OAKLEY, INC.
SIXTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "AMENDMENT") is dated as of March __, 1997 and entered into by and
among OAKLEY, INC., a Washington corporation ("COMPANY"), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred
to herein as a "LENDER" and collectively as "LENDERS") and ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION ("▇▇▇▇▇ FARGO"), as agent for Lenders (in such capacity,
"AGENT"), and is made with reference to that certain Amended and Restated
Credit Agreement dated as of August 15, 1995, as amended by the First
Amendment to Amended and Restated Credit Agreement, dated as of November 22,
1995, by and among Company, Lenders and Agent, the Second Amendment to
Amended and Restated Credit Agreement, dated as of October 10, 1996, by and
among Company, Lenders and Agent, the Third Amendment to Amended and Restated
Credit Agreement, dated as of November 25, 1996, by and among Company,
Lenders and Agent, the Fourth Amendment to Amended and Restated Credit
Agreement, dated as of January 29, 1997, by and among Company, Lenders and
Agent, and the Fifth Amendment and Limited Waiver of Amended and Restated
Credit Agreement, dated as of March __, 1997 (as amended, the "CREDIT
AGREEMENT"), by and among Company and Requisite Lenders. Capitalized terms
used herein without definition shall have the same meanings herein as set
forth in the Credit Agreement.
RECITALS
Company has requested that Requisite Lenders amend subsection
7.7 of the Credit Agreement to permit Company to acquire all or substantially
all of the assets of One Xcel, Inc., a manufacturer and distributor of
protective ▇▇▇▇▇▇▇ for football, hockey and other related sport headgear.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto
agree as follows:
Section MODIFICATIONS TO THE CREDIT AGREEMENT
1.1 AMENDMENT TO SUBSECTION 7.7: RESTRICTIONS ON FUNDAMENTAL CHANGES;
ASSET SALES AND ACQUISITIONS.
Subsection 7.7 of the Credit Agreement is hereby amended by
deleting the word "and" appearing after clause (vi). Subsection 7.7 of the
Credit Agreement is
amended further by deleting the period (.) appearing at the end of clause
(vii) and substituting the following therefor:
"; and
(viii) Company may acquire all or substantially all of the
assets of One Xcel, Inc., a manufacturer and distributor of protective
▇▇▇▇▇▇▇ for football, hockey and other related sport headgear; PROVIDED
that the aggregate purchase price for such assets shall not exceed
$3,200,000."
2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "SIXTH
AMENDMENT EFFECTIVE DATE"):
A. Company shall deliver to Lenders (or to Agent for Lenders
with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) a counterpart of this Amendment executed by a duly
authorized officer of Company and each Credit Support Party (defined below).
B. On or before the Sixth Amendment Effective Date, Agent, on
behalf of Lenders, shall have received a counterpart of this Amendment
executed by a duly authorized officer of each of Requisite Lenders.
Section COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company represents
and warrants to each Lender that the following statements are true, correct
and complete:
A. CORPORATE POWER AND AUTHORITY. Company has all requisite
corporate power and authority to enter into this Amendment and to carry out
the transactions contemplated by, and perform its obligations under, the
Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Company.
C. NO CONFLICT. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended Agreement do not and
will not (i) violate the Certificate or Articles of Incorporation or Bylaws
of Company or any of its Subsidiaries, (ii) violate any provision of any law
or any governmental rule or regulation applicable to Company or any of its
Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on Company or any
of its Subsidiaries, which violation could reasonably be expected to have a
Material Adverse Effect, (iii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries in a manner that
could reasonably be expected to have a Material Adverse Effect, (iv) result
in or require the creation or imposition of any Lien upon any of the
properties or assets of Company or any of its Subsidiaries (other than any
Liens created under any of the Loan Documents in favor of Agent on behalf of
Lenders), or (v) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company or any of
its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by
Company of this Amendment and the performance by Company of the Amended
Agreement do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
E. BINDING OBLIGATION. This Amendment and the Amended
Agreement have been duly executed and delivered by Company and are the
legally valid and binding obligations of Company, enforceable against Company
in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
F. ABSENCE OF DEFAULT. No event has occurred and is
continuing or will result from the consummation of the transactions
contemplated by this Amendment that would constitute an Event of Default or a
Potential Event of Default.
Section ACKNOWLEDGEMENT AND CONSENT
Repeat Incorporated, an Arizona corporation ("REPEAT"), and
Barter Optical, Inc., a Washington corporation ("BARTER"), are parties to the
Guaranty, pursuant to which Repeat and Barter have guarantied the Obligations
of Company under the Credit Agreement. Repeat and Barter are collectively
referred to herein as the "CREDIT SUPPORT PARTIES".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment
and consents to the amendment of the Credit Agreement effected pursuant to
this Amendment. Each Credit Support Party hereby confirms that the Guaranty
will continue to guaranty to the fullest extent possible the payment and
performance of all "Guarantied Obligations" (as such term is defined in the
Guaranty), including without limitation the payment and performance of all
such "Guarantied Obligations", in respect of the Obligations of Company now
or hereafter existing under or in respect of the Amended Agreement and the
Notes defined therein.
Each Credit Support Party acknowledges and agrees that the
Guaranty shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be
impaired or limited by the execution or effectiveness of this Amendment.
Each Credit Support Party represents and warrants that all representations
and warranties contained in the Amended Agreement and the Guaranty to which
it is a party or otherwise bound are true, correct and complete in all
material respects on and as of the Sixth Amendment Effective Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case they were true, correct and complete in all material respects on
and as of such earlier date.
Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Credit
Agreement or any other Loan Document to consent to the amendments to the
Credit Agreement effected pursuant to this Amendment and (ii) nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be deemed
to require the consent of such Credit Support Party to any future amendments
to the Credit Agreement.
Section MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(i) On and after the Sixth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended or waived by this Amendment,
the Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy
of Agent or any Lender under, the Credit Agreement or any of the other
Loan Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs,
fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
C. HEADINGS. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
OAKLEY, INC., as the Borrower
By: _________________________
Title: ______________________
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
Individually and as Agent
By: _________________________
Title: ______________________
UNION BANK OF CALIFORNIA, N.A.,
(formerly named Union Bank) as a Lender
By: _________________________
Title: ______________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Lender
By: _________________________
Title: ______________________
ACKNOWLEDGMENT AND CONSENT
--------------------------
BARTER OPTICAL, INC., as a Credit Support Party
By: __________________________
Title: _______________________
REPEAT INCORPORATED, as a Credit Support Party
By: __________________________
Title: _______________________
