Exhibit 10.2
AMENDMENT NO. 2
TO
MULTICURRENCY CREDIT AGREEMENT
THIS AMENDMENT NO. 2, DATED AS OF NOVEMBER 5, 1997, TO MULTICURRENCY
CREDIT AGREEMENT, DATED AS OF JUNE 14, 1996, AS AMENDED (this "Amendment"),
among Sola International Inc., a Delaware corporation (the "Company"), Sola
IFSC, an Irish unlimited liability 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 Company 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 from time to time party to the
Amended Credit Agreement (as defined below), 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, as amended by
Amendment No. 1, dated as of March 31, 1997 (the "Existing Credit Agreement");
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;
WHEREAS, the Banks are willing, subject to the terms and conditions
hereinafter set forth, to amend the Existing Credit Agreement, and enter into
the other transactions contemplated hereby; and
WHEREAS, the parties to the Existing Credit Agreement desire to add as
parties to the Existing Credit Agreement, as modified by this Amendment, certain
additional Banks;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto hereby agree as follows:
AMENDMENTS
Effective on (and subject to the occurrence of) the Effective Date (as
defined in Section 3.1), the Existing Credit Agreement is amended as follows
(the Existing Credit Agreement as so amended is herein referred to as the
"Amended Credit Agreement"):
Amendments to Article I. Article I to the Existing Credit Agreement
shall be amended as follows:
The definition of Applicable Margin in Article I of the
Existing Credit Agreement is amended in its entirety to read as follows:
"'Applicable Margin' means (a) with respect to the unpaid
principal amount of each Base Rate Loan, the applicable percentage set
forth in the table below in the column entitled 'Applicable Margin for
Base Rate Loans'; and (b) with respect to the unpaid principal amount
of each LIBOR Rate Loan and Tranche A Revolving Loan that is a Fixed
Rate Loan, the applicable percentage set forth in the table below in
the column entitled 'Applicable Margin for LIBOR Rate Loans and Tranche
A Revolving Loans that are Fixed Rate Loans':
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Leverage Applicable Margin for Applicable Margin Commitment
Ratio LIBOR Rate Loans and for Base Rate Loans Fee Rate
Tranche A Revolving Loans
that are Fixed Rate Loans
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(Less than or equal to) 3.00:1.00 0.750% Zero 0.225%
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(Less than or equal to) 2.50:1.00 0.625% Zero 0.175%
and
(Greater than) 3.00:1.00
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(Less than or equal to) 2.00:1.00 0.500% Zero 0.150%
and
(Greater than) 2.50:1.00
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(Greater than) 2.00:1.00 0.450% Zero 0.1375%
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The Leverage Ratio used to compute the Applicable Margin and
the Commitment Fee Rate shall be the Leverage Ratio set forth in the
Compliance Certificate and relevant financial statements delivered by
the Company to the Agent on the Closing Date pursuant to subsections
5.01(g) and (l) and, after the Closing Date, in the Compliance
Certificate most recently delivered by the Company to the Agent
pursuant to subsection 7.02(b) with respect to each fiscal quarter and
the relevant financial statements relating to such fiscal quarter
required to be delivered pursuant to Section 7.01. If the Company shall
fail to so deliver such Compliance Certificate and financial statements
as required pursuant to such subsections, the Applicable Margin and
Commitment Fee Rate shall conclusively be presumed to equal, from the
date the Company was required to deliver such Compliance Certificate
and related financial statements until the date three Business Days
after the Company actually delivers to the Agent such Compliance
Certificate and financial statements, the highest Applicable Margin and
Commitment Fee Rate set forth in the above table. Any increase or
decrease in the Applicable Margin and Commitment Fee Rate as a result
of the delivery of a Compliance Certificate and related financial
statements shall become effective three Business Days after the date of
delivery of the same to the Agent. All of the above interest rates are
at a per annum rate. Notwithstanding the foregoing, through and
including June 30, 1998 the Applicable Margin and Commitment Fee Rate
shall not, in any event, be less than those rates resulting from the
Leverage Ratio being (Less than or equal to) 2.00:1.00 and (Greater
than) 2.5.0:1.00. The Applicable Margin with respect to the unpaid
principal amount of each Tranche A Revolving Loan that is a Floating
Rate Loan shall be specified in each applicable Tranche A Revolving
Supplement Agreement.
The definition of Arranger in Article I of the Existing Credit
Agreement is amended to read as follows:
"'Arranger' means BancAmerica Xxxxxxxxx Xxxxxxxx, a Delaware
corporation."
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The definition of Available Net Equity Proceeds in Article I
of the Existing Credit Agreement is amended by deleting the comma after the
reference to subsection 8.04(c) and by deleting the reference to subsection
8.05(l) on lines 27 and 28, respectively, of page 4.
The definition of Bank in the Existing Credit Agreement is
amended by deleting the word "and" immediately before the phrase "each Issuing
Bank" and substituting in lieu thereof a comma and inserting the following
immediately after the phrase "each Issuing Bank":
"and the Designated Lenders, if any; provided, however, that the term
"Bank" shall exclude each Designated Lender when used in reference to a
Loan (except to the extent a Designated Lender is the obligee of a Loan
actually funded by it pursuant to subsections 2.01(e) or 3.03(a)
hereof), the Commitments or terms relating to the Loans (except as
noted above) and the Commitments"
The following definitions shall be inserted after the
definition of Default in the Existing Credit Agreement:
"'Designated Lender' means a special purpose corporation that
is provided liquidity and/or credit support by the Designating Lender
for such Designated Lender, is organized under the laws of any state of
the United States and that (a) shall have become a party to this
Agreement pursuant to subsection 11.08(f), and (b) is not otherwise a
Bank.
'Designated Lender Note' means a promissory note of the
Company, substantially in the form of Exhibit F-1, F-2 or F-4 hereto,
as applicable, evidencing the obligation of the Company to repay Loans
made by a Designated Lender, and "Designated Lender Notes" means any
and all such promissory notes issued hereunder.
'Designating Lender' shall mean each Bank that shall designate
a Designated Lender pursuant to subsection 11.08(f) hereof.
'Designation Agreement' means a designation agreement in
substantially the form of Exhibit L attached hereto, entered into by a
Bank and a Designated Lender and accepted by the Company and the
Agent."
The following definition shall be inserted after the
definition of Domestic Subsidiary Guarantor in the Existing Credit Agreement:
"'EBIT' means, for any period, the sum (without duplication)
of
(a) Net Income;
plus
(b) the amount deducted, in determining Net Income, of all
income taxes (whether paid or deferred) of the Company and its
Subsidiaries;
plus
(c) Interest Expense (including amortization of debt
discount);
plus
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(d) the amount deducted, in determining Net Income, of all
non-recurring, noncash charges for which no cash outlays have been made
at the time of such noncash charges or will be made thereafter."
The definition of Existing Credit Documents in Article I of
the Existing Credit Agreement is deleted in its entirety.
The definition of Fixed Charge Coverage Ratio in Article I of
the Existing Credit Agreement is deleted in its entirety.
The definition of Foreign Obligations in Article I of the
Existing Credit Agreement is amended by deleting the phrase "and each Foreign
Subsidiary Guarantor" on lines 44 and 45 of page 13.
The definition of Foreign Subsidiary Guarantor in Article I of
the Existing Credit Agreement is deleted in its entirety.
The following definition shall be inserted after the
definition of Intercompany Subordinated Indebtedness in the Existing Credit
Agreement:
"'Interest Coverage Ratio' means, at the end of any fiscal
quarter, the ratio of EBIT to Interest Expense."
The definition of L/C Commitment Amount in Article I of the
Existing Credit Agreement is amended to read as follows: the reference to
$10,000,000 on line 23 of page 18 is amended to read "$75,000,000."
The definition of Loan in Article I of the Existing Credit
Agreement is amended by inserting the phrase "or a Designated Lender"
immediately after the word "Bank" on line 36 of page 20.
The definition of Tranche B Revolving Commitment Amount in
Article I of the Existing Credit Agreement is amended to read as follows: the
reference to $120,000,000 on line 6 of page 33 is amended to read
"$270,000,000."
Amendments to Section 2.01. Section 2.01 of the Existing Credit
Agreement shall be amended as follows:
Subsection 2.01(a) of the Existing Credit Agreement shall be
amended by adding thereto the following provisions at the end thereof:
"It is agreed that the 'Term Loans' under the Existing Credit Agreement
shall, upon the Effective Date of Amendment No. 2 to this Agreement, be
repaid, together with accrued interest thereon, with the proceeds of
Tranche B Revolving Loans under the Amended Credit Agreement made in
accordance with the terms and provisions of subsection 2.01(c).
Promptly after the Effective Date, each Term Loan Bank shall return its
Term Loan Note to the Agent which shall deliver the same to the Company
for cancellation."
Section 2.01 of the Existing Credit Agreement shall be amended
by inserting the following new subsection 2.01(e) immediately after subsection
2.01(d):
"(e) Loans by Designated Lenders. For any Bank which is a
Designating Lender, any Loan to be made by such Bank may from time to
time be made by its Designated Lender in such Designated Lender's sole
discretion, and nothing herein shall constitute a commitment to make
Loans by such Designated Lender; provided that if any Designated Lender
elects not to, or fails to, make any such Loan, its Designating Lender
hereby agrees that it shall make such Loan
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pursuant to the terms hereof. Any Loan actually funded by a Designated
Lender shall constitute a utilization of the applicable Tranche A
Revolving Commitment, Tranche B Revolving Commitment, Swing Line
Commitment and/or L/C Commitment of its Designating Lender for all
purposes hereunder."
Amendments to Section 2.14. Section 2.14 of the Existing Credit
Agreement shall be amended as follows:
Subsection 2.14(a) of the Existing Credit Agreement is amended
by inserting the phrase "or in the case of a Domestic Bank that is a Designating
Lender, its Designated Lender" immediately after the word "Bank" on line 26 of
page 50, by inserting the phrase "or Designated Lender, as the case may be,"
immediately after the word "Bank" on line 28 of page 50, by inserting the phrase
"or Designated Lender" immediately after the word "Bank" on lines 31 and 33 of
page 50, and by inserting the phrase "or Designated Lender's" immediately after
the word "Bank's" on line 37 of page 50.
Subsection 2.14(b) of the Existing Credit Agreement is amended
by inserting the phrase "or Designated Lender" immediately after the word "Bank"
on lines 45 and 46 of page 50 and lines 1 and 2 of page 51.
Amendments to Section 3.03. Section 3.03 of the Existing Credit
Agreement shall be amended as follows:
Subsection 3.03(a) of the Existing Credit Agreement is amended
as follows:
(i) By inserting the following immediately after the end of
the first sentence on line 37 of page 55:
"For any Tranche B Revolving Bank which is a Designating
Lender, any such purchase of a participation in a Letter of
Credit and each drawing thereunder to be made by such Bank may
from time to time be made by its Designated Lender in such
Designated Lender's sole discretion, and nothing herein shall
constitute a commitment to make such purchases by such
Designated Lender; provided that if any Designated Lender
elects not to, or fails to, make any such purchase, its
Designating Lender hereby agrees that it shall make such
purchase pursuant to the terms hereof."; and
(ii) By deleting the reference to subsection 2.01(c) on line
37 of page 55 and inserting in lieu thereof the reference "subsections
2.01(c) and (e)".
Subsection 3.03(b) of the Existing Credit Agreement is amended
by inserting the phrase "or their Designated Lenders, as the case may be,"
immediately after the word "Banks" on line 5 of page 56.
Subsection 3.03(c) of the Existing Credit Agreement is amended
by inserting the phrase "or its Designated Lender, as the case may be,"
immediately after the word "Bank" on line 12 of page 56, by inserting the phrase
"or its Designated Lender, as the case may be," immediately after the word
"notified" on line 18 of page 56, by inserting the phrase "or Designated
Lender's" immediately after the word "Bank's" on line 21 of page 56, and by
inserting the phrase "or Designated Lender" immediately after the word "Bank" on
line 25 of page 56.
Subsection 3.03(d) of the Existing Credit Agreement is amended
by inserting the phrase "or Designated Lender's" immediately after the word
"Bank's" on line 33 of page 56.
Subsection 3.03(e) of the Existing Credit Agreement is amended
by inserting the phrase "or any Designated Lender" immediately after the word
"Bank" on line 43 of page 56.
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Amendment to Subsection 7.12(a). Subsection 7.12(a) of the Existing
Credit Agreement shall be amended in its entirety to read as follows:
"(a) The Borrowers shall use all proceeds of
(i) the Tranche A Revolving Loans for (A) working
capital purposes of the Borrowers and (B) consummating Permitted
Acquisitions; provided, however, that notwithstanding the foregoing,
the proceeds of the Tranche A Revolving Loans to Sola Optical Singapore
Pte Ltd. shall only be used for the purpose of financing direct exports
from and imports into Singapore and economic activities in Singapore,
and not any activities which would violate the guidelines of the
Monetary Authority of Singapore as set forth in the Notice to Banks,
MAS 621, dated July 18, 1992;
(ii) the Tranche B Revolving Loans for (A)
refinancing the Term Loans as provided in subsection 2.01(a), (B)
repurchasing the Subordinated Notes, (C) working capital purposes of
the Borrowers and (D) consummating Permitted Acquisitions; and
(iii) the Swing Line Loans for working capital
purposes of the Borrowers."
Amendment to Section 7.13. Section 7.13 of the Existing Credit
Agreement shall be amended by inserting the clause "which is incorporated in any
State of the United States or the District of Columbia" immediately after the
word "Person" on Line 20 of page 82, by inserting the word "Domestic"
immediately after the word "such" on Line 21 of page 82 and by deleting the
phrase "subject to the first sentence of this Section 7.13," on lines 28 and 29
of page 82.
Amendment to Subsection 8.05(l). Subsection 8.05(l) of the Existing
Credit Agreement shall be amended in its entirety to read as follows:
"(l) other unsecured Indebtedness in an aggregate amount not
to exceed at any time $150,000,000."
Amendment to Section 8.10. Section 8.10 of the Existing Credit
Agreement shall be amended by deleting the period at the end of clause (vi) in
line 24 of page 91 and inserting in lieu thereof a semi-colon and by adding
thereafter the following additional proviso:
"provided, however, that the limitations in the immediately preceding
proviso shall not apply to the repurchase of Subordinated Notes
outstanding at September 30, 1997 effected otherwise in accordance with
the terms and provisions of this subsection 8.10(vi)."
Amendment to Subsection 8.12(a). Subsection 8.12(a) of the Existing
Credit Agreement shall be amended in its entirety after the caption thereof to
read as follows:
"The Company shall not permit the Leverage Ratio to be greater than
3.20:1.00 as of the last day of each fiscal quarter occurring on
September 30, 1997 and thereafter."
Amendment to Subsection 8.12(b). Subsection 8.12(b) of the Existing
Credit Agreement shall be amended in its entirety to read as follows:
"(b) Interest Coverage Ratio. The Company shall not
permit its Interest Coverage Ratio to be less than 1.50:1.00 as of the
last day of each fiscal quarter ending on September 30, 1997 and
thereafter."
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Amendment to Subsection 8.12(c). Subsection 8.12(c) of the Existing
Credit Agreement shall be amended as follows: the references to the Closing Date
on lines 10, 12 and 16 of page 92 are amended to read "June 30, 1997".
Amendment to Article X. Article X of the Existing Credit Agreement
shall be amended as follows:
Section 10.03 of the Existing Credit Agreement is amended by
inserting the phrase "or Designated Lender" immediately after the word "Bank" on
line 6 of page 98.
Subsection 10.04(a) of the Existing Credit Agreement is
amended by inserting the phrase "or Designated Lenders" immediately after the
word "Banks" on line 20 of page 98, and by inserting the phrase "and Designated
Lenders" immediately after the word "Banks" on line 26 of page 98.
Subsection 10.04(b) of the Existing Credit Agreement is
amended by inserting the phrase "and each Designated Lender" immediately after
the word "Agreement" on line 29 of page 98, by inserting the phrase "or such
Designated Lender's Designating Lender" immediately after the word "Bank" on
line 31 of page 98 and by inserting the phrase "and such Designated Lender's
Designating Lender" immediately after the word "Bank" on line 32 of page 98.
Section 10.06 of the Existing Credit Agreement is amended by
inserting the phrase "and Designated Lender" immediately after the word "Bank"
on line 1 of page 99, by inserting the phrase "or Designated Lender" immediately
after the phrase "any Bank" on line 4 of page 99, by inserting the phrase "and
Designated Lender" immediately after the phrase "Each Bank" on line 4 of page
99, by inserting the phrase "and Designated Lender" immediately after the word
"Bank" on line 11 of page 99, and by inserting the phrase "or Designated Lender"
immediately after the word "Bank" on line 18 of page 99.
Section 10.07 of the Existing Credit Agreement is amended by
inserting the phrase "and Designated Lenders" immediately after the word "Banks"
on line 24 of page 99, and by inserting the following immediately after the word
"misconduct" on line 29 of page 99:
"; and provided further that no Designated Lender shall be liable for
any payment under this Section 10.07 so long as, and to the extent
that, its Designating Lender makes such payments".
Section 10.08 of the Existing Credit Agreement is amended by
inserting the phrase "and Designated Lenders" immediately before the word
"acknowledge" on line 43 of page 99.
Amendment to Section 11.01. Section 11.01 of the Existing Credit
Agreement shall be amended by inserting the following at the end thereof:
"Each Designating Lender may act on behalf of its Designated Lender
with respect to any and all rights of its Designated Lender to grant or
withhold any consent hereunder to the fullest extent it has been so
delegated to act by its Designated Lender pursuant to its Designation
Agreement, including, without limitation, any rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement
or any other Loan Document, which amendment, consent or waiver would
require unanimous consent of the Banks as described in the first
proviso to this Section 11.01."
Amendment to Section 11.08. Section 11.08 of the Existing Credit
Agreement shall be amended by inserting the following new subsections 11.08(f)
and (g) immediately after subsection 11.08(e):
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"(f) Any Bank may at any time designate not more than one
Designated Lender to fund all, or any portion, of such Bank's Pro Rata
Share of Loans on behalf of such Designating Lender subject to the
terms of this subsection 11.08(f), and the provisions of subsections
11.08(a), (b) and (c) hereof shall not apply to such designation. No
Bank may have more than one Designated Lender at any time. Such
designation may occur only by the execution by such Bank and Designated
Lender of a Designation Agreement. The parties to each such designation
shall execute and deliver to the Agent and the Company for their
acceptance a Designation Agreement. Upon such receipt of an
appropriately completed Designation Agreement executed by a Designating
Lender and a designee representing that it is a Designated Lender and
consented to by the Company, the Agent will accept such Designation
Agreement and will give, within five (5) Business Days of receipt of
such Designation Agreement, written notice thereof to the Company and
the other Banks, whereupon, upon the Agent's receipt from the
Designating Lender of such Designating Lender's Note for cancellation
and the Agent's confirmation of such receipt to the Company, (i) the
Company shall execute and deliver to the Agent for forwarding to the
Designating Lender a Designated Lender Note payable to the order of the
Designated Lender, (ii) from and after the effective date specified in
the Designation Agreement, the Designated Lender shall become a party
to this Agreement with a right to make Loans on behalf of its
Designating Lender pursuant to subsections 2.01(e) and 3.03(a), and
(iii) the Designated Lender shall not be required to make payments with
respect to any obligations under this Agreement except to the extent of
excess cash flow of such Designated Lender which is not otherwise
required to repay obligations of such Designated Lender which are then
due and payable; provided, however, that regardless of such designation
and assumption by the Designated Lender, the Designating Lender shall
be and remain obligated to the Company, the Agent and the Banks for
each and every of the obligations of the Designating Lender and its
related Designated Lender with respect to this Agreement, including,
without limitation, any indemnification obligations under Section 10.07
hereof and any sums otherwise payable to the Company by the Designated
Lender. Each Designating Lender, or a specified branch or affiliate
thereof, shall serve as the administrative agent of its Designated
Lender and shall on behalf of its Designated Lender: (i) receive any
and all payments made for the benefit of such Designated Lender, (ii)
give and receive all communications and notices hereunder and under the
other Loan Documents, including, without limitation, furnishing to such
Designated Lender copies of all financial statements, certificates and
other information furnished by the Company to the Agent for the Banks
hereunder, and (iii) take all actions required or permitted to be taken
by a Designated Lender hereunder, including, without limitation, votes,
approvals, waivers, consents and amendments under or relating to this
Credit Agreement and the other Loan Documents, including, without
limitation, the exercise of any rights to approve any amendment to, or
any consent or waiver with respect to, this Agreement or any other Loan
Document which amendment, consent or waiver would require unanimous
consent of the Banks as described in the first proviso to Section
11.01. Any such notice, communication, vote, approval, waiver, consent
or amendment shall be signed by a Designating Lender, or specified
branch or affiliate thereof, as administrative agent for its Designated
Lender and need not be signed by such Designated Lender on its own
behalf. The Company, the Agent and the Banks may rely thereon without
any requirement that the Designated Lender sign or acknowledge the
same. Without limiting the generality of the foregoing two sentences,
the signature of the Designating Lender on any such notice,
communication, vote, approval, waiver, consent or amendment shall be
deemed to bind irrevocably the Designated Lender. Notwithstanding any
designation hereunder, the Agent, the Company and the Issuing Lender
may continue to deal solely and directly with the Designating Lender in
connection with any and all matters relating to such designation and
the Designating Lender's and the Designated Lender's respective rights
and obligations hereunder and under the other Loan Documents,
including, without limitation, voting rights, and, except as expressly
set forth herein with respect to processing Designation Agreements, the
Agent shall have no duties or responsibilities of any type to the
Designating Lender, the Designated Lender or any other Person with
respect to any designation hereunder, including, without limitation,
duties of record keeping, monitoring, tracking, identification,
notification or payment or other handling of funds
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directly or indirectly on behalf of the Designated Lender. No
Designated Lender may assign, transfer or otherwise dispose of its
interest hereunder or under any other Loan Document, other than to its
Designating Lender. The Designating Lender shall provide prompt written
notice of any such assignment, transfer or other disposition to the
Agent.
(g) Each of the Company, the Banks and the Agent agrees that
it will not institute against any Designated Lender or join any other
Person in instituting against any Designated Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under
any federal or state bankruptcy or similar law, for one year and one
day after the payment in full of the latest maturing commercial paper
note issued by such Designated Lender."
Amendments to Section 11.09. Section 11.09 of the Existing Credit
Agreement shall be amended as follows:
Subsection 11.09(a) of the Existing Credit Agreement is
amended by deleting the word "Borrowers" on line 27 of page 105 and inserting in
lieu thereof the word "Company", by deleting therefrom all of clause (ii) and by
deleting the phrase "each Borrower and Subsidiary Guarantor" on line 17 of page
106 and inserting in lieu thereof the phrase "the Company and each Subsidiary
Guarantor".
Subsection 11.09(b) of the Existing Credit Agreement is
amended by deleting the phrase "Each Borrower and Subsidiary Guarantor" on line
23 of page 106 and inserting in lieu thereof the phrase "The Company and each
Subsidiary Guarantor", by deleting the subsection reference "(i)" on line 27 of
page 106 and by deleting the comma, the word "and" immediately before the
subsection reference (ii) and all of clause (ii) on lines 30 through 34 of page
106 and inserting in lieu thereof a period.
Subsection 11.09(c) of the Existing Credit Agreement is
amended by deleting the phrase "each Borrower and Subsidiary Guarantor" on lines
38 and 39 of page 106 and inserting in lieu thereof the phrase "the Company and
each Subsidiary Guarantor", by deleting the phrase "Each Borrower and Subsidiary
Guarantor" on line 40 of page 106 and inserting in lieu thereof the phrase "The
Company and each Subsidiary Guarantor", by deleting the phrase "Borrower and
Subsidiary Guarantor" on line 41 of page 106 and inserting in lieu thereof the
word "Person", by deleting the phrase "each Borrower and Subsidiary Guarantor"
on lines 44 and 45 of page 106 and inserting in lieu thereof the phrase "the
Company and each Subsidiary Guarantor", and by deleting the phrase "each
Borrower and Subsidiary Guarantor" on line 40 of page 107 and inserting in lieu
thereof the phrase "the Company and each Subsidiary Guarantor".
Subsection 11.09(d) of the Existing Credit Agreement is
amended by deleting the phrase "Each Borrower and Subsidiary Guarantor" on line
4 of page 108 and inserting in lieu thereof the phrase "The Company and each
Subsidiary Guarantor" and by deleting the phrase "Borrower and Subsidiary
Guarantor" on line 7 of page 108 and inserting in lieu thereof the word
"Person".
Subsection 11.09(e) of the Existing Credit Agreement is
amended by deleting the phrase "Each Borrower and Subsidiary Guarantor" on line
11 of page 108 and inserting in lieu thereof the phrase "The Company and each
Subsidiary Guarantor" and by deleting the phrase "Borrower and Subsidiary
Guarantor" on line 13 of page 108 and inserting in lieu thereof the word
"Person".
Subsection 11.09(f) of the Existing Credit Agreement is
amended by deleting the phrase "Each Borrower and Subsidiary Guarantor" on line
18 of page 108 and inserting in lieu thereof the phrase "The Company and each
Subsidiary Guarantor", by deleting the phrase "any Borrower and Subsidiary
Guarantor" on line 28 of page 108 and inserting in lieu thereof the phrase "the
Company or any Subsidiary Guarantor", by deleting the phrase "Borrower and
Subsidiary Guarantor" on line 29 of page 108 and inserting in lieu thereof the
word "Person", by deleting the phrase "Borrower and Subsidiary Guarantor, as the
case may be" on line 32 of page 108 and inserting in lieu thereof the word
"Person", by deleting the references to Sola Optical Partners, Sola Corporation
Limited and Sola Optical Holdings Pty.
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Ltd. on lines 34 and 35 of page 108, by deleting the phrase "Borrower and
Subsidiary Guarantor, as the case may be" on lines 36 and 37 of page 108 and
inserting in lieu thereof the word "Person", and by deleting the phrase "Each
Borrower and Subsidiary Guarantor" on line 37 of page 108 and inserting in lieu
thereof the phrase "The Company and each Subsidiary Guarantor".
Subsection 11.09(g) of the Existing Credit Agreement is
amended by deleting the references to Sola Optical Partners, Sola Corporation
Limited and Sola Optical Holdings Pty. Ltd. in clause (iii) on lines 21 through
23 of page 109.
Amendment to Section 11.10. Section 11.10 of the Existing Credit
Agreement shall be amended by inserting the following at the end thereof:
"The provisions of this Section 11.10 shall be binding upon each
Designated Lender to the same extent as if it were a Bank hereunder."
Amendments to Exhibits. The following schedules and exhibits to the
Existing Credit Agreement are revised to read as indicated in the revised
schedules and exhibits attached to this Amendment and new Exhibit L in the form
attached to this Amendment is added to the Credit Agreement:
Revised Schedule 2.01 Commitments
Revised Schedule 6.15 Subsidiaries
Revised Schedule 11.02 Lending Offices; Payment Offices;
Addresses for Notices
Revised Exhibit C Form of Compliance Certificate
Revised Exhibit F-2 Form of Tranche B Revolving Note.
Revised Exhibit G Form of Tranche A Extension Request
Revised Exhibit H Form of Joinder in Credit Agreement
Exhibit L Form of Designation Agreement
Fees. The Company shall pay to the Agent the fees described in
the letter from the Company to the Arranger dated October 2, 1997.
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to make the amendments provided for in
Article I, 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 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) both
immediately before and after giving effect to the provisions of this Amendment,
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 II shall constitute an immediate Event of
Default.
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CONDITIONS TO EFFECTIVENESS; EXPIRATION
Effective Date. This Amendment shall become effective on such date
(herein called the "Effective Date") when the conditions set forth in this
Section 3.1 have been satisfied.
Execution of Amendment. The Agent shall have received counterparts of
this Amendment duly executed and delivered on behalf of the Company, the Tranche
A Revolving Borrowers, the Subsidiary Guarantors and all of the Banks listed on
the signature pages hereof.
Resolutions. The Company shall have delivered to the Agent copies of
the resolutions of the Company's and each Subsidiary Guarantor's board of
directors authorizing the execution, delivery and performance of this Amendment,
certified as of the Effective Date by the Secretary or Assistant Secretary of
each such Person.
Organization Documents; Good Standing. The Company shall have
delivered to the Agent with copies for each of the Banks: (i) the articles or
certificate of incorporation and the by-laws of the Company and each Subsidiary
Guarantor as in effect on the Effective Date, certified by the Secretary of
State (or similar applicable Governmental Authority) of its jurisdiction of
incorporation as of a date reasonably near to the Effective Date as being true
and correct and by the Secretary or Assistant Secretary of the Company or each
such Subsidiary Guarantor, as the case may be, as being true and correct as of
the Effective Date; and (ii) a good standing and tax good standing certificate
for the Company and each Subsidiary Guarantor from the Secretary of State (or
similar applicable Governmental Authority) of its state or other jurisdiction of
incorporation and a good standing certificate in each jurisdiction where the
Company or each such Subsidiary Guarantor is qualified to do business as a
foreign corporation as of a recent date, together with a bring-down certificate
by facsimile, dated the Effective Date.
Certificate. The Agent and the Banks shall have received a
certificate signed by a Responsible Officer, dated as of the Effective Date, as
to matters set forth in Article II of this Amendment.
Notes. The Agent shall have received for Banque Nationale de Paris
and The Dai-Ichi Kangyo Bank, Limited, San Francisco Agency new Tranche B
Revolving Notes executed by the Company and reflecting to the satisfaction of
the Agent and the Banks the transactions hereby contemplated.
Legal Opinion. The Agent shall have received an opinion, dated as of
the Effective Date, of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel to the
Company, the Subsidiary Guarantors and the Tranche A Revolving Borrowers, and
addressed to the Agent and the Banks, substantially in the form of Exhibit A
hereto.
Banks' Fees. The Company shall have paid to the Agent for the account
of the Banks the participation fee described in the letter from the Company to
the Agent dated October 2, 1997.
Accrued Interest and Fees. The Company shall have paid to the Agent
for the account of the Banks all accrued and unpaid interest on Tranche B Loans
and Term Loans outstanding on the Effective Date and all accrued and unpaid
commitment fees and letter of credit fees payable by the Company in respect of
each Bank's Tranche B Revolving Commitment and L/C Commitment, calculated for
the period ending on the Effective Date.
Repayment of Certain Tranche B Revolving Loans. The Company shall
have repaid the Tranche B Revolving Loans made by Deutsche Bank AG Los Angeles
Branch and/or Cayman Islands Branch and The Long Term Credit Bank of Japan, Ltd.
outstanding on the Effective Date, together with accrued interest thereon.
-11-
Arranger Fee. The Company shall have paid to the Arranger the
arrangement fee described in the letter from the Company to the Arranger dated
October 2, 1997.
Expiration. If the Effective Date shall not have occurred on or prior
to November 15, 1997, the agreements of the parties contained in this Amendment
shall, unless otherwise agreed by the Banks, terminate effective immediately on
such date and without further action.
MISCELLANEOUS
Cross-References. References in this Amendment to any Article or
Section are, unless otherwise specified, to such Article or Section of this
Amendment.
Loan Document Pursuant to Credit Agreement. This Amendment 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 amendments set forth in
Article I, 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 or 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.
Counterparts. This Amendment 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.
Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
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
Amendment.
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, including allocated costs
of in-house counsel) incurred in connection with the execution and delivery of
this Amendment and the other agreements and documents entered into in connection
herewith.
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GOVERNING LAW; WAIVER OF JURY TRIAL; ENTIRE AGREEMENT. THIS AMENDMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. 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 AMENDMENT OR ANY AGREEMENT OR DOCUMENT
ENTERED INTO IN CONNECTION HEREWITH. THIS AMENDMENT 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers hereunto duly authorized as of the day and
year first above written.
BORROWERS:
----------
SOLA INTERNATIONAL INC.
By: _________________________________
Name:
Title:
SOLA IFSC
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:
-13-
SUBSIDIARY GUARANTOR:
---------------------
AMERICAN OPTICAL LENS COMPANY
By: _________________________________
Name:
Title:
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:
-00-
XXX XXXX XX XXXX XXXXXX, as Co-Agent
and as a Bank
By: _________________________________
Name:
Title:
BANKBOSTON N.A., as Co-Agent and as a
Bank
By: _________________________________
Name:
Title:
NATIONSBANK OF TEXAS N.A., as
Co-Agent and as a Bank
By: _________________________________
Name:
Title:
LASALLE NATIONAL BANK
By: _________________________________
Name:
Title:
SOCIETE GENERALE
By: _________________________________
Name:
Title:
-00-
XXXXXX XXXXXXX
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
Los Angeles Branch
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: _________________________________
Name:
Title:
BANQUE NATIONALE DE PARIS
By: _________________________________
Name:
Title:
-00-
XXX XXX-XXXX XXXXXX XXXX, XXXXXXX,
XXX XXXXXXXXX AGENCY
By: _________________________________
Name:
Title:
-17-