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Exhibit 10.1.4
FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY
AGREEMENT (this "Agreement") is made as of the 14th day of August, 2000, by and
among
AAi.FOSTERGRANT, INC. (formerly known as Accessories Associates, Inc.), a
corporation organized and existing under the laws of the State of Rhode Island
(the "Borrower");
▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, L.P., a limited partnership organized under the laws of
the State of Delaware ("▇▇▇▇▇▇ ▇▇▇▇▇") and FANTASMA, LLC, a limited liability
company organized under the laws of the State of Delaware ("Fantasma");
F.G.G. INVESTMENTS, INC., a corporation organized and existing under the
laws of the State of Delaware, THE ▇▇▇▇▇▇▇ COMPANY, a corporation organized and
existing under the laws of the State of Texas, ▇▇▇▇▇▇▇ HOLDINGS, INC., a
corporation organized and existing under the laws of the State of Delaware,
▇▇▇▇▇▇▇ GENERAL, INC., a corporation organized and existing under the laws of
the State of Delaware, ▇▇▇▇▇▇ ▇▇▇▇▇ HOLDINGS, INC., a corporation organized and
existing under the laws of the State of Delaware, and O-RAY HOLDINGS, INC., a
corporation organized and existing under the laws of the State of Delaware (the
"Corporate Guarantors"; the Corporate Guarantors together with ▇▇▇▇▇▇ ▇▇▇▇▇ and
Fantasma, the "Guarantors"; and the Guarantors together with the Borrower, the
"Obligors");
BANK OF AMERICA, N.A., a national banking association ("Bank of America"),
formerly NationsBank, N.A., and each other financial institution which is party
to the Financing Agreement (as that term is defined below) from time to time
(collectively, the "Lenders" and individually, a "Lender"); and
BANK OF AMERICA, N.A., a national banking association(the "Agent"),
formerly NationsBank, N.A., in its capacity as both collateral and
administrative agent for each of the Lenders.
RECITALS
A. The Borrower, the Guarantors, the Lenders and the Agent entered into a
Second Amended and Restated Financing and Security Agreement dated July 21, 1998
(as amended by that certain First Amendment to Second Amended and Restated
Financing and Security Agreement dated as of May 7, 1999, Second Amendment to
Second Amended and Restated Financing and Security Agreement dated as of March
24, 2000, Third Amendment to Second Amended and Restated Financing and Security
Agreement dated as of June 12, 2000 (the "Third Amendment", and as further
amended, restated, modified, substituted, extended, and renewed from time to
time, the "Financing Agreement"). The Financing Agreement provides for some of
the agreements among the Borrower, the Guarantors, the Lenders and the Agent
with respect to the "Loan" (as defined in the Financing Agreement), including
the Revolving Credit Facility (as
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that term is defined in the Financing Agreement) in an amount not to exceed
$60,000,000 and the Letter of Credit Facility which is part of the Revolving
Credit Facility.
B. The Borrower has requested that the Agent and Lenders modify the SNR
Facility (as that term is defined in the Financing Agreement).
C. The Agent and Lenders are willing to agree to the Borrower's request
on the condition, among others, that this Agreement be executed.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Borrower,
the Guarantors, the Lenders and Agent agree as follows:
1. The Obligors, the Lenders and the Agent agree that the Recitals above
are a part of this Agreement. Unless otherwise expressly defined in this
Agreement, terms defined in the Financing Agreement shall have the same meaning
under this Agreement.
2. The Obligors, the Lenders and Agent agree that the aggregate
outstanding principal balance under the Revolving Credit Note (subject to change
for returned items and other adjustments made in the ordinary course of
business) as of the close of the business day of August 11, 2000 is
$24,546,674.32 and under the SNR Note as of the open of business on the date of
this Agreement is $2,750,000.
3. Each of the Borrower, ▇▇▇▇▇▇ ▇▇▇▇▇ and Fantasma represents and
warrants to the Lenders and Agent as follows:
(a) The Borrower is a corporation duly organized, and validly
existing and in good standing under the laws of the state in which it was
organized and is duly qualified to do business as a foreign corporation in good
standing in every other state wherein the conduct of its business or the
ownership of its property requires such qualification.
(b) ▇▇▇▇▇▇ ▇▇▇▇▇ is a limited partnership duly organized, validly
existing and in good standing under the laws of the state in which it was
organized and is duly qualified to do business as a foreign limited partnership
in every other state wherein the conduct of its business or the ownership of its
property requires such qualification.
(c) Fantasma is a limited liability company duly organized, validly
existing and in good standing under the laws of the state in which it was
organized and is duly qualified to do business as a foreign limited partnership
in every other state wherein the conduct of its business or the ownership of its
property requires such qualification.
(d) Each of the Borrower, ▇▇▇▇▇▇ ▇▇▇▇▇ and Fantasma has the power and
authority to execute and deliver this Agreement and perform its obligations
hereunder and has taken all necessary and appropriate corporate, partnership or
limited liability company action, as applicable, to authorize the execution,
delivery and performance of this Agreement.
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(e) The Financing Agreement, as amended by this Agreement, and each
of the other Financing Documents remains in full force and effect, and each
constitutes the valid and legally binding obligation of the Borrower, ▇▇▇▇▇▇
▇▇▇▇▇ and Fantasma, enforceable in accordance with its terms.
(f) All of the Borrower's, ▇▇▇▇▇▇ ▇▇▇▇▇'▇ and Fantasma's
representations and warranties contained in the Financing Agreement and the
other Financing Documents are true and correct on and as of the date of the
Borrower's, ▇▇▇▇▇▇ ▇▇▇▇▇'▇ and Fantasma's execution of this Agreement.
(g) No Event of Default and no event which, with notice, lapse of
time or both would constitute an Event of Default, has occurred and is
continuing under the Financing Agreement or the other Financing Documents which
has not been waived in writing by the Lenders and Agent.
4. The Financing Agreement is hereby amended as follows:
(h) Section 1.1 of the Financing Agreement is hereby amended by
changing certain existing definitions in their entirety and adding certain new
definitions as follows:
"EBITDA" MEANS FOR ANY PERIOD, THE CONSOLIDATED NET INCOME OF THE
BORROWER AND ITS SUBSIDIARIES FOR SUCH PERIOD AFTER ALL EXPENSES EXCEPT
DEPRECIATION, INTEREST, AMORTIZATION, TAXES AND, FOR THE FISCAL YEAR 2000
ONLY, EXECUTIVE SEVERANCE EXPENSES NOT TO EXCEED THE AGGREGATE AMOUNT OF
$2,500,000, EXCLUDING, HOWEVER, AN AMOUNT EQUAL TO CASH SEVERANCE PAYMENTS
FOR EXECUTIVES WHO HAVE NOT BEEN REPLACED.
"SNR COMMITMENT PERIOD" MEANS THE PERIOD OF TIME FROM THE SNR CLOSING
DATE TO DECEMBER 31, 2000.
"SNR PARTICIPANT" MEANS THE EACH OF THE FOLLOWING ENTITIES AND ITS AND
ITS SUCCESSORS AND "SNR PARTICIPANTS" THE COLLECTIVE REFERENCE TO ALL OF
FOLLOWING ENTITIES :
WESTON PRESIDIO CAPITAL II, L.P., A DELAWARE LIMITED PARTNERSHIP
BANCBOSTON VENTURES, INC., A DELAWARE CORPORATION
ST. ▇▇▇▇ VENTURE CAPITAL V, LLC, A DELAWARE LIMITED LIABILITY
COMPANY
NATIONAL CITY CAPITAL CORPORATION, A DELAWARE CORPORATION
▇▇▇▇▇▇ CAPITAL, L.P., A DELAWARE LIMITED PARTNERSHIP
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"SNR PARTICIPATION AGREEMENT" MEANS EACH NOTE PARTICIPATION AGREEMENT
DATED AS OF AUGUST 14, 2000, ONE EACH FROM EACH SNR PARTICIPANT, SEVERALLY,
IN FAVOR OF THE AGENT AND THE SNR LENDERS, AS AMENDED, MODIFIED, RESTATED,
SUBSTITUTED, EXTENDED AND RENEWED FROM TIME TO TIME, WITH RESPECT TO THE
SENIOR NOTE REDEMPTION SUBFACILITY; AND "SNR PARTICIPATION AGREEMENTS"
MEANS THE COLLECTIVE REFERENCE TO ALL PARTICIPATION AGREEMENTS INCLUDED IN
THE TERM "SNR PARTICIPATION AGREEMENT." THE "MAXIMUM INVESTMENT" (AS
DEFINED RESPECTIVELY IN THE PARTICIPATION AGREEMENT S) FOR THE SNR
PARTICIPANTS IS AS FOLLOWS:
------------------------------------- ----------------------------- --------------------------
SNR PARTICIPANT MAXIMUM CORRESPONDING
INVESTMENT PERCENTAGE
------------------------------------- ----------------------------- --------------------------
WESTON PRESIDIO CAPITAL II, L.P. $4,000,000 56.3550%
------------------------------------- ----------------------------- --------------------------
BANCBOSTON VENTURES, INC. $ 586,875 8.2683%
------------------------------------- ----------------------------- --------------------------
ST. ▇▇▇▇ VENTURE CAPITAL V, LLC $1,173,750 16.5366%
------------------------------------- ----------------------------- --------------------------
NATIONAL CITY CAPITAL CORPORATION $ 587,250 8.2736%
------------------------------------- ----------------------------- --------------------------
▇▇▇▇▇▇ CAPITAL, L.P. $ 750,000 10.5665%
------------------------------------- ----------------------------- --------------------------
(i) References in the Financing Agreement and in any of the Financing
Agreement to "NationsBank" shall mean Bank of America.
5. The second paragraph of Section 2.6.1 (Senior Note Redemption
Subfacility) is hereby amended in its entirety as follows:
THE AMOUNT SET FORTH IN THE FOLLOWING TABLE IS HEREIN
CALLED SUCH SNR LENDER'S "SNR COMMITTED AMOUNT," THE AGGREGATE OF ALL SNR
LENDER'S SNR COMMITTED AMOUNTS EQUAL SEVEN MILLION NINETY-SEVEN THOUSAND
EIGHT HUNDRED SEVENTY-FIVE DOLLARS ($7,097,875.00) AND IS HEREIN CALLED THE
"TOTAL SNR COMMITTED AMOUNT," AND THE PROPORTIONATE SHARE SET FORTH IN THE
FOLLOWING TABLE IS HEREIN CALLED SUCH SNR LENDER'S "SNR PRO RATA SHARE."
SNR LENDER SNR COMMITTED AMOUNT SNR PRO RATA SHARE
BANK OF AMERICA $3,275,946.13 46.1539%
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SNR LENDER SNR COMMITTED AMOUNT SNR PRO RATA SHARE
LASALLE $2,183,959.35 30.7692%
PNC $1,637,969.52 23.0769%
TOTAL SNR COMMITTED
AMOUNT $7,097,875 100%
6. References in the Financing Agreement to the "SNR Participation
Agreement" and to the "SNR Participant" shall include all of the "SNR
Participation Agreements" and all of the "SNR Participants."
7. It is a condition of the agreements of the Agent and the Lenders under
this Agreement that as of the date of this Agreement (a) each of the Obligors
shall meet each of the requirements of Section 5.3 of the Financing Agreement
that were applicable to the Obligors on the SNR Closing Date, and (b) each of
the SNR Participants shall meet each of the requirements of Section 5.3 of the
Financing Agreement that were applicable to the "SNR Participant" (as that term
is defined in the Third Amendment), except that an opinion of counsel shall be
required only for Weston Presidio Capital II, L.P., a Delaware limited
partnership. Upon fulfillment of those requirements (including, without
limitation, the execution and delivery of the SNR Participation Agreements), the
"SNR Guaranty" (as that term is defined in the Third Amendment) and the "SNR
Participation" (as that term is defined in the Third Amendment) shall be
released, terminated and of no further force or effect.
8. With respect to the SNR Participations:
(a) After February 28, 2001 and before April 15, 2001, the SNR
Participants or the Borrower by notice to the Agent and the SNR Lenders may
request that the SNR Participation Agreements be released, which the Agent and
the SNR Lenders shall do if (i) the Borrower has delivered the annual financial
statements, certificates and opinions as and when required by Sections 6.1.1(a)
and (b); (ii) there shall exist no Default or Event of Default as of the date of
those financial statements, the date of the notice and the date of the release;
(iii) the outstanding principal amount of the Revolving Loan plus the
Outstanding Letter of Credit Obligations does not on the date of release exceed
(after the application of any proceeds of an advance under the Revolving Credit
Facility permitted under subsection (d) below) an amount equal to the lesser of
(A) the Total Revolving Credit Committed Amount or (B) the Borrowing Base, minus
Ten Million Dollars ($10,000,000) and minus an amount equal to accrued and
unpaid interest on the Senior Notes; and (iv) the conditions of the following
subparagraph (c) have been met. For the purposes of this release, the Agent may
conduct a field examination of the Borrower to confirm the values included in
the Borrowing Base and to confirm that trade, taxes, other amounts payable and
other obligations of the Borrower and the Guarantors have continued to be paid
when due.
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(b) If the SNR Participants or the Borrower do not make a request
meeting the requirements of subsection (a) above, for a period of thirty (30)
days after the Borrower delivers the financial statements and certificates as
and when required by Sections 6.1.1(c) for a month that is also the end of a
fiscal quarter of the Borrower, the SNR Participants or the Borrower by notice
to the Agent and the SNR Lenders may request that the SNR Participation
Agreements be released, which the Agent and the SNR Lenders shall do if (i) the
Borrower has delivered the monthly financial statements and certificates as and
when required by Sections 6.1.1(c) for the fiscal quarter most recently ended;
(ii) there shall exist no Default or Event of Default as of the date of those
financial statements, the date of the notice and the date of the release; (iii)
the outstanding principal amount of the Revolving Loan plus the Outstanding
Letter of Credit Obligations does not on the date of release exceed (after the
application of any proceeds of an advance under the Revolving Credit Facility
permitted under subsection (d) below) an amount equal to the lesser of (A) the
Total Revolving Credit Committed Amount or (B) the Borrowing Base, minus Ten
Million Dollars ($10,000,000) and minus an amount equal to accrued and unpaid
interest on the Senior Notes; and (iv) the conditions of the following
subparagraph (c) have been met. For the purposes of this release, the Agent may
conduct a field examination of the Borrower to confirm the values included in
the Borrowing Base and to confirm that trade, taxes, other amounts payable and
other obligations of the Borrower and the Guarantors have continued to be paid
when due.
(c) The SNR Lenders shall have no obligation to release the SNR
Participation Agreements unless the Mortgage at the time of the release shall
▇▇▇▇▇ ▇ ▇▇▇▇ covering the real property described therein to the Agent, for the
ratable benefit of the SNR Lenders and the Agent to secure the SNR Loan
Obligations (including, without limitation, the Agent's Obligations with respect
thereto), and shall:
(i) be in form and substance satisfactory to the Agent;
(ii) create a first priority Lien in such real property in favor
of the Agent, for the ratable benefit of the SNR Lenders and the Agent to
secure the SNR Loan Obligations (including, without limitation, the Agent's
Obligations with respect thereto), subject only to Permitted Liens, zoning
ordinances, existing leases related to a PILOT program, and such other
matters as the Agent may reasonably approve and subject to no preference
claims or other claims under the Bankruptcy Codes or under other Laws
affecting the rights of creditors generally;
(iii) be accompanied by a current appraisal of the fair market
value of the subject real property prepared by appraisers reasonably
satisfactory to the Agent, which appraisal shall show that the outstanding
principal balance of the SNR Loan does not exceed 75% of such fair market
value, which balance shall not exceed $5,775,000 after the application of
any proceeds of an advance under the Revolving Credit Facility permitted
under subsection (d) below;
(iv) be accompanied by a current survey reasonably satisfactory
in all respects to the Agent of the subject real property, prepared by a
registered land surveyor or engineer satisfactory to the Agent;
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(v) be accompanied by evidence (including, without limitation, a
Phase I report ordered by and for the Agent and meeting ASTM standards and
the Agent's then current standards) reasonably satisfactory to the Agent
regarding the current and past pollution control practices at such real
property in connection with the discharge, emission, handling, disposal or
existence of Hazardous Materials, which may include, at the Agent's
request, an environmental audit of such real property prepared by a person
or firm acceptable to the Agent;
(vi) be accompanied by a mortgagee's title insurance policy or
marked-up unconditional commitment or binder for such insurance in form and
substance satisfactory to the Agent and issued by a title insurance company
reasonably satisfactory to the Agent; and
(vii) upon request of the Agent, be accompanied by a signed
opinion of counsel addressed to the Agent and each of the Lenders, in form
and substance satisfactory to the Agent, and from counsel, satisfactory to
the Agent, licensed to practice in the state where the subject real
property is located.
(d) The Agent and the Lenders agree that the proceeds of the
Revolving Credit Facility may be used to prepay the SNR Loan only if (i) at the
time of a request for release under subparagraph (a) or (b) above, the Borrower
makes a request for such use, stating the amount requested, (ii) the amount of
the requested use is necessary to enable the Borrower to meet the requirements
of clause (iii) of subparagraph (c) above, and (iii) upon such use, all
conditions for the release requested have been met.
9. The Borrower covenants and agrees to provide on or before August 31,
2000, the item required by clause (iv) of Section 8(c) above. This Section 9
replaces Section 10 of the Third Amendment.
10. The Obligors, as applicable, hereby issue, ratify and confirm the
representations, warranties and covenants contained in the Financing Agreement,
as amended hereby. The Obligors agree that this Agreement is not intended to and
shall not cause a novation with respect to any or all of the Obligations.
11. The Obligors acknowledge and warrant that the Agent and Lenders have
acted in good faith and have conducted in a commercially reasonable manner their
relationships with the Obligors in connection with this Agreement and generally
in connection with the Financing Agreement and the Obligations, the Obligors
hereby waiving and releasing any claims to the contrary.
12. The Obligors shall pay at the time this Agreement is executed and
delivered all fees, commissions, costs, charges, taxes and other expenses
incurred by the Agent and Lenders and their counsel in connection with this
Agreement, including, but not limited to, reasonable fees and expenses of the
Agent's counsel and all recording fees, taxes and charges.
13. This Agreement may be executed in any number of duplicate originals or
counterparts, each of such duplicate originals or counterparts shall be deemed
to be an original and taken together shall constitute but one and the same
instrument. The parties agree that their
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respective signatures may be delivered by facsimile. Any party who chooses to
deliver its signature by facsimile agrees to provide a counterpart of this
Agreement with its inked signature promptly to each other party.
IN WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and Agent
have executed this Agreement under seal as of the date and year first written
above on the pages that follow.
THE SIGNATURES FOLLOW ON SIGNATURE PAGES S-1 THROUGH S-7.
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Signature Page
Fourth Amendment to
Second Amended and Restated
Financing and Security Agreement
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, BANK OF AMERICA, N.A.(in
its capacity as "Agent"), and BANK OF AMERICA, N.A. and the other financial
institutions which are parties to the Financing Agreement as "Lenders"
AAi.FOSTERGRANT, INC. (formerly known as
Accessories, Associates, Inc.)
By: /s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇
Chief Financial Officer
▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, L.P.
By: ▇▇▇▇▇▇▇ General, Inc.
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇
Chief Financial Officer
FANTASMA, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇
Chief Financial Officer
S-1
10
Signature Page
Fourth Amendment to Second Amended and Restated
Financing and Security Agreement
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, BANK OF AMERICA, N.A.(in
its capacity as "Agent"), and BANK OF AMERICA, N.A. and the other financial
institutions which are parties to the Financing Agreement as "Lenders"
F.G.G. INVESTMENTS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇
Chief Financial Officer
THE ▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇
Chief Financial Officer
▇▇▇▇▇▇▇ GENERAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇
Chief Financial Officer
S-2
11
Signature Page
Fourth Amendment to Second Amended and Restated
Financing and Security Agreement
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, BANK OF AMERICA, N.A.(in
its capacity as "Agent"), and BANK OF AMERICA, N.A. and the other financial
institutions which are parties to the Financing Agreement as "Lenders"
▇▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇
Chief Financial Officer
▇▇▇▇▇▇ ▇▇▇▇▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇
Chief Financial Officer
S-3
12
Signature Page
Fourth Amendment to Second Amended and Restated
Financing and Security Agreement
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, BANK OF AMERICA, N.A.(in
its capacity as "Agent"), and BANK OF AMERICA, N.A. and the other financial
institutions which are parties to the Financing Agreement as "Lenders"
O-RAY HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇
Chief Financial Officer
S-4
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Signature Page
Fourth Amendment to Second Amended and Restated
Financing and Security Agreement
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, BANK OF AMERICA, N.A.(in
its capacity as "Agent"), and BANK OF AMERICA, N.A. and the other financial
institutions which are parties to the Financing Agreement as "Lenders"
BANK OF AMERICA, N.A., Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
BANK OF AMERICA, N.A.
in its capacity as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
S-5
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Signature Page
Fourth Amendment to Second Amended and Restated
Financing and Security Agreement
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, BANK OF AMERICA, N.A.(in
its capacity as "Agent"), and BANK OF AMERICA, N.A. and the other financial
institutions which are parties to the Financing Agreement as "Lenders"
LASALLE BUSINESS CREDIT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
First Vice President
S-6
15
Signature Page
Fourth Amendment to Second Amended and Restated
Financing and Security Agreement
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, BANK OF AMERICA, N.A.(in
its capacity as "Agent"), and BANK OF AMERICA, N.A. and the other financial
institutions which are parties to the Financing Agreement as "Lenders"
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇ ▇▇▇▇▇
Vice President
S-7
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EXHIBIT A-2
SNR NOTE
$__________ Baltimore, Maryland
August __, 2000
FOR VALUE RECEIVED, AAi.FOSTERGRANT, INC. (formerly known as Accessories
Associates, Inc.), a corporation organized and existing under the laws of the
State of Rhode Island (the "Borrower"), promises to pay to the order of
________________ (the "SNR Lender"), the principal sum of ____________________
DOLLARS ($___________) (the "Principal Sum"), or so much thereof as has been or
may be advanced to or for the account of the Borrower pursuant to the terms and
conditions of the "Financing Agreement" (as hereinafter defined) with respect to
the SNR Lender's SNR Pro Rata Share of the SNR Loan (as those terms are defined
in the Financing Agreement), together with interest thereon at the rate or rates
provided in the Financing Agreement. All capitalized terms used, but not
specifically defined herein, shall have the meanings given such terms in the
Financing Agreement.
1. INTEREST.
Commencing as of the date hereof and continuing until repayment in full of
all sums due hereunder, the unpaid Principal Sum shall bear interest at the
Applicable Interest Rate or, if applicable, the Post Default Rate. The rate of
interest charged under this Note shall change immediately and contemporaneously
with any change in the Applicable Interest Rate. All interest payable under the
terms of this Note shall be calculated on the basis of a 360-day year and the
actual number of days elapsed.
2. PAYMENTS AND MATURITY.
The unpaid Principal Sum, together with interest thereon at the rate or
rates provided above, shall be payable as follows:
(e) Interest shall be paid at the times for the payment of interest
set forth in Section 2.3 of the Financing Agreement; and
(f) The Borrower shall make installment payments of principal at the
times and in the amounts provided in Section 2.6.4 (Payments of Senior Note
Redemption Subfacility) of the Financing Agreement; and
(g) Unless sooner paid, the unpaid Principal Sum, together with
interest accrued and unpaid thereon, shall be due and payable in full on the
Revolving Credit Expiration Date (as that term is defined in the Financing
Agreement).
The fact that the balance hereunder may remain at or may be reduced to zero from
time to time pursuant to the Financing Agreement will not affect the continuing
validity of this Note or the
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Financing Agreement, and the balance may be increased to the Principal Sum after
any such reduction to zero.
3. LATE CHARGES.
If the Borrower shall fail to make any payment under the terms of this Note
within ten (10) days after the date such payment is due, the Borrower shall pay
to the SNR Lender on demand a late charge equal to five percent (5%) of such
payment.
4. APPLICATION AND PLACE OF PAYMENTS.
All payments, made on account of this Note shall be applied first to the
payment of any late charge then due hereunder, second to the payment of accrued
and unpaid interest then due hereunder, then to any installments of principal
then due and payable hereunder, and, if the Borrower is permitted to make a SNR
Loan Optional Prepayment (as that term is defined in the Financing Agreement),
then to any applicable Early Termination Fee (as that term is defined in the
Financing Agreement), and the remainder, if any, shall be applied to
installments of principal in the inverse order of maturity. All payments on
account of this Note shall be paid in lawful money of the United States of
America in immediately available funds during regular business hours of Bank of
America, N. A. (the "Agent") at the office of Bank of America Business Credit in
Baltimore, Maryland or at such other times and places as the Agent (as that term
is defined in the Financing Agreement) may at any time and from time to time
designate in writing to the Borrower.
5. FINANCING AGREEMENT.
This Note is an "SNR Note" described in a Second Amended and Restated
Financing and Security Agreement dated July 21, 1998 (as amended by that certain
First Amendment to Second Amended and Restated Financing and Security Agreement
dated as of May 7, 1999, Second Amendment to Second Amended and Restated
Financing and Security Agreement dated as of March 24, 2000, Third Amendment to
Financing and Security Agreement dated the same date as this Note (the "Third
Amendment"), and as further amended, restated, modified, substituted, extended,
and renewed from time to time, the "Financing Agreement") by and among the
Borrower, Bank of America, N.A., a national banking association, in its capacity
as Agent (the "Agent"), the SNR Lender, and others identified from time to time
therein as "Obligors," "SNR Lenders" and "Lenders" under the Financing
Agreement. The indebtedness evidenced by this Note is included within the
meaning of the term "Obligations" under the Financing Agreement.
6. SECURITY.
This Note is secured by the Mortgage (as that term is defined in the
Financing Agreement) and as otherwise provided in the Financing Agreement.
7. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute
an event of default (individually, an "Event of Default" and collectively, the
"Events of Default") under the terms of this Note:
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(h) The failure of the Borrower to pay to the SNR Lender when due any
and all amounts payable by the Borrower to the SNR Lender under the terms of
this Note; or
(i) The occurrence of an "Event of Default" (as defined in the
Financing Agreement).
8. REMEDIES.
Upon the occurrence of an Event of Default, at the option of the SNR
Lender, all amounts payable by the Borrower to the SNR Lender under the terms of
this Note shall immediately become due and payable by the Borrower to the SNR
Lender without notice to the Borrower or any other person, and the SNR Lender
shall have all of the rights, powers, and remedies available under the terms of
this Note, any of the other Financing Documents and all applicable laws. The
Borrower and all endorsers, guarantors, and other parties who may now or in the
future be primarily or secondarily liable for the payment of the indebtedness
evidenced by this Note hereby waives presentment, protest and demand, notice of
protest, notice of demand and of dishonor and non-payment of this Note and
expressly agrees that this Note or any payment hereunder may be extended from
time to time without in any way affecting the liability of the Borrower,
guarantors and endorsers.
The SNR Lender agrees with the Agent and the other Lenders that the
decisions and determinations of the Required Lenders in enforcing this Note and
in guiding the Agent in this matter shall be binding upon the SNR Lender,
including, without limitation, authorizing the Agent at the pro rata expense of
the SNR Lenders (to the extent not reimbursed by the Borrower) to retain
attorneys to seek judgment on this Note. The SNR Lender similarly agrees with
the Agent and the other Lenders and covenants with the Borrower that it will not
seek to separately institute any legal action on this Note. All rights of action
under this Note may be enforced by the Agent only and any suit or proceeding
instituted by the Agent in furtherance of such enforcement may be brought in its
name as Agent without the necessity of joining as plaintiffs or defendants the
SNR Lender, and the recovery of any judgment shall be for the benefit of the
Agent and the SNR Lenders, subject to the expenses of the Agent.
9. ARBITRATION.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING, BUT
NOT LIMITED TO THOSE ARISING OUT OF THIS NOTE, THE FINANCING AGREEMENT OR THE
OTHER FINANCING DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN
ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE
FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE ACT), THE
RULES OF PRACTICE AND PROCEDURE FOR ARBITRATION OF COMMERCIAL DISPUTES OF THE
JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (J.A.M.S.) AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF AN INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION. ANY PARTY TO THIS NOTE OR ANY OTHER FINANCING DOCUMENT MAY
BRING ANY ACTION, INCLUDING A SUMMARY OR EXPEDITED
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PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS NOTE
RELATES IN ANY COURTS HAVING JURISDICTION OVER SUCH ACTION.
(A) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
AGENT'S DOMICILE AT THE TIME OF EXECUTION OF THIS NOTE AND ADMINISTERED BY
J.A.M.S. WHO WILL APPOINT AN ARBITRATOR. IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90
DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A
SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCING OF SUCH HEARING FOR AN
ADDITIONAL 60 DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS NOTE OR OTHER FINANCING
DOCUMENTS SHALL BE DEEMED TO: (I) LIMIT OR EXPAND THE APPLICABILITY OF ANY
OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED
IN THIS INSTRUMENT, AGREEMENT OR DOCUMENT; OR (II) BE A WAIVER BY THE LENDER OF
THE PROTECTION AFFORDED TO IT BY 12 U.S.C. 91 OR ANY SUBSTANTIALLY EQUIVALENT
STATE LAW; OR (III) LIMIT OR EXPAND THE RIGHT OF THE LENDER. (A) TO EXERCISE
SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SET OFF, OR (B) TO FORECLOSE
AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT
PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE
RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE LENDER MAY
EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH
PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS NOTE OR ANOTHER LOAN DOCUMENT.
NEITHER THE EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
ANY ACTION FOR FORECLOSURE OR FOR PROVISIONAL OR ANCILLARY REMEDIES SHALL
CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH
ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT
TO SUCH REMEDIES.
10. NOTICES.
Any notice, request, or demand to or upon the Borrower or the SNR Lender
shall be deemed to have been properly given or made when delivered in accordance
with Section 9.1 of the Financing Agreement.
11. APPLICABLE LAW.
The Borrower acknowledges and agrees that this Note shall be governed by
the laws of the State of Maryland, even though for the convenience and at the
request of the Borrower, this Note may be executed elsewhere.
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IN WITNESS WHEREOF, each of the Borrower has caused this Note to be
executed under seal by its duly authorized officers as of the date first written
above.
WITNESS: AAI.FOSTERGRANT, INC. (formerly known as
Accessories Associates, Inc.)
By: /s/ ▇▇▇▇ ▇▇▇▇ (Seal)
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▇▇▇▇ ▇▇▇▇
Chief Financial Officer
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