EXHIBIT 10.8
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement is made effective
as of this 30 day of November, 1998 by and between
BankBoston Retail Finance Inc. as Agent for the Lenders
party to a certain Loan and Security Agreement dated as of
April 28, 1998, as amended and in effect;
the Lenders party thereto; and
Sunglass Hut Trading Corporation (hereinafter, in such capacity, the
"Lead Borrower"), a Florida corporation with its principal executive
offices at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000, as agent
for
Said Sunglass Hut Trading Corporation; and Watch Station,
Inc., a Florida corporation with its principal executive
offices at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000
(individually, a "US Borrower" and collectively, the "US
Borrowers");
and
Sunglass Hut of Canada Ltd., an Ontario corporation with its principal
executive offices at 000 Xxxxxxxxx Xxxx., Xxxx #00, Xxxxxxxxxxx,
Xxxxxxx, Xxxxxx X0X 0XX (the "CAN Borrower"); and
Sunglass Hut International, Inc., a Florida corporation with its
principal executive offices at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxxxxxx 00000 (the "Parent")
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H:
WHEREAS, on April 28, 1998, the Agent, the Lenders, the Parent and the
Borrowers entered in a certain Loan and Security Agreement,(as amended and in
effect, the "Agreement"); and
WHEREAS, the Agent, the Lenders, the Parent and the Borrowers desire to
modify certain of the provisions of the Agreement as set forth herein.
NOW, THEREFORE, it is hereby agreed among the Agent, the Lenders, the
Parent and the Borrowers as follows:
1. CAPITALIZED TERMS. All capitalized terms used herein
and not otherwise defined shall have the same meaning
herein as in the Agreement.
2. AMENDMENTS TO ARTICLE 1. The provisions of Article 1 of the
Agreement are hereby amended as follows:
(a) by deleting the definition of "Base Margin" in its
entirety and substituting the following in its
stead:
"BASE MARGIN": 0 basis points.
(b) by deleting the definition of "Commitment" in its
entirety and substituting the following in its
stead:
"COMMITMENT": Subject to /section/2-22, as follows:
LENDER DOLLAR COMMITMENT
COMMITMENT PERCENTAGE
-----------------------------------------------------
BankBoston $35,000,000.00 43.75%
Retail Finance
Inc.
-----------------------------------------------------
LaSalle $20,000,000.00 25.0%
Business
Credit, Inc.
-----------------------------------------------------
Foothill $25,000,000.00 31.25%
Capital
Corporation
-----------------------------------------------------
(c) by deleting the definition of "LIBOR Margin" in
its entirety and substituting the following in its
stead:
"LIBOR MARGIN": 200 basis points.
(d) by deleting the definition of "Loan Ceiling" in
its entirety and substituting the following in its
stead:
"LOAN CEILING": Eighty Million U.S. Dollars
($80,000,000.00), subject to reduction in accordance
with the provisions of Section 2-9 hereof.
(e) by deleting the definition of "Maturity Date" in
its entirety and substituting the following in its
stead:
"MATURITY DATE": November 30, 2001.
(f) by adding the following new definition:
"BORROWING SUPPLEMENT": The following amounts for
the periods indicated:
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PERIOD BORROWING SUPPLEMENT
-------------------------------------------------
November 23, 1998 $15,000,000.00
through May 31, 1999
-------------------------------------------------
June 1, 1999 through $13,750,000.00
August 31, 1999
-------------------------------------------------
September 1, 1999 $12,500,000.00
through November 30,
1999
-------------------------------------------------
December 1, 1999 $11,250,000.00
through February 29,
2000
-------------------------------------------------
March 1, 2000 through $10,000,000.00
May 31, 2000
-------------------------------------------------
June 1, 2000 through $8,750,000.00
August 31, 2000
-------------------------------------------------
September 1, 2000 $7,500,000.00
through November 30,
2000
-------------------------------------------------
December 1, 2000 $6,250,000.00
through February 28,
2001
-------------------------------------------------
March 1, 2001 through $5,000,000.00
May 31, 2001
-------------------------------------------------
June 1, 2001 through $3,750,000.00
August 31, 2001
-------------------------------------------------
September 1, 2001 $2,500,000.00
through November 30,
2001
-------------------------------------------------
December 1, 2001 $1,250,000.00
through February 28,
2002
-------------------------------------------------
March 1, 2002 and $0
thereafter
-------------------------------------------------
3. AMENDMENTS TO ARTICLE 2. The provisions of Article 2 of the
Agreement are hereby amended as follows:
(a) by deleting the provisions of Section 2-1(b)(ii)(B)
in their entirety and substituting the following in
their stead:
(B) The Borrowing Supplement
(b) by deleting the number "$5,000,000.00" in Section
2-1(e) and substituting the number "$12,500,000.00"
in its stead.
(c) by adding the following new subparagraph to Section
2-5(a):
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(iii) No Revolving Credit Loan shall be made
if, after giving effect to the making of
such Revolving Credit Loan, the aggregate of
all outstanding Revolving Credit Loans would
exceed the amounts calculated under Section
2-1(b)(ii) (exclusive of any amounts
available under Section 2-1(b)(ii)(B)),
unless, after giving effect to the making of
such Revolving Credit Loan, the Borrower is
in then compliance with the financial
performance covenants set forth in Exhibit
5-12.
4. AMENDMENTS TO ARTICLE 4. The provisions of Article 4 of the
Agreement are hereby amended as follows:
(a) by deleting the words "10,000,000 shares" appearing
in Section 4-18(b) and substituting the words
"25,000,000 shares" in their stead.
(b) by deleting the words "the first anniversary of this
Agreement" appearing in the second line of Section
4-26(a) and substituting the words "November 30,
1999" in their stead.
5. AMENDMENTS TO ARTICLE 5. The provisions of Article 5 of the
Agreement are hereby amended by adding the following new
section:
5-12. FINANCIAL PERFORMANCE COVENANTS. The Borrowers
shall observe and comply with those financial
performance covenants set forth on EXHIBIT 5-12,
annexed hereto.
6. AMENDMENTS TO EXHIBITS. The Exhibits to the Agreement are
hereby amended by deleting EXHIBIT 1-2 in its entirety and by
adding EXHIBIT 5-12 thereto in the form annexed hereto.
7. RATIFICATION OF LOAN DOCUMENTS. Except as provided herein, all
terms and conditions of the Agreement and the other Loan
Documents remain in full force and effect. The Borrower hereby
ratifies, confirms, and reaffirms (i) all of the
representations, warranties and covenants therein contained
(except to the extent that such representations and warranties
expressly relate to an earlier date), and (ii) that all
Collateral secures all of the Liabilities, as modified hereby.
8. CONDITIONS TO EFFECTIVENESS. This First Amendment to Loan and
Security Agreement shall not be effective until each of the
following conditions precedent have been fulfilled to the
satisfaction of the Agents:
(a) This First Amendment to Loan and Security
Agreement shall have been duly executed and
delivered by the Borrowers, the Parent, the Agent
and such percentage of the Lenders as is required
to consent hereto under the terms of the Agency
Agreement. The Agent shall have received a fully
executed copy hereof and of each other document
required hereunder.
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(b) All action on the part of the Borrowers and the
Parent necessary for the valid execution, delivery
and performance by the Borrowers and the Parent of
this First Amendment to Loan and Security
Agreement shall have been duly and effectively
taken. The Agent shall have received from each of
the Borrowers and the Parent, a true copy of their
respective certificate of the resolutions adopted
by their respective board of directors authorizing
the transactions described herein, certified by
their respective secretaries as of a recent date
to be true and complete.
(c) The Borrowers shall have paid to the Agent, for the
ratable benefit of the Lenders an amendment fee in
the sum of $200,000.00.
(d) The Borrowers shall have executed and delivered to
the Agent an amendment to the Fee Letter on terms
reasonably satisfactory to the Agent and shall have
paid the Agent any amounts then due thereunder.
(e) The Borrower shall have paid to the Agent all fees
and expenses then due and owing pursuant to the Loan
and Security Agreement, as modified hereby,
including, without limitation, reasonable attorneys'
fees incurred by the Agent and each of the Lenders.
(f) The Agent shall have received an opinion of counsel
to the Obligors in form and substance satisfactory to
the Agent.
(g) No Suspension Event shall have occurred and be
continuing.
(h) The Borrower shall have provided such additional
instruments and documents to the Agent as the Agent
and its counsel may have reasonably requested.
9. MISCELLANEOUS.
(a) This First Amendment to Loan and Security Agreement
may be executed in several counterparts and by each
party on a separate counterpart, each of which when
so executed and delivered shall be an original, and
all of which together shall constitute one
instrument.
(b) This First Amendment to Loan and Security Agreement
expresses the entire understanding of the parties
with respect to the transactions contemplated hereby.
No prior negotiations or discussions shall limit,
modify, or otherwise affect the provisions hereof.
(c) Any determination that any provision of this First
Amendment to Loan and Security Agreement or any
application hereof is invalid, illegal or
unenforceable in any respect and in any instance
shall not effect the validity, legality, or
enforceability of such provision
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in any other instance, or the validity, legality or
enforceability of any other provisions of this First
Amendment to Loan and Security Agreement.
(d) The Borrowers shall pay on demand all costs and
expenses of the Agent and each of the Lenders,
including, without limitation, reasonable attorneys'
fees in connection with the preparation, negotiation,
execution and delivery of this First Amendment to
Loan and Security Agreement.
(e) The Borrowers and the Parent each warrant and
represent that the Borrowers and the Parent each have
consulted with independent legal counsel of their
selection in connection with this First Amendment to
Loan and Security Agreement and are not relying on
any representations or warranties of the Agent or any
Lender or their respective counsel in entering into
this First Amendment.
IN WITNESS WHEREOF, the parties have hereunto caused this First
Amendment to Loan and Security Agreement to be executed and their seals to be
hereto affixed as of the date first above written.
"AGENT"
BANKBOSTON RETAIL FINANCE INC.
By:__________________________
Name:________________________
Title:_______________________
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"LENDERS"
BANKBOSTON RETAIL FINANCE INC.
By:__________________________
Name:________________________
Title:_______________________
LASALLE BUSINESS CREDIT, INC.
By:__________________________
Name:________________________
Title:_______________________
FOOTHILL CAPITAL CORPORATION
By:__________________________
Name:________________________
Title:_______________________
"LEAD BORROWER"
SUNGLASS HUT TRADING
CORPORATION
By:__________________________
Name:________________________
Title:_______________________
"BORROWERS"
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SUNGLASS HUT TRADING
CORPORATION
By:__________________________
Name:________________________
Title:_______________________
WATCH STATION, INC.
By:__________________________
Name:________________________
Title:_______________________
SUNGLASS HUT OF CANADA LTD.
By:__________________________
Name:________________________
Title:_______________________
"PARENT"
SUNGLASS HUT INTERNATIONAL,
INC.
By:__________________________
Name:________________________
Title:_______________________
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