1
EXHIBIT 10.1
SEVENTH AMENDMENT TO FIRST AMENDED
AND RESTATED CREDIT AGREEMENT
This seventh amendment to first amended and restated credit agreement
("Amendment") is made and entered into as of April 30, 1998, by and between U.
S. BANK NATIONAL ASSOCIATION, successor by merger to U. S. Bank of Washington,
National Association ("U. S. Bank"), and GARGOYLES, INC., a Washington
corporation ("Borrower").
R E C I T A L S:
A. On or about April 7, 1997, U. S. Bank and Borrower entered into that
certain first amended and restated credit agreement (together with all
amendments, supplements, exhibits, and modifications thereto, the "Credit
Agreement") whereby U. S. Bank agreed to extend certain credit facilities to
Borrower. U. S. Bank and Borrower have entered into six previous amendments to
the Credit Agreement.
B. The purpose of this Amendment is to set forth the terms and
conditions upon which U. S. Bank will grant Borrower's request to defer the
filing of a registration statement with respect to the shares of stock of
Borrower issued to U. S. Bank pursuant to that certain Third Amendment to First
Amended and Restated Credit Agreement dated as of January 15, 1998, and entered
into between U. S. Bank and Borrower (the "Third Amendment").
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth herein, the parties agree as follows:
ARTICLE I. AMENDMENT; DEFINITIONS
1.1 AMENDMENT
The Credit Agreement and each of the other Loan Documents are hereby
amended as set forth herein. Except as specifically provided for herein, all of
the terms and conditions of the Credit Agreement and each of the other Loan
Documents shall remain in full force and effect throughout the terms of the
Loans, as well as any extensions or renewals thereof.
SEVENTH AMENDMENT TO FIRST AMENDED
AND RESTATED CREDIT AGREEMENT PAGE 1
2
1.2 DEFINITIONS
As used herein, capitalized terms shall have the meanings given to them
in the Credit Agreement, except as otherwise defined herein, or as the context
otherwise requires.
ARTICLE II. REGISTRATION OF SHARES
2.1 TIMING OF REGISTRATION
The first sentence of Section 7.2(a) of the Third Amendment is hereby
deleted in its entirety and replaced with the following:
Borrower shall take all steps necessary to complete and file a
registration statement for the registration of the Shares on or before
November 15, 1998, and shall use its best efforts to cause the
registration to become effective as soon after the filing of the
registration statement as possible.
2.2 EXPENSES OF REGISTRATION
Section 7.3 of the Third Amendment is deleted in its entirety and
replaced with the following:
Borrower shall bear and pay all expenses incurred in connection
with any registration, filing or qualification of the Shares, including,
without limitation, all registration, filing and qualification fees,
printing and accounting fees, and the fees and disbursements of counsel
for Borrower.
ARTICLE III. CONDITIONS PRECEDENT
The modifications set forth in this Amendment shall not be effective
unless and until the following conditions have been fulfilled to U. S. Bank's
satisfaction:
(a) U. S. Bank shall have received this Amendment, duly executed and
delivered by Borrower, H.S.C., Inc., Sungold Eyewear, Inc. and Private Eyes
Sunglass Corporation.
(b) After having given effect to any waivers and modifications of
definitions set forth in this Amendment, there shall not exist any Default or
Event of Default.
SEVENTH AMENDMENT TO FIRST AMENDED
AND RESTATED CREDIT AGREEMENT PAGE 2
3
(c) All representations and warranties of Borrower contained in the
Credit Agreement or otherwise made in writing in connection therewith or
herewith shall be true and correct and in all material respects have the same
effect as though such representations and warranties had been made on and as of
the date of this Amendment.
(d) U. S. Bank shall have received a certified resolution of the board
of directors of Borrower and each of the undersigned guarantors in a form
acceptable to U.
S. Bank.
ARTICLE IV. GENERAL PROVISIONS
4.1 REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to U. S. Bank that as of the
date of this Amendment and after having given effect to any waivers and
modifications to definitions set forth in this Amendment, there exists no
Default or Event of Default. All representations and warranties of Borrower
contained in the Credit Agreement and the Loan Documents, or otherwise made in
writing in connection therewith, are true and correct as of the date of this
Amendment. Borrower acknowledges and agrees that all of Borrower's Indebtedness
to U. S. Bank is payable without offset, defense, or counterclaim.
4.2 SECURITY
All Loan Documents evidencing U. S. Bank's security interest in the
Collateral shall remain in full force and effect, and shall continue to secure,
without change in priority, the payment and performance of the Loans, as amended
herein, and any other Indebtedness owing from Borrower to U. S. Bank.
4.3 GUARANTIES
The parties hereto agree that the Guaranties shall remain in full force
and effect and continue to guarantee the repayment of the Loans to U. S. Bank as
set forth in such Guaranties.
4.4 PAYMENT OF EXPENSES
Borrower shall pay on demand all costs and expenses of U. S. Bank
incurred in connection with the preparation, negotiation, execution and delivery
of this Amendment and the exhibits hereto, including, without limitation,
attorneys' fees incurred by U. S. Bank.
SEVENTH AMENDMENT TO FIRST AMENDED
AND RESTATED CREDIT AGREEMENT PAGE 3
4
4.5 SURVIVAL OF CREDIT AGREEMENT
The terms and conditions of the Credit Agreement and each of the other
Loan Documents shall survive until all of Borrower's obligations under the
Credit Agreement have been satisfied in full.
4.6 RELEASE OF CLAIMS
IN CONSIDERATION FOR U. S. BANK'S AGREEMENT TO ENTER INTO THIS
AMENDMENT, BORROWER, H.S.C., INC., SUNGOLD EYEWEAR, INC., AND PRIVATE EYES
SUNGLASS CORPORATION EACH HEREBY RELEASES AND FOREVER DISCHARGES U. S. BANK, ITS
PREDECESSORS AND SUCCESSORS-IN-INTEREST, AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS FROM ANY AND ALL CLAIMS,
DEMANDS, DAMAGES, LIABILITIES, CHARGES, ACTIONS, LOSSES, CAUSES OF ACTION,
COSTS, EXPENSES, COMPENSATION, AND SUITS OF ANY KIND, PAST, PRESENT OR FUTURE,
ARISING FROM OR ALLEGED TO ARISE FROM THEIR BUSINESS RELATIONSHIP, INCLUDING THE
RELATIONSHIP PROVIDED FOR IN THE CREDIT AGREEMENT THROUGH THE DATE OF THIS
AMENDMENT, WHETHER KNOWN OR UNKNOWN. THIS RELEASE IS INTENDED TO BE COMPLETE AND
COMPREHENSIVE WITH RESPECT TO ALL SUCH CLAIMS. THIS RELEASE OF CLAIMS HAS BEEN
COMPLETELY READ AND FULLY UNDERSTOOD AND VOLUNTARILY ACCEPTED FOR THE PURPOSE OF
MAKING A FULL AND FINAL COMPROMISE AND SETTLEMENT WITH RESPECT TO ALL CLAIMS,
DISPUTED OR OTHERWISE.
4.7 COUNTERPARTS
This Amendment may be executed in one or more counterparts, each of
which shall constitute an original agreement, but all of which together shall
constitute one and the same agreement.
4.8 STATUTORY NOTICE
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
SEVENTH AMENDMENT TO FIRST AMENDED
AND RESTATED CREDIT AGREEMENT PAGE 4
5
IN WITNESS WHEREOF, U. S. Bank and Borrower have caused this Amendment
to be duly executed by their respective duly authorized signatories as of the
date first above written.
GARGOYLES, INC., a Washington corporation
By: /s/ XXX XXXXXXXXXXX
----------------------
Xxx Xxxxxxxxxxx, CEO and CFO
U. S. BANK NATIONAL ASSOCIATION
XXXXX X. XXXXXX
By: /s/ XXXXX X. XXXXXX
----------------------
Xxxxx X. Xxxxxx, Vice President
SEVENTH AMENDMENT TO FIRST AMENDED
AND RESTATED CREDIT AGREEMENT PAGE 5
6
Each of the undersigned Guarantors hereby (i) reaffirms its Guaranty and its
Security Agreement, (ii) agrees that its Guaranty guarantees the repayment of
the Loans, as amended herein, (iii) agrees that its respective Security
Agreement and related collateral documents secures the payment and performance
of the Secured Obligations described in such Security Agreement, (iv)
acknowledges that its obligations pursuant to its Guaranty and Security
Agreement are enforceable without defense, offset, or counterclaim, and (v)
agrees to the release of claims set forth in Section 4.6 of this Amendment.
H.S.C., Inc., a Washington corporation
By: /s/ XXX XXXXXXXXXXX
-------------------------
Xxx Xxxxxxxxxxx, President and CFO
SUNGOLD EYEWEAR, INC., a Washington
corporation
By: /s/ XXX XXXXXXXXXXX
-------------------------
Xxx Xxxxxxxxxxx, CEO and CFO
PRIVATE EYES SUNGLASS CORPORATION,
a Washington corporation
By: /s/ XXX XXXXXXXXXXX
-------------------------
Xxx Xxxxxxxxxxx, President and CFO
SEVENTH AMENDMENT TO FIRST AMENDED
AND RESTATED CREDIT AGREEMENT PAGE 6
