EXHIBIT 10.1
AMENDMENT NO. 3
TO
MULTICURRENCY CREDIT AGREEMENT
THIS AMENDMENT NO. 3, DATED AS OF MARCH 4, 1998, TO MULTICURRENCY CREDIT
AGREEMENT, DATED AS OF JUNE 14, 1996, AS AMENDED (this "Amendment"), among Sola
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International, Inc., a Delaware corporation (the "Company"), Sola IFSC, an Irish
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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, America 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"
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and collectively as the "Tranche A Revolving Borrowers", the several financial
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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
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individually a "Bank"), and Bank of America National Trust and Savings
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Association, as agent (in such capacity, the "Agent") for the Banks.
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RECITALS
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A. The Company, the Tranche A Revolving Borrowers, American Optical
Lens Company, a Delaware corporation (the "Released Subsidiary Guarantor"), the
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Banks, the Co-Agents and the Agent are parties to a Multicurrency Credit
Agreement, dated as of June 14, 1996, as amended by Amendment No. 1, dated as of
March 31, 1997, and as further amended by Amendment No. 2, dated as of November
5, 1997 (as so amended, the "Existing Credit Agreement").
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B. The Company, the Tranche A Revolving Borrowers and the Released
Subsidiary Guarantor have requested that the Banks amend the Existing Credit
Agreement and release the Released Subsidiary Guarantor from its obligations
thereunder, each as herein provided.
C. The Banks are willing to amend the Existing Credit Agreement and
release the Released Subsidiary Guarantor from its obligations thereunder,
subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
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1. Amendments to Credit Agreement. Effective on (and subject to the
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occurrence of) the Effective Date (as herein defined), the Existing Credit
Agreement is amended as follows (the Existing Credit Agreement as so amended is
herein referred to as the "Amended Credit Agreement"):
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The preamble of the Existing Credit Agreement is amended by
deleting the phrase "the Persons named on the signature pages hereof as
Subsidiary Guarantors or from time to time added as parties hereto pursuant to
Section 7.13 (each a "Subsidiary Guarantor" and collectively the "Subsidiary
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Guarantors")," which appears on lines 18 through 20 of page 1 of the Existing
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Credit.
(b) The definition of Domestic Obligations in Article I of the
Existing Credit Agreement is amended by deleting the words "and each Domestic
Subsidiary Guarantor".
(c) The definition of Domestic Subsidiary Guarantor in Article I of
the Existing Credit Agreement is deleted in its entirety.
(d) The definition of Obligations in Article I of the Existing Credit
Agreement is amended by deleting the words "or Subsidiary Guarantor".
(e) The definition of Subsidiary Guarantor in Article I of the
Existing Credit Agreement is deleted in its entirety.
(f) Section 6.01 of the Existing Credit Agreement is amended by
deleting the phrase ", the Subsidiary Guarantors".
(g) Section 6.02 of the Existing Credit Agreement is amended by
deleting the words "and Subsidiary Guarantor", the words "or Subsidiary
Guarantor's", and the words "or Subsidiary Guarantor" in each place where they
appear in such Section.
(h) Section 6.03 of the Existing Credit Agreement is amended by
deleting the words "or Subsidiary Guarantor".
(i) Section 6.04 of the Existing Credit Agreement is amended by
deleting the words "or Subsidiary Guarantor" and "and Subsidiary Guarantor" in
each place where they appear in such Section.
(j) Section 6.06 of the Existing Credit Agreement is amended by
deleting the words "or Subsidiary Guarantor".
(k) Section 7.13 of the Existing Credit Agreement is amended by
deleting the first two sentences thereof, and by deleting the words "In
addition" at the beginning of the third sentence thereof.
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(l) Subsection 9.01(j) of the Existing Credit Agreement is amended in
its entirety to read as follows:
(j) Guarantor Defaults. The Company fails in any material respect
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to perform or observe any term contained in Section 11.09; or Section
11.09 is for any reason partially (including with respect to future
advances) or wholly revoked or invalidated, or otherwise ceases to be
in full force and effect, or the Company contests in any manner the
validity or enforceability thereof or the Company denies that it has
any further liability or obligations thereunder; or
(m) Section 11.01 of the Existing Credit Agreement is amended by
deleting the words "or Subsidiary Guarantor" at line 28 of page 100; by deleting
the comma before the words "the Borrowers" at line 30 and line 33 of page 100
and inserting the word "and" in lieu thereof; by deleting the words "and the
Subsidiary Guarantors" at line 30 and line 33 of page 100; and by deleting
subsection 11.01(e) in its entirety.
(n) Section 11.02 of the Existing Credit Agreement is amended by
deleting the words "or Subsidiary Guarantor" and "Subsidiary Guarantor".
(o) Section 11.06 of the Existing Credit Agreement is amended by
deleting the words "or Subsidiary Guarantor".
(p) Section 11.09 of the Existing Credit Agreement is amended in its
entirety to read as follows:
11.09 Guaranty of the Company.
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(a) Guaranty. The Company makes the following guarantee:
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The Company unconditionally and irrevocably guarantees the full and
prompt payment when due, whether at stated maturity, by acceleration or
otherwise (including, without limitation, all amounts which would have
become due but for the operation of the automatic stay under Section 362(a)
of the Bankruptcy Code or other comparable law) of all the Obligations,
whether for principal, interest, fees, expenses or otherwise, and including
any and all costs and expenses (including reasonable Attorney Costs)
incurred by the Agent, any Bank or any Indemnified Person in enforcing any
of their respective rights with respect thereto. The foregoing guaranty
constitutes a guaranty of payment when due and not merely of collection,
and the Company specifically agrees that it shall not be necessary or
required for the Agent, any Bank or any Indemnified Person to exercise any
right, assert any claim or demand or enforce any remedy whatsoever against
any Borrower or any other Person before or as a condition to the
obligations of the Company hereunder.
(b) Acceleration of Guarantee. The Company agrees that (i) in
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the event of any Insolvency Proceeding affecting any Borrower or (ii) upon
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notice of acceleration of the Obligations from the Agent pursuant to
Section 9.02, and if any such event shall occur at a time when any of the
Obligations may not then be due and payable, the Company will pay pursuant
to subsection (a) of this Section 11.09 to the Agent (on behalf of the
Banks) forthwith the full amount which would be payable hereunder by the
Company if all the Obligations were then due and payable.
(c) Guarantee Absolute. The guaranty pursuant to this Section
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11.09 is a continuing, absolute, unconditional and irrevocable guaranty of
payment and shall remain in full force and effect until (A) all the
Obligations guaranteed by the Company have been indefeasibly paid in full
in cash and (B) all related Commitments shall have permanently terminated.
The Company guarantees that the Obligations guaranteed by it will be paid
strictly in accordance with the terms of this Agreement, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or any of the Banks
with respect thereto. The liability of the Company under this Section
11.09 shall be absolute and unconditional irrespective of:
(i) any lack of validity, legality or enforceability of this
Agreement, the Notes, any other Loan Document or any other agreement
or instrument relating to any thereof;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any compromise,
renewal, extension, acceleration or release with respect thereto, or
any other amendment or waiver of or any consent to departure from this
Agreement, the Notes or any other Loan Document;
(iii) any addition, exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Obligations;
(iv) the failure of the Agent or any Bank:
(A) to assert any claim or demand or to enforce any
right or remedy against any Borrower or any other Person under
the provisions of this Agreement, any Note, any other Loan
Document or otherwise;
(B) to exercise any right or remedy against any other
guarantor of, or collateral securing, any of the Obligations; or
(C) to disclose to the Company any matter relating to
the business, operation or condition of any Borrower or any
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other matter relating to any of their financial condition or
otherwise;
(v) any amendment to, rescission, waiver or other
modification of, or any consent to departure from, any of the terms of
this Agreement, any Note or any other Loan Document;
(vi) any defense, set-off or counter-claim which may at any
time be available to or be asserted by any Borrower against any other
Borrower, the Agent or any Bank;
(vii) any reduction, limitation, impairment or termination
of the Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject
to (and the Company hereby waives any right to or claim of) any
defense or setoff, conterclaim, recoupment or termination whatsoever
by reason of the ivalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, the Obligations or otherwise; or
(viii) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge
of, the Company
(d) Reinstatement, etc. The Company agrees that its guaranty
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hereunder shall continue to be effective or be reinstated, as the case may
be, if at any time any payment (in whole or in part) of any of the
Obligations guaranteed by the Company is rescinded or must otherwise be
restored by the Agent or any Bank as a result of any Insolvency Proceeding
affecting any Borrower or otherwise, all as though such payment had not
been made.
(e) Waiver of Diligence, etc. The Company hereby waives
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promptness, diligence, notice of acceptance and any other notice with
respect to any of the Obligations guaranteed by the Company and this
guaranty and any requirement that the Agent or any Bank protect, secure,
perfect or insure any Lien or any property subject thereto or exhaust any
right or take any action against any Borrower or any other Person.
(f) Waiver of Subrogation. The Company hereby irrevocably
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waives any claim or other rights which it may now or hereafter acquire
against any Borrower that arises from the existence, payment, performance
or enforcement of its obligations under its guaranty hereunder, including
any right of subrogation, reimbursement, exoneration or indemnification,
any right to participate in any claim or remedy of the Agent or any Bank
against any Borrower which the Agent or any Bank now has or hereafter
acquires (whether or not such claim, remedy or right arises in equity,
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or under contract, statute or common law), including the right to take or
receive from any Borrower, directly or indirectly, in cash or other
property or by set-off or in any manner, payment or security on account of
such claim or other rights. If any amount shall be paid to the Company in
violation of the preceding sentence and the Obligations guaranteed by the
Company shall not have been indefeasibly paid in cash in full and all the
related Commitments have not been permanently terminated, such amount shall
forthwith be paid to the Agent on behalf of the Banks by the Company, to be
credited and applied against such Obligations, whether matured or
unmatured, and (except in the case of property of Sola International
Holdings Ltd. or property of the Company situated in Australia) until such
payment shall be deemed to have been paid to the Company, for the benefit
of, and held in trust for, the Banks. The Company acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Agreement and that the waiver set forth in this
Section is knowingly made in contemplation of such benefits.
(g) Intercompany Subordinated Indebtedness. Each Borrower
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agrees that the payment of the principal of, or interest on, any
Indebtedness or other amounts owing to it by any Borrower (the
"Intercompany Subordinated Indebtedness") is hereby expressly subordinated,
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to the extent and in the manner hereinafter set forth, to the prior payment
in full in cash of all the Obligations:
(i) Upon the maturity of any Obligations, whether at stated
maturity, by acceleration or otherwise, such Obligations shall first
be paid in full in cash and all the Commitments shall have been
permanently terminated before any payment (whether in cash, property,
securities or otherwise) is made by any Borrower on account of the
Intercompany Subordinated Indebtedness;
(ii) If any Default or Event of Default is in existence no
Borrower shall, directly or indirectly, make any payment of any
Intercompany Subordinated Indebtedness until all the Obligations have
been paid in full in cash and all the Commitments have been
permanently terminated. Each Borrower hereby agrees that, so long as
any such Default or Event of Default exists, it will not ▇▇▇ for, or
otherwise take any action to enforce any Borrower's obligations to
pay, any amounts owing in respect of any Intercompany Subordinated
Indebtedness.
(iii) In the event that notwithstanding the provisions of
the preceding subsections (i) and (ii), a Borrower shall make any
payment on account of any Intercompany Subordinated Indebtedness at a
time when payment is not permitted by said subsection (i) or (ii),
such payment shall be paid forthwith over and delivered to, the Agent,
if paid by the Company, or the Tranche A Revolving Bank, if paid by
any other Borrower, for application to the payment in full in cash of
all the
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Domestic Obligations and Foreign Obligations, as the case may
be and (except in the case of payments by Sola International Holdings
Ltd.) shall be held by such Borrower in trust for the benefit of the
Agent, if paid by the Company, or the Tranche A Revolving Bank, if
paid by any other Borrower; and
(iv) In the event any Borrower is subject to any Insolvency
Proceeding, any payment or distributions of assets of such Borrower of
any kind or character, whether in cash, property or securities to
which any Borrower would be entitled except for the provisions of this
subsection, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution directly to the Agent, with
respect to payments or distributions on behalf of the Company, or the
Tranche A Revolving Bank, with respect to payments or distributions on
behalf of any other Borrower, for application to the payment in full
in cash of all the Domestic Obligations and Foreign Obligations, as
the case may be.
The terms of this subsection (g) are continuing, absolute,
unconditional and irrevocable, and shall remain in full force and effect
notwithstanding the occurrence of any of the events described in subsection
(c) of this Section.
(q) Section 11.11 of the Existing Credit Agreement is amended by
deleting the words "or Subsidiary Guarantor", "and Subsidiary Guarantors", and
"or Foreign Subsidiary Guarantor" in each place where they appear in such
Section.
(r) Section 11.16 and Section 11.17 of the Existing Credit Agreement
are each amended by deleting the words "AND SUBSIDIARY GUARANTOR" in each place
where they appear in such Section.
(s) Section 7.14 and Section 11.20 of the Existing Credit Agreement
are each deleted in their entirety.
(t) Exhibit H to the Existing Credit Agreement is amended in its
entirety to read as indicated in the form of revised Exhibit H attached hereto.
2. Release of Released Subsidiary Guarantor. The Released Subsidiary
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Guarantor shall, effective on (and subject to the occurrence of) the Effective
Date, be released from its obligations under the Existing Credit Agreement and
any other Loan Document and shall no longer be a party thereto. In addition, it
is hereby confirmed that all Persons that formerly constituted Foreign
Subsidiary Guarantors pursuant to the original terms of the Existing Credit
Agreement or a Joinder thereto have been previously released from all
obligations thereunder.
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3. Representations and Warranties. In order to induce the Banks to make
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the amendments provided for in Section 1, each of the Company and the Tranche A
Revolving Borrowers hereby (a) represents and warrants to the Agent and the
Banks 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 immediately
after giving effect to the provisions of this Amendment, no Default or Event of
Default has occurred and is continuing, and (iii) each of the Company and the
Tranche A Revolving Borrowers is entering into this Amendment on the basis of
its own investigation and for its own reasons, without reliance upon the Agent
and the Banks or any other Person, and (b) agrees that the incorrectness in any
material respect of any representation and warranty contained in this Section 3
shall constitute an immediate Event of Default.
4. Effective Date. This Amendment will become effective as of the date
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(the "Effective Date") that the Agent has received from the Company, each of the
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Tranche A Revolving Borrowers and each of the Banks a duly executed original
(or, if elected by the Agent, an executed facsimile copy) of this Amendment.
5. Miscellaneous.
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(a) References in this Amendment to any Section are, unless otherwise
specified, to such Section of this Amendment.
(b) 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 hereby, all
of the representations, 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
herein 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 or the Tranche A Revolving Borrowers which would require the
consent of any of the Banks under the Existing Credit Agreement, the Amended
Credit Agreement or any other Loan Document.
(c) This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Bank, the
Company or a Tranche A Revolving Borrower shall bind such Person, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile
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transmitted executed original of such document of the party whose hard copy page
was not received by the Agent.
(d) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns.
(e) The Company and the Tranche A Revolving Borrowers 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.
(f) The Company and the Tranche A Revolving Borrowers 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.
(g) 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
BORROWERS:
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SOLA INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Attorney in Fact
SOLA IFSC
SOLA INTERNATIONAL HOLDINGS LTD.
(ACN007719708)
SOLA OPTICAL HOLDINGS (U.K.) LIMITED
SOLA OPTICAL ▇.▇.
▇▇▇▇ 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: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Attorney in Fact
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Issuing Bank and as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
THE BANK OF NOVA SCOTIA, as Co-Agent and as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Relationship Manager
BANKBOSTON N.A., as Co-Agent and as a Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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NATIONSBANK OF TEXAS N.A., as Co-Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LASALLE NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANQUE PARIBAS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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COMMERZBANK AKTIENGESELLSCHAFT,
Los Angeles Branch
By: /s/ Christian Jagenberg
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Name: Christian Jagenberg
Title: SVP and Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP
BANQUE NATIONALE DE PARIS
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
SAN FRANCISCO AGENCY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Manager & Agent
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