EXHIBIT 10.1
AMENDMENT NO. 1 AND WAIVER
AMENDMENT NO. 1 AND WAIVER (this "Amendment"), dated as of July
19, 2002, to that certain Credit Agreement, dated as of July 26, 2001, (the
"Credit Agreement"; capitalized terms used herein and not defined shall have the
meaning set forth in the Credit Agreement), among SOLA INTERNATIONAL INC., a
Delaware corporation (the "Borrower"), the Lenders party thereto, UBS WARBURG
LLC, as sole lead arranger, UBS AG, STAMFORD BRANCH, as an Issuing Bank, and as
administrative agent (in such capacity, the "Administrative Agent"), ABN AMRO
BANK, N.V., as syndication agent, UBS AG, STAMFORD BRANCH, as collateral agent
for the Lenders, and UNION BANK OF CALIFORNIA, as documentation agent.
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lenders agree to
amend and waive certain provisions of the Credit Agreement;
WHEREAS, pursuant to Section 9.08 of the Credit Agreement, the
Borrower and each of the undersigned Lenders hereby agree to amend and waive
certain provisions of the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION ONE - Amendments. The Borrower and the Lenders hereby
amend, subject to the satisfaction of the conditions set forth in Section Three
hereof:
(a) Section 1.01 of the Credit Agreement by adding thereto, in
appropriate alphabetical sequence, the following definition:
"euro" or "E" means the single currency of participating member
states of the European Union.
(b) The definition of "Adjusted Leverage Ratio" in Section 1.01
of the Credit Agreement by adding thereto, after the word "quarters" and
before the period at the end thereof, the following phrase:
"provided, that for the purposes of this definition, the rate of
exchange between the euro and the dollar shall be E 0.8905 to $1.0000"
(c) The definition of "Consolidated Interest Coverage Ratio" in
Section 1.01 of the Credit Agreement by adding thereto, after the word
"quarters" and before the period at the end thereof, the following
phrase:
"provided, that for the purposes of this definition, the rate of
exchange between the euro and the dollar shall be E 0.8905 to $1.0000"
(d) The definition of "Eligible Accounts Receivable" in Section
1.01 of the Credit Agreement by deleting the words "150 days" in clause
(d) and replacing it with the words "90 days".
(e) The definition of "Permitted Acquisition" in Section 1.01 of
the Credit Agreement by deleting the word "$10.0 million" in clause
(vii) and replacing it with the word "$5.0 million", deleting the word
"and" at the end of clause (viii) and by deleting clause (ix) and
replacing it with the following:
(ix) the aggregate Acquisition Consideration for all
Permitted Acquisitions shall not exceed $30.0 million since the
Closing Date; provided, further, that any Equity Interests
constituting all or a portion of such Acquisition Consideration
shall not have a cash dividend requirement on or prior to the
Revolving Credit Maturity Date; and
(x) after giving effect to the closing of each such
Permitted Acquisition, the amount of the Borrower's unrestricted
cash and cash equivalents (as defined in the Borrower's financial
statements filed with the Securities and Exchange Commission)
after giving effect to such Permitted Acquisition shall exceed
$45.0 million.
(f) Section 2.05(c)(ii) of the Credit Agreement by adding
thereto, after the parenthetical and before the period at the end
thereof, the following words:
"during the preceding month (or shorter period commencing with
the date hereof or ending with the Revolving Credit Maturity Date or the
date on which all Letters of Credit have been canceled or have expired
and the Commitments of all Lenders shall have been terminated)"
(g) Section 5.04 of the Credit Agreement by deleting clause (c)
and replacing it with the following:
"Monthly Reports. Within 30 days after the end of each calendar
month (other than the last month of a fiscal quarter), the consolidated
statements of income and cash flows and the balance sheet of the
Borrower for such month and for the then elapsed portion of the fiscal
year, in comparative form with the consolidated statements of income and
cash flows and the balance sheets for the comparable periods in the
previous fiscal year, accompanied by a certificate of a Financial
Officer stating that such financial statements fairly present, in all
material respects, the consolidated results of operations and cash flows
and the balance sheet of the Borrower as of the date and for the periods
specified in accordance with GAAP consistently applied, subject to
normal year-end and quarter-end adjustments, and such report shall be
marked confidential;"
(h) Section 6.08(a) of the Credit Agreement by deleting the table
therein and replacing it with the following:
Fiscal Year Ended Amount
----------------- ------
March 31, 2002 $30,000,000
March 31, 2003 $35,000,000
March 31, 2004 $30,000,000
and by deleting therefrom the third proviso in its entirety and
replacing it with the words "provided, further, that the aggregate
Capital Expenditures by the Borrower and its Subsidiaries shall not
exceed $95.0 million from and after the Closing Date to the Revolving
Credit Maturity Date".
SECTION TWO - Waiver. Effective as of the Amendment Effective
Date (as defined below), the Lenders hereby waive compliance by the Borrower
through the Revolving Credit Maturity Date of Section 6.04 of the Credit
Agreement with respect to the Borrower agreeing to defer payment in an amount
not to exceed $3.0 million in accounts receivable due to the Borrower (the
"Deferment") from U.S. Vision, Inc. ("USV"), in connection with the financing by
the Borrower and certain banks (the "USV Lenders") to USV in connection with its
merger with Kayak Acquisition Corporation (the "USV Merger"). The Deferment
shall be expressly set forth in writing, a copy of which shall be delivered to
the Lenders. The writing shall set forth that USV will to pay to the Borrower 6%
per annum payable not less frequently than quarterly on the Deferment through
the life of the Deferment. The writ
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ing shall further set forth that the Deferment shall not be subordinated other
than to the loans by the USV Lenders to USV in connection with the USV Merger,
in any event not to exceed $3.0 million of such financing.
SECTION THREE - Conditions to Effectiveness. This Amendment shall
become effective as of the date first above written (the "Amendment Effective
Date") when, and only when, the Administrative Agent shall have received
counterparts of this Amendment executed by the Borrower and the Required Lenders
or, as to any of the Lenders, advice satisfactory to the Administrative Agent
that such Lender has executed this Amendment. The effectiveness of this
Amendment (other than Sections Seven, Eight and Nine hereof) is conditioned upon
the accuracy of the representations and warranties set forth in Section Five
hereof and upon payment of the fees, costs and expenses set forth in the first
sentence of Section Seven hereof.
SECTION FOUR - Amendment Fee. Each Lender that executes and
delivers a signature page to this Amendment not later than 12:00 p.m. (New York
time) on July 17, 2002 (each, a "Qualifying Lender") will be entitled to receive
an amendment fee (the "Amendment Fee") equal to the product of .10% of the then
effective commitment of such Qualifying Lender on the Amendment Effective Date
and payable on 12:00 p.m. (New York time) on July 17, 2002. The Amendment Fee
shall be paid by the Borrower by wire transfer of immediately available funds to
the Administrative Agent and shall be distributed by the Administrative Agent to
each of the Qualifying Lenders.
SECTION FIVE - Representations, Warranties and Covenants. In
order to induce the Lenders and the Agents to enter into this Amendment, the
Borrower represents and warrants to each of the Lenders and the Agents that
before and after giving effect to this Amendment, (x) no Default or Event of
Default has occurred and is continuing; and (y) all of the representations and
warranties in the Credit Agreement, after giving effect to this Amendment, are
true and complete in all material respects on and as of the date hereof as if
made on the date hereof (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date). The
Borrower further represents and warrants (which representations and warranties
shall survive the execution and delivery hereof) to the Agents and each Lender
that:
(a) It has the corporate power and authority to execute, deliver
and perform this Amendment and have taken all corporate actions
necessary to authorize the execution, delivery and performance of this
Amendment;
(b) This Amendment has been duly executed and delivered on behalf
of the Borrower by a duly authorized officer or attorney-in-fact of the
Borrower; and
(c) The Borrower will not purchase any Notes unless each such
purchase is made in compliance with all applicable law.
SECTION SIX - Reference to and Effect on the Credit Agreement and
the Notes. On and after the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Notes and
each of 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 Credit Agreement, as modified by this Amendment. The
Loan Documents, as specifically modified by this Amendment, are and shall
continue to be in full force and effect and are hereby in all respects ratified
and confirmed. Without limiting the generality of the foregoing, the Security
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations under the Loan Documents, in each case as
modified by this Amendment. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or any Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION SEVEN - Costs, Expenses, Taxes and Fees. The Borrower
agrees to pay all reasonable costs and expenses of the Agents in connection with
the preparation, execution and delivery of this Amendment and
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the other instruments and documents to be delivered hereunder, if any
(including, without limitation, the reasonable fees and expenses of Xxxxxx
Xxxxxx & Xxxxxxx) in accordance with the terms of Section 9.05 of the Credit
Agreement. In addition, the Borrower shall pay or reimburse any and all stamp
and other taxes payable or determined to be payable in connection with the
execution and delivery of this Amendment and the other instruments and documents
to be delivered hereunder, if any, and agrees to save each Agent and each Lender
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes.
SECTION EIGHT - Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION NINE - Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York (without
giving effect to any provisions thereof relating to conflicts of law).
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
SOLA INTERNATIONAL INC.
By: /S/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
S-1
Lender Signature page to Amendment No. 1 to
Sola International Inc. Credit Agreement
UBS AG, STAMFORD BRANCH, as a Lender
By: /S/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Director
By: /S/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
S-2
Lender Signature page to Amendment No. 1 to
Sola International Inc. Credit Agreement
ABN-AMRO BANK, as a Lender
By: /S/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /S/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
S-3
Lender Signature page to Amendment No. 1 to
Sola International Inc. Credit Agreement
RZB FINANCE LLC, as a Lender
By: /S/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Group Vice President
By: /S/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
S-4
Lender Signature page to Amendment No. 1 to
Sola International Inc. Credit Agreement
UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /S/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
S-5
Lender Signature page to Amendment No. 1 to
Sola International Inc. Credit Agreement
WESTPAC BANKING CORPORATION, as a Lender
By: /S/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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