Subsidiary Guarantor;
and
WHEREAS, the Banks are willing, subject to the terms and conditions
hereinafter set forth, to amend the Existing Credit Agreement, approve the
addition of Sola IFSC, an Irish
unlimited liability company, as an additional Tranche A Revolving Borrower and
enter into the other transactions contemplated hereby;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto hereby agree as follows:
I
AMENDMENTS
Effective on (and subject to the occurrence of) the Effective Date (as
defined in Section 4.1), the Existing Credit Agreement is amended as follows
(the Existing Credit Agreement as so amended is herein referred to as the
"Amended Credit Agreement"):
I.1 . Amendment to Article I. The definition of Permitted Acquisition
in Article I of the Existing Credit Agreement is amended as follows:
(a) reference to $2,500,000 on line 2 of page 26 in clause
(b)(i) and on line 12 of page 26 in clause (b)(ii) is amended to read
"$5,000,000"; and
(b) clause (b)(iii) is amended by adding at the beginning
thereof on line 18 of page 26 the phrase "if the aggregate
consideration to be paid in connection with the Eligible Acquisition
exceeds $5,000,000,".
I.2 . Amendment to Section 5.03. Section 5.03 of the Existing Credit
Agreement is amended by inserting the word "not" after the word "is" and before
the word "an" on line 37 of page 71 of the Existing Credit Agreement.
I.3 . Amendment to Section 8.10. Section 8.10 of the Existing Credit
Agreement is amended by
(a) deleting "and" at the end of clause (v) on line 2 of page
91;
(b) deleting the period at the end of clause (vi) on line 24
of page 91 and inserting on lieu thereof a ";"; and
(c) adding a new clause (vii) as follows:
"(vii) purchase, redeem, acquire or retire
for value shares of capital stock of the Company or
options on any such shares or related stock
appreciation rights or similar securities, provided
that the aggregate amount of consideration paid for
all such purchases,
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redemptions, acquisitions or retirements shall not
exceed $30,000,000 since the Closing Date."
II
CONSENT TO ADDITIONAL BORROWER
Effective on (and subject to the occurrence of) the Effective Date, the
Majority Banks hereby consent to the addition of Sola IFSC, as an additional
Tranche A Revolving Borrower. Notwithstanding such consent, Sola IFSC may not
request the making of any Credit Extension, and the Tranche A Revolving Bank
shall not make any Credit Extension available to or on behalf of Sola IFSC,
unless and until Sola IFSC has executed and delivered with the Tranche A
Revolving Bank a Tranche A Revolving Supplement Agreement that is in form and
substance satisfactory to the Tranche A Revolving Bank and has satisfied the
other conditions set forth in Section 5.03 of the Amended Credit Agreement.
III
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to make the amendments provided for in
Article I, provide the consent provided for in Article II, and provide the
waiver provided for in Section 5.8, each of the Company, the Tranche A Revolving
Borrowers and the Subsidiary Guarantors hereby (a) represents and warrants that
(i) each of the representations and warranties contained in the Existing Credit
Agreement and in the other Loan Documents (both immediately before and after
giving effect to the Joinder in Credit Agreement executed hereby by Sola IFSC
and Sola Ireland) is true and correct in all material respects as of the date
hereof as if made on the date hereof (except, if any such representation and
warranty relates to an earlier date, such representation and warranty shall be
true and correct in all material respects as of such earlier date), (ii) each of
Sola IFSC and Sola Ireland is a Wholly-Owned Subsidiary of the Company, all the
shares of capital stock of which are owned beneficially by the Company free and
clear of all Liens and (iii) both immediately before and after giving effect to
the provisions of this Agreement no Default or Event of Default has occurred and
is continuing and (b) agrees that the incorrectness in any material respect of
any representation and warranty contained in this Article III shall constitute
an immediate Event of Default.
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CONDITIONS TO EFFECTIVENESS; EXPIRATION
IV.1 . Effective Date. This Agreement shall become effective on
such date (herein called the "Effective Date" when the conditions set forth in
this Section 4.1 have been satisfied.
IV.1.1 . Execution of Agreement. The Agent shall have received
counterparts of this Agreement duly executed and delivered on behalf of the
Company, the Tranche A Revolving Borrowers, the Subsidiary Guarantors and the
Majority Banks.
IV.1.2 . Joinder in Credit Agreements. Each of Sola IFSC and Sola
Ireland shall have duly executed and delivered in favor of the Agent a Joinder
in Credit Agreement in which Sola IFSC and Sola Ireland shall have become a
Tranche A Revolving Borrower and Foreign Subsidiary Guarantor, respectively.
IV.1.3 . Ireland Resolutions: Incumbency, etc. Sola IFSC and Sola
Ireland shall have delivered to the Agent a certificate of its Secretary or
Assistant Secretary certifying, as of the Effective Date, the following:
(a) true and correct copies of board of directors resolutions
authorizing the execution and delivery of its Joinder in Credit Agreement and
the performance of its obligations thereunder, under the Amended Credit
Agreement and the other Loan Documents;
(b) the true signatures of the officers of each such Person
authorized to execute, deliver and perform its Joinder in Credit Agreement, the
Amended Credit Agreement and the other Loan Documents; and
(c) the articles or certificate of incorporation and the
bylaws of each such Person as in effect on the Effective Date.
IV.1.4 . Other Resolutions. The Company shall have delivered to the
Agent copies of the resolutions of its board of directors authorizing the
execution, delivery and performance of this Agreement, certified as of the
Effective Date by the Secretary or Assistant Secretary of each such Person.
IV.2 . Expiration. If the Effective Date shall not have occurred on
or prior to May 8, 1997, the agreements of the parties contained in this
Agreement shall, unless otherwise agreed by the Majority Banks, terminate
effective immediately on such date and without further action.
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IV.2
V
MISCELLANEOUS
V.1 . Cross-References. References in this Agreement to any
Article or Section are, unless otherwise specified, to such Article or Section
of this Agreement.
V.2 . Loan Document Pursuant to Credit Agreement. This Agreement
is a Loan Document executed pursuant to the Amended Credit Agreement, including,
without limitation, for purposes of construction as provided in Article I and XI
thereof. Except as expressly amended, waived and consented to hereby, all of the
representations, warranties, terms, covenants and conditions contained in the
Existing Credit Agreement and each other Loan Document shall remain unamended or
otherwise unmodified and in full force and effect. The amendment set forth in
Article I, the consent provided for in Article II and the waiver provided for in
Section 5.8 shall be limited precisely as provided for herein and shall not be
deemed to be a waiver of, amendment of, consent to or modification of any other
term or provision of the Existing Credit Agreement or of any term or provision
of any other Loan Document or of any transaction or further or future action on
the part of the Company, the Tranche A Revolving Borrowers, the Subsidiary
Guarantors which would require the consent of any of the Banks under the
Existing Credit Agreement, the Amended Credit Agreement or any other Loan
Document.
V.3 . Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
V.4 . Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
V.5 . Further Assurance. The Company, the Tranche A Revolving
Borrowers and the Subsidiary Guarantors shall execute and deliver, from time to
time, in favor of the Agent and the Banks, such documents, agreements,
certificates and other instruments as shall be necessary or advisable to effect
the purposes of this Agreement.
V.6 . Costs and Expenses. The Company, the Tranche A Revolving
Borrowers and the Subsidiary Guarantors jointly and severally agree to pay all
reasonable costs and expenses incurred by the Agent (including the reasonable
fees and out-of-pocket expenses of legal counsel of the Agent) incurred in
connection with the execution and delivery of this Agreement and the other
agreements and documents entered into in connection herewith.
V.7 . GOVERNING LAW; WAIVER OF JURY TRIAL; ENTIRE AGREEMENT. THIS
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK.
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EACH PERSON A PARTY HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY AGREEMENT OR DOCUMENT ENTERED INTO IN
CONNECTION HEREWITH. THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING AMONG
THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY
PRIOR AGREEMENT, WRITTEN OR ORAL, WITH RESPECT HERETO.
V.8 . Waiver. Each Bank executing this Agreement agrees to waive
compliance with the requirement of Section 7.13 of the Existing Credit Agreement
that Sola IFSC and Sola Ireland shall have executed a Joinder in Credit
Agreement within ten Business Days after each of them became a Significant
Subsidiary of the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers hereunto duly authorized as of the day and
year first above written.
BORROWERS:
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SOLA INTERNATIONAL INC.
By: _________________________________
Name:
Title:
SOLA INTERNATIONAL HOLDINGS LTD.
(ACN007719708)
SOLA OPTICAL HOLDINGS (U.K.) LIMITED
SOLA OPTICAL X.X.
XXXX OPTICAL GMBH
SOLA HONG KONG LIMITED
SOLA ADC LENSES LIMITED
SOLA OPTICAL ITALIA S.P.A.
SOLA OPTICAL JAPAN LIMITED
SOLA OPTICAL SINGAPORE PTE. LTD.
AMERICAN OPTICAL COMPANY
INTERNATIONAL AG
By: _________________________________
Name:
Title:
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SUBSIDIARY GUARANTORS:
----------------------
SOLA OPTICAL HOLDINGS PTY. LTD.
(ACN0060836811)
SOLA CORPORATION LIMITED
(ACN008065905)
SOLA BRASIL INDUSTRIA OPTICA LTDA.
SOLA OPTICAL (U.K.) LIMITED
INDUSTRIES OPTIQUE SOLA X.X.
XXXX OPTICAL HOLDINGS S.A.R.L.
SOLA GROUP HOLDINGS GMBH
AMERICAN OPTICAL LENS COMPANY
SOLA OPTICAL HOLDINGS AUS. LTD.
SOLA OPTICAL HOLDINGS FR. LTD.
AO OUEST OPTIQUE S.A.
By: _________________________________
Name:
Title:
SOLA OPTICAL PARTNERS, a Limited
Partnership, by its Managing Partner,
Sola International Inc.
By: _________________________________
Name:
Title:
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AGENT:
------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Agent
By: _________________________________
Name:
Title:
ISSUING BANK:
-------------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Issuing Bank
By: _________________________________
Name:
Title:
BANKS:
------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: _________________________________
Name:
Title:
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XXX XXXX XX XXXX XXXXXX
-----------------------
By: _________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By: _________________________________
Name:
Title:
DEUTSCHE BANK AG
Los Angeles Branch and/or
Cayman Islands Branch
By: _________________________________
Name:
Title:
LASALLE NATIONAL BANK
By: _________________________________
Name:
Title:
NATIONSBANK OF TEXAS N.A.
By: _________________________________
Name:
Title:
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SOCIETE GENERALE
By: _________________________________
Name:
Title:
BANQUE PARIBAS
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
Los Angeles Branch
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.
By: _________________________________
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Name:
Title:
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XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: _________________________________
Name:
Title:
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