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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997 OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______ TO _____
COMMISSION FILE NUMBER 000-23899
BOLLE INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 13-393-4135
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(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
555 Theodore Fremd Avenue, Rye, NY 10580
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
Registrant's telephone number, including area code: 914-967-9475
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
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None
Securities registered pursuant to Section 12(g) of the Act: Common Stock.
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS
REQUIRED TO BE FILED BY SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934 DURING THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE
REGISTRANT WAS REQUIRED TO FILE SUCH REPORTS) AND (2) HAS BEEN SUBJECT TO SUCH
FILING REQUIREMENTS FOR THE PAST 90 DAYS.
YES _X_ NO ___
THE AGGREGATE MARKET VALUE OF THE VOTING STOCK HELD BY NON AFFILIATES OF THE
REGISTRANT AT APRIL 14, 1998 WAS $ 41,490,988, COMPUTED BY REFERENCE TO
THE CLOSING PRICE AS OF THAT DATE.
THE NUMBER OF SHARES OUTSTANDING OF THE REGISTRANT'S ONLY CLASS OF COMMON
STOCK AS OF APRIL 14, 1998 WAS 6,638,558 SHARES.
DOCUMENTS INCORPORATED BY REFERENCE: NONE.
INDICATE BY CHECK MARK IF DISCLOSURE OF DELINQUENT FILERS PURSUANT TO ITEM 405
OF REGULATION S-K IS NOT CONTAINED HEREIN AND WILL NOT BE CONTAINED TO THE
BEST OF REGISTRANT'S KNOWLEDGE IN DEFINITIVE PROXY OR INFORMATION STATEMENTS
INCORPORATED BY REFERENCE IN PART III OF THIS FORM 10-K OR ANY AMENDMENT TO
THIS FORM 10-K. [ X ]
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BOLLE INC.
ANNUAL REPORT ON FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 1997
TABLE OF CONTENTS
Page
PART I -----
Item 1. Business....................................................... 1
Item 2. Properties..................................................... 8
Item 3. Legal Proceedings.............................................. 8
Item 4. Submission of Matters to a Vote of Security Holders............ 8
PART II
Item 5. Market for Registrant's Common Equity
and Related Stockholder Matters................................ 8
Item 6. Selected Financial Data........................................ 9
Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations.................. 11
Item 7A. Quantitative and Qualitative Disclosures About Market Risk..... 15
Item 8. Financial Statements and Supplementary Data.................... 15
Item 9. Changes In and Disagreements With Accountants
on Accounting and Financial Disclosure......................... 36
PART III
Item 10. Directors and Executive Officers of the Registrant............. 36
Item 11. Executive Compensation......................................... 38
Item 12. Security Ownership of Certain Beneficial
Owners and Management.......................................... 43
Item 13. Certain Relationships and Related Transactions................. 44
PART IV
Item 14. Exhibits, Financial Statement Schedules,
and Reports on Form 8-K........................................ 47
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PART I
ITEM 1. BUSINESS
GENERAL
Bolle Inc. (the "Company" or "Bolle") was organized on February 3, 1997
in connection with the July 1997 acquisition by the Company's then parent
corporation, BEC Group, Inc., which changed its name to Lumen Technologies,
Inc. on March 11, 1998 (hereinafer "BEC" or "Lumen"), of Holding B.F. ("Bolle
France") Bolle France is a French holding company, which at the time of
acquisition owned the Bolle(Registered Trademark) design and manufacturing
operation and certain distribution interests, including the worldwide rights
to the Bolle(Registered Trademark) brand. The Company is a holding company,
the principal subsidiaries of which are Bolle America, Inc. ("Bolle America")
and Bolle France. Bolle America is the exclusive distributor of Bolle
(Registered Trademark) brand products in the United States and Mexico. The
Company also owns an interest in several other entities which hold exclusive
Bolle (Registered Trademark) brand distribution rights in other markets
throughout the world.
On March 11, 1998, BEC distributed to its stockholders of record as of
such date all of BEC's equity interest in the Bolle and Bolle's business
(the "Spinoff"). Shares distributed in the Spinoff were registered with the
Securities and Exchange Commission ("SEC") and are listed on NASDAQ under the
symbol "BEYE.".
INTRODUCTION
The Company designs, manufactures and markets premium sunglasses and sport
shields, goggles and safety and tactical eyewear under the Bolle(Registered
Trademark) brand. Bolle(Registered Trademark) products enjoy worldwide
recognition and a high quality image in the sport and active lifestyle
markets, particularly skiing, golf and cycling, as well as a growing
reputation in the larger, fashion driven recreational sunglass market. The
Company's safety and tactical business, which accounts for approximately half
of the Company's aggregate unit sales, serves the specialty segment of the
safety eyewear market, including laser protection products and military
applications. The Company broadened the reach of this business by introducing
its safety eyewear products into the U.S. market in 1998.
The recent creation of Bolle Inc. through the combination of Bolle America
and Bolle France consolidates the Company's ownership of the worldwide rights
to the Bolle(Registered Trademark) trademark for the Company's products with
its international manufacturing and distribution capabilities under one
organization. For the first time, the Company is positioned to develop and
execute a unified marketing strategy targeted at promoting the Company's
competitive advantages. The Company believes that these advantages include
its strong brand name, integrated design, production and marketing
capabilities, superior technology, specialized product offerings, established
international distributors in over 40 countries and a one hundred year long
heritage of producing quality products. The Company intends to integrate its
international distributors into a cohesive worldwide network and to add new
distributors through acquisitions or distributorship agreements.
In recent years, the retail sunglass market has experienced the emergence
of a specific premium market, reflected by increased sales of higher priced
and quality oriented products. Based on available industry data, the Company
believes that sales of premium sunglasses grew from $825 million in 1989 to
$1.6 billion in 1996. The Company competes in the premium sunglass market.
The factors which contribute to the growth of this market include
advancements in product technology, growing demand for specialized
sunglasses, increased health concerns and greater fashion and image
consciousness, all of which encourage multiple purchases. Safety and tactical
eyewear products may be designed for general or special purpose. The Company
competes in the special purpose safety and tactical eyewear market. The
factors which may contribute to the potential growth of this market include
increasing regulation of safety eyewear, new special purpose applications,
advancements in product technology and growing demand for more style oriented
products. The Company believes that both its sunglass and safety and tactical
eyewear products, with their increased user-specific characteristics and
proven reputation for style and high performance, are suited to today's
consumer preferences in their respective markets.
The Company has recently announced the following corporate developments,
which constitute a significant start to its growth strategy:
Worldwide Marketing Initiative. The Company has launched a worldwide
marketing initiative to promote a consistent brand image through (i)
coordinated advertising campaigns in major international and local media and
at retail locations, (ii) focused sponsorship of athletes attracting
international interest, (iii) for the first time, a single marketing and
product brochure for distributors worldwide. Through a sport-specific
approach the Company plans to emphasize the technological characteristics,
style and performance of Bolle(Registered Trademark) products. The Company
also believes that the impact of its worldwide marketing initiative will be
maximized by its parallel efforts to build a cohesive distribution network.
Significant Endorsement Advertising. As part of its strategy of building a
unified global marketing program, the Company has entered into agreements
with several world famous athletes to endorse Bolle products. Such athletes
include Martina Hingis, the youngest number one-ranked player in the history
of women's tennis, Jacques Villeneuve, the Formula One racing world
champion, Picabo Street and Jean-Luc Cretier, Olympic super G and
downhill gold medalists, respectively, and Steve Jones,
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winner of the U.S. Open golf championship. In addition, Bolle has sponsorship
programs with over a thousand athletes worldwide who wear Bolle(Registered
Trademark) products in competition.
Focused Product Offerings. In 1992, the Company was the first to introduce
a line of sunglasses specifically designed for golfers. The market for
premium sunglasses has shown a trend towards consumer preference for
sport-specific eyewear. The Company has a tradition of designing and
manufacturing sport-specific eyewear in cooperation with its sponsored
athletes. The Company is in the process of focusing its lines and collections
of sunglasses and sport glasses based on their use rather than their design,
style or other defining criteria. For instance, in cooperation with a major
distribution of tennis products, the Company recently introduced a new sunglass
model specifically suited to the needs of tennis players with a high
performance selective light filtration system designed to enhance the clarity
of yellow tennis balls. The Company believes that its experience in designing
sport specific eyewear products makes it particularly well positioned to
respond to current trends in consumer preferences.
Alyn Supply Agreement. Consistent with its traditional focus on
technological innovation, in October 1997, the Company has entered into the
three-year exclusive Alyn supply agreement with Alyn, a manufacturer of
specialized metal frames, to create premium sunglass frames using
Boralyn(Registered Trademark), a special patented metal matrix providing
greater strength and stiffness to weight ratios than titanium, which is
currently considered the leading metal for advanced metal eyewear.
Development work on the Boralyn(Registered Trademark) line is in progress
with launch planned for 1999.
Acquisition of Distributors. As part of its strategy of consolidating its
distributors, in March 1998, the Company acquired Bolle Canada, the
distributor of the Company's products in Canada. The Company has executed a
non-binding letter of intent to purchase 75% of Bill Bass Optical and
affiliate thereof, the largest independent and principal distributor of the
Company's products in Australia, where the Company believes Bill Bass Optical
commands a leading market share. As part of this proposed acquisition, the
Company will purchase 100% of the outstanding shares of Bolle Asia Ltd.
("Bolle Asia") (the distributor of the Company's sunglasses in Southeast Asia),
and the remaining 49% of the shares that the Company does not own of Bolle
Sunglasses Ltd. ("Bolle Sunglasses") (the distributor of the Company's
sunglasses in the U.K.) for an aggregate price of approximately $6,250,000,
consisting of $3,900,000 in cash and $2,350,000 in Common Stock. It is
contemplated that the transaction will be completed in the second quarter of
1998, and, thereupon, that the sellers would collectively retain a 25%
ownership interest in Bill Bass Optical providing them with a 25% share in the
profits generated by Bill Bass Optical and a pro rata share of any
distributions therefrom.
The Company believes that its competitive position is enhanced through (i)
its broad array of distribution channels, which reduces its reliance on any
one channel, (ii) its target markets due to its use of local subcontractors
to manufacture certain products, (iii) its internal design capabilities, and
(iv) the diversity of its safety and tactical product lines. The Company
believes that its flexible manufacturing and design capabilities allow the
Company to maintain a valuable costs structure and minimal inventories and to
respond quickly to shifting trends in the industry.
PRODUCTS
General
The Company designs, manufactures and markets premium sunglasses and sport
shields ranging in retail price from $30 to $165 and ski goggles at most
price points. The Company currently offers approximately 180 models of
sunglasses, sport shields and goggles in 15 collections for a total of
approximately 400 separate product offerings. Each year, the Company attempts
to introduce a number of new models and collections and retire slower moving
product offerings. Recently introduced Bolle(Registered Trademark) products
include the Breakaway(Trademark) and Snakes(Trademark) collections. The
Company believes that the continued introduction of new and innovative
products will be important to its success and that it must continue to
respond to changing consumer preferences in the areas of style, function and
technological innovation.
Active Lifestyle Focus
Bolle(Registered Trademark) sunglasses are particularly suitable to most
athletic endeavors, from recreational activities to hard-core competition,
such as skiing, snowboarding, triathlon, surfing, golf and other outdoor
pursuits and generally to the needs of customers having an active lifestyle.
Bolle(Registered Trademark) sport shields and goggles are offered for a broad
range of sports activities, including road and high-speed sports, squash,
racquetball and other high impact sports, golf, surfing and windsurfing, rock
and ice sports as well as sky diving. Bolle(Registered Trademark) ski goggles
are designed to provide performance and protection to persons facing the
elements encountered in skiing, snowboarding and other winter sports. Sales
in the ski goggle market are dependent to a significant extent on weather
conditions and the quality and duration of the ski season. Bolle(Registered
Trademark) safety and tactical eyewear includes safety glasses and goggles,
face shields, laser eye protection devices and other specialized safety and
tactical eyewear products.
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Technological Characteristics
Bolle(Registered Trademark) Frames. Bolle(Registered Trademark) nylon
frames are lightweight and virtually unbreakable. The Company uses an
hydrated "memory" nylon, a virtually unbreakable material obtained through a
proprietary process owned by the Company. The Company uses this special
process to saturate the nylon material so that it retains moisture. Bolle
(Registered Trademark) nylon frames return to their original shape after a
mistreatment, which significantly improves product life. Pigments are
incorporated during the manufacturing process and are therefore unalterable.
Grylamid frames are used for their transparent properties and light weight
while metal frames employ state-of-the-art alloys which provide durability
and resiliency while offering modern styling. Frames are offered in a variety
of monochromatic versions from black to fluorescent pink to white as well as in
exotic versions from patterns in the "Graffiti" line to various sparkling
colors in the "Crystal" line and most recently "Cyber" colors. Bolle also
distributes metal frames primarily through its optical distribution network.
Bolle(Registered Trademark) Polycarbonate Lenses. The Company's primary
lens material is polycarbonate, a lighter and more impact resistant material
than glass, which provides high protection from damaging sun light. The
Company was among the first to incorporate lightweight polycarbonate lenses
for use in recreational eyewear, including sunglasses and sport glasses. The
Company has since developed its own polycarbonate lens, the Bolle(Registered
Trademark) 100 which is capable of stopping 100% of ultraviolet rays, 100% of
infrared rays and 56% of blue light. This lens can achieve this high
performance without any surface coating. Its filtering power is due
exclusively to absorbers included in the material and its application is used
in sun protection, computer work, welding and lasers. Approximately 85% of
the Company's total current production features polycarbonate lenses. The
Company believes the use of polycarbonate lenses has played an important role
in its ability to manufacture high performance technologically-advanced
eyewear products. Although polycarbonate is three times lighter than glass
and maintains perfect optical quality, it is twenty times more impact
resistant than glass and can be pierced without creasing, cracking or
splitting. Optically correct polycarbonate lenses are quartz coated for
scratch resistance. Polycarbonate lenses are available in a variety of colors
including smoke, vermilion, amber, emerald and clear, each adapted to
particular weather conditions.
Acrylic, Acetate and Glass Lenses. Other lens materials in the Company's
product lines include acrylic, acetate and glass. Acrylic is a durable yet
inexpensive material used in the Company's medium-priced collections that
allows the Company to offer products at an economical price point. Acrylic
lenses are lighter than glass, pass tests adopted by the U.S. Food and Drug
Administration for impact resistance and offer scratch resistance through
quartz coating. CR-39(Registered Trademark) plastic lenses are available in
clear, yellow, vermilion, smoke and all-weather designs. Spectra lens
coatings that are available include blue, green, orange, rose, gold and
silver. The Polarized lens collection features glass lenses, offering light
smoke, dark smoke and light brown polarization. Polarized lenses reduce
surface glare. Multilayer colored lens coatings include blue, violet, green,
red, gun and infrared.
Optional Features
The Company offers an interchangeable lens system (marketed under the
Breakaway(Trademark) brand), which enables consumers to customize the style
and functions of certain Bolle(Registered Trademark) products by adapting
different lenses to the same frame. Also offered with many Bolle(Registered
Trademark) products is a patented Sport Optical System(Trademark), which the
Company has designed to satisfy the needs of an increasing number of its
customers requiring sport glasses with corrective lenses. Along with
anti-scratch coating and polarization, most Bolle(Registered Trademark) sport
and protective eyewear products offer anti-fog coating, which the Company was
the first to develop for its ski goggles in 1973.
SAFETY AND TACTICAL PRODUCT
The Company carries a line of approximately 50 safety and tactical styles and
produces customer specific designs for special purpose applications. The
products are based around the Company's proprietary "memory" nylon frames and
carboglass lenses, a high impact and scratch resistant material based on
polycarbonate, but sprayed with quartz crystal coating. The Bolle safety
spectacle range provides style, function and comfort using advanced technology
and materials. As well as manufacturing safety glasses for standard industrial
requirements, the Company specializes in specific application eyewear such as
Laser glasses, chemical splash protection and military approved products. A
number of the designs are based on the sunglass collection; similarly a
number of the technological features used on Bolle sunglasses are developed from
Bolle's in-house R&D laboratory.
ADVERTISING AND MARKETING
As a result of its recent acquisition of Bolle France, the Company owns
the production and design capabilities of Bolle France and the worldwide
rights to the Bolle(Registered Trademark) brand for its products. This
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organization enables the Company to create and execute a consistent and
unified worldwide marketing and distribution strategy. This strategy is
focused on leveraging Bolle(Registered Trademark)'s superior technology and
established distributors in over 40 countries to expand aggressively the
Bolle(Registered Trademark) brand with consistency of brand image and design
innovation. The Company's worldwide marketing initiative includes a unified
marketing and product brochure for distributors worldwide, coordinated
advertising campaigns in major international and local media and at retail
locations, increased sponsorship of significant sport competitions and
athletes attracting international interest and the unification of the Company's
sport celebrity endorsement program. The Company's marketing strategy also
includes training retail salespersons to understand fully the specifics of
Bolle(Registered Trademark) products and in-store education highlighting the
Bolle(Registered Trademark) style and technical features. The Company expects
that the impact of its worldwide marketing initiative will be maximized by
its parallel efforts to build a cohesive distribution network. The Company
expects to coordinate future introductions of new Bolle(Registered Trademark)
products, such as a new motorsports line, both with its international
distributors and through new distribution channels so as to maximize the
benefits which the Company may derive from its worldwide rights to the
Bolle(Registered Trademark) brand and enhance global sales. The Company's
marketing initiative will seek to emphasize through a unified sport-specific
approach the technological frame and lens characteristics and long-standing
proven reputation for style and performance of Bolle(Registered Trademark)
products.
The Company intends to unify and expand its sponsoring program through the
use of endorsement arrangements with sports celebrities and professional
athletes. Endorsement contracts typically have a two-to three-year term,
providing the Company with flexibility to renew such contracts. The Company
has sponsored athletes in a number of venues including the Tour de France,
the Olympic Games and the Pro Golf Tour. French Olympic gold medal ski
champion Luc Alphand uses and endorses the Company's Chrono line of ski
goggles. Martina Hingis, the youngest number one-ranked player in the history
of women's tennis, has agreed to wear exclusively Bolle(Registered Trademark)
sunglasses, sport glasses and ski goggles at all public events and for
recreation, and to appear in advertisements and promotions for
Bolle(Registered Trademark) products worldwide. Jacques Villeneuve, the 1997
Formula One racing world champion and Picabo Street, winner of the gold medal
in the Super G competition in the 1998 Winter Olympic Games and have also
agreed to wear exclusively Bolle(Registered Trademark) sunglasses, sport
glasses and ski goggles at all public events for recreation, and to appear in
advertisements and promotions for Bolle(Registered Trademark) products
worldwide. The Company also sponsors a variety of teams and organizations
including sport federations and the Professional Golfers Association. These
sponsorships are a cost effective means of publicizing the Bolle(Registered
Trademark) brand name and demonstrate the Company's ability to deliver
quality products that satisfy the performance needs of a broad array of
sports.
The Company intends to capitalize on the opportunity to consolidate
globally the brand management and marketing of the Bolle(Registered
Trademark) brand for its products. This will enable the coordination of new
product releases worldwide and promote a consistent brand image and an
international, focused athlete sponsorship program.
DESIGN AND PRODUCTION
Design. The Company employs a four person design team in Oyonnax and
maintains relationships with outside design agencies under the supervision of
Mr. Maurice Bolle. Mr. Maurice Bolle designed the famous cat eye sunglass in
the 1950's. The Bolle design team oversees the entire design process, from
carving the actual frame out of acetate to mold creation, forming, polishing
and the final lens development stage. Approximately 20 new molds are designed
each year. The Company currently houses a library of approximately 700 molds.
The molds for each Bolle(Registered Trademark) design have been inventoried
in a warehouse at the Company's facilities in Oyonnax, France and the Company
believes it maintains the capability to produce over 97% of the products
represented by its mold inventory.
Production. Although the Company has outsourced the completion of a
substantial number of steps in the process it uses to manufacture its
products, the Company still closely oversees the activities of its
subcontractors. This enables the Company to retain control over the entire
assembly process that leads to any finished Bolle(Registered Trademark)
product, including the production of eyeglass frames through injection
molding and of foam cushioning and straps for the Company's sport products as
well as the creation of design applications added to eyeglass frames. The
majority of the subcontractors of the Company are
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located in the immediate vicinity of the Company's facilities in Oyonnax,
France and the manufacture of Bolle(Registered Trademark) products is their
primary activity. The Company has not entered into binding agreements with
its subcontractors and has not outsourced the production of items involving
proprietary processes. However, the Company believes that its history of good
relations with such subcontractors and the close proximity of these
subcontractors to its operations provides a conducive environment for
continued good business relations. The Company believes its arrangements with
subcontractors enable it to maintain a variable cost structure and minimal
inventory levels as well as to respond quickly to shifting trends in the
industry.
Products manufactured entirely by the Company include those made pursuant
to orders that are not large enough to warrant subcontractor production, or
which require the utilization of certain molds which do not fit the machine
specifications of subcontractors or which correspond to new or specific
design requirements, such as hard eyewear cases or certain eyeglass frames
which feature a wire-reinforced temple. The Company also participates in
original equipment manufacturing for other manufacturers of premium-priced
eyewear at its manufacturing facility. Although such arrangements do not
represent a significant portion of its business, the Company believes the
manufacturing of these products is evidence of its continued reputation as a
quality producer of high performance eyewear.
SUPPLIERS
Raw Materials
The Company generally obtains the raw materials required for use in
eyewear production, such as polycarbonate and nylon, from distributors of
such materials and occasionally directly from suppliers. The Company is not
dependent on any one source for supply of such materials and has not in the
past had, and does not expect in the future to have, difficulty in obtaining
materials. These materials are generally available from a number of
U.S. and international suppliers.
Metal Frames
Pursuant to its supply agreement with the Company, Alyn, the exclusive
manufacturer of Boralyn(Registered Trademark), a special proprietary metal
matrix providing greater strength and stiffness to weight ratios than
titanium, has agreed to provide the Company exclusively with sunglass frames
using Boralyn(Registered Trademark), which is currently considered the
leading metal for advanced metal eyewear. Alyn has retained the right to
provide certain prescription eyeglass frames to other customers. In order to
retain exclusivity, the Company must maintain certain specified minimum
purchase amounts, starting at 100,000 units for the first year and increasing
by 50,000 units per year through the fourth year and by 25,000 units per year
for the two remaining years. The Alyn Supply Agreement is for a term of three
years beginning with the first shipment of frames from Alyn to the Company,
and extends for an additional three years if the Company meets its
contractual requirements and agrees to certain specified purchase levels.
COMPETITION
The Company faces intense competition in the premium sunglasses and ski
goggle business. The premium sunglass industry is dominated by three large
competitors, Bausch & Lomb, Luxottica and Oakley, with a combined share of
the U.S. premium sunglass market estimated at approximately 60%. The rest of
the market is fragmented, with numerous small competitors. The Company
competes with a number of manufacturers, importers and distributors whose
brand names may enjoy greater brand recognition than that of Bolle(Registered
Trademark). The principal methods of competition are style, product
performance, price and brand recognition. Most competitors of the Company
offer a portfolio of brands, as opposed to focusing exclusively on one brand,
as do the Company and Oakley.
In addition, the Company faces intense competition in safety and tactical
eyewear market, including competition from Bacou, Uvex, Dalloz, Karsurg and a
number of Far East manufacturers who have copied the Company's styles.
Competition is based on quality, price, reputation and technological features.
Companies active in the Company's industry must respond simultaneously to
changes in fashion and technology, yet maintain inexpensive and rapid
production in order to remain competitive. Moreover, general economic
conditions and regulatory policies complicate these companies' ability to
address all factors effectively. Consequently, these companies alleviate the
complexity through reliance on name brands and images. Consumers' purchasing
decisions are often the result of highly subjective
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preferences which can be influenced by many factors, including, among others,
advertising, media, promotions and product endorsements. The Bolle(Registered
Trademark) name has been recognized for decades and the Company believes that
it is well positioned to retain such strong recognition in the future. The
Company believes that its competitive advantages include its strong brand
name; product quality; product performance; leading edge styling; integrated
design, production and marketing; superior technology and technological
innovation; specialized product offerings; price; and international
distribution networks. The Company also believes that the competitive
advantage constituted by the Company's right to market Bolle(Registered
Trademark) products in the United States through multiple retail distribution
channels, including general and specialty sporting goods stores and
optometrists, ophthalmologists and opticians, is important to its competitive
position.
The Company believes its continued success will depend upon its ability to
remain competitive in its product areas. With several of its competitors
having greater financial, research and development, manufacturing and
marketing experience and resources than the Company, the Company faces
substantial long term competition. The failure to compete successfully in the
future could result in a material deterioration of customer loyalty and the
Company's image and could have a material adverse effect on the Company's
business.
CUSTOMERS
The distributors owned by the Company are not dependent upon a single
customer or a few customers. None of the Company's customers account for more
than 10% of the Company's consolidated revenues. Bolle America's top 25
customers represent approximately half of its total net sales. In addition to
its relationships with large chains, Bolle America has an established
distribution network to thousands of smaller customers.
QUALITY CONTROL AND PRODUCT IMPROVEMENT
Bolle(Registered Trademark) products are subject to stringent quality
control requirements. At every step of the production process, each piece of
a product is inspected by hand before moving to the next level of production.
The Company estimates that each unit of eyewear undergoes a minimum of four
quality control inspections before it leaves the facility. Technicians test
random samples from the manufacturing facility and from subcontractors to
check for durability and other production specifications. Product
improvements are continually developed in the Company's testing laboratory.
For instance, the Company tests the fit of its sport and safety goggles by
using a machine which agitates particles in the air and measures the amount
of particles which pass through the edges of the product. The Company's
testing laboratory meets all British, German and U.S. international standards
for testing. High velocity and radiation testing are conducted regularly.
Laser coating units and spectrophotometers add to the Company's ability to
produce superior products.
SALES AND DISTRIBUTION
The Company sells its products through a worldwide network of both
affiliated and independent wholesale distributors in over 40 countries, which
in turn distribute Bolle(Registered Trademark) products to retail outlets.
Information regarding the sales, operating profit or loss and identifiable
assets attributable to the Company's U.S. and foreign operations for the year
ended December 31, 1997 is set forth in Note 16 to the Company's Consolidated
Financial Statements included in this Form 10-K. Prior to the acquisition of
Bolle France by the Company in July 1997, the Company had no foreign
operations and the information regarding the sales, operating profit or loss
and identifiable assets of the Company for the years ended December 31, 1997,
1996 and 1995, which is provided in note 16 to the Company's Consolidated
Financial Statements, is primarily attributable to Bolle America's U.S.
operations. During 1997, 61% of total sales were to North American
distributors, 29% of sales were in Europe, 10% of sales were in Australia and
Asia and the rest of the world.
In the United States, the Company sells its products through a nationwide
network of approximately 200 independent sales representatives and
distributors to over 10,000 accounts, which include general and specialty
sporting good stores, opticians, ophthalmologists and optometrists, golf pro
shops, retail sunglass stores and mail order catalog companies.
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The Company's retail products distribution operations are designed to meet
the individual inventory and service requirements of its customers. Products
are shipped in a variety of volumes, ranging from full truck loads, to small
order to pre-stocked displays. Most orders are shipped by ground service via
common carriers to either a customer's distribution center or directly to the
customer's retail location. The Company believes that its operations are
capable of meeting a customer's individual service needs.
Howard Leight Industries ("Howard Leight"), a major distributor of
industrial safety products, has committed to purchase from the Company
certain safety eyewear products for exclusive marketing and sale through
industrial supply networks in North and South America. In February 1998, Bacou
USA, one of the main competitors of the Company, purchased Howard Leight.
The Company has consented to the assignment of the Howard Leight Agreement to
Bacou. Under the Agreement (as amended), if Bacou fails to make minimum
purchases aggregating $3,500,000 by December 31, 1998, Bacou must pay to the
Company liquidated damages equal to 27.5% of any shortfall in such purchases.
Pursuant to the Agreement, the Company and Bacou further agree to work toward
an agreement by September 30, 1998 to develop the worldwide Bolle(Registered
Trademark) safety business and continue to explore mutually advantageous
business opportunities. The agreement has an initial term of seven years,
beginning October 15, 1997, and is automatically renewed thereafter for
successive one-year terms unless either party gives three months' notice of
termination. Additionally, either party may terminate the Agreement effective
December 31, 1998 upon sixty (60) days written notice prior to that date.
The Company plans to consolidate certain of its distributors through
acquisitions or other arrangements over the next three years. As part of this
strategy, the Company has executed letters of intent to purchase 75% of Bill
Bass Optical, the largest independent distributor of the Company's products
and the principal distributor of the Company's products in Australia, whose
sales of Bolle(Registered Trademark) products in Australia exceeded $10 million
in 1997. The Company believes that this will provide the potential for
increases in the efficiency and utilization of its distribution channels. In
addition, the Company has also entered into a letter of intent to bring its
shareholding in Bolle UK to 75%.
SEASONALITY
The Company's sunglass business is seasonal in nature with the second
quarter having the highest sales due to the increased demand for sunglasses
during that period. The Company's goggle business is seasonal in nature with
the first quarter having the highest sales due to the increased demand for
goggles during the ski season. This seasonality is partially offset by safety
eyewear sales worldwide.
REGULATION
The Company has been specifically certified by appropriate industry and
governmental authorities to manufacture sunglasses, sport products and
industrial protection products as well as laser protection products and
eyewear produced for specific military orders.
INTELLECTUAL PROPERTY
The Company, directly or indirectly, owns the exclusive right to a number
of registered trademarks in the United States and other countries, including
Bolle (Registered Trademark); Bolle PC (Registered Trademark); ACRYLEX
(Registered Trademark); ALIEN (Registered Trademark); CONTOUR (Registered
Trademark); CHRONOSHIELD (Registered Trademark); MICRO EDGE (Registered
Trademark); GEOMETRIC (Registered Trademark); TIGER SNAKE (Registered
Trademark); SUNSPENDER (Registered Trademark); Bolle EYEZONE (Registered
Trademark); EYEZONE DESIGN (Registered Trademark); NORTHERN LIGHTS (Registered
Trademark); PUT 'EM ON YOUR FACE (Registered Trademark); EAGLE VISION
(Registered Trademark); TACTICAL (Registered Trademark); AVANT EDGE
(Registered Trademark); bf (Registered Trademark); MAURICE BOLLE (Registered
Trademark); CARBO GLAS (Registered Trademark); AQUASHIELD (Registered
Trademark); and the Snakes design. In addition, Bolle America has applications
pending to register a number of additional trademarks, including BREAKAWAY
(Trademark), SEE BETTER, PLAY BETTER (Trademark); Bolle MADNESS (Trademark);
Bolle ATTACK (Trademark); Bolle ESCAPE (Trademark); Bolle CARBONEX (Trademark);
VAPOR TRAIL (Trademark); and TOUR ELITE (Trademark).
The Company has a number of design and utility patents registered in the
United States and other countries and owns the Bolle(Registered Trademark)
trademark for the Company's products. The Company's United States patents have
expiration dates ranging from 2001 to 2015; certain of these patents are
subject to the payment of maintenance fees to maintain their registration.
These patents are intended to protect the unique design and functional
characteristics of certain Bolle(Registered Trademark) products from
duplication by competitors. There can be no assurance that any individual
patent will provide substantial protection or be of commercial value. The loss
of any one patent would not have a material adverse effect on the business of
the Company.
EMPLOYEES
As of April 14, 1998, the Company had approximately 160 employees, about half
of which were assigned to the Company's design, production and distribution
operations in France and the remainder to its distribution operations in the
United States and other parts of the world. None of the Company's employees
working in the United States is subject to a collective bargaining agreement.
Employees of the Company working in France are subject to the provisions of
the French Labor Code and a collective bargaining agreement. The Company
considers its relations with its employees in the United States and France to
be satisfactory.
ENVIRONMENTAL REGULATION
Manufacturing operations managed by corporations in which the Company
has an interest are subject to regulation by various foreign, federal, state
and local agencies concerned with environmental control. The Company believes
that these facilities are in substantial compliance with all existing foreign,
federal, state and local environmental regulations.
ITEM 2. PROPERTIES
As of April 10, 1998, the locations of the Company's principal facilities
are as follows:
<TABLE>
<CAPTION>
LOCATION PRINCIPAL USE/USER(S) APPROXIMATE SQUARE FOOTAGE
- -------- --------------------- --------------------------
<S> <C> <C>
Oyonnax, France Manufacturing plant, design center, warehouse and office
space/Bolle France 90,000
Denver, Colorado Warehouse and office space (lease commencing May 1, 1998)
/Bolle America 30,000
</TABLE>
The Company owns all of its manufacturing facilities in France and leases
its Denver facilities. The Company's main manufacturing facility in France,
located just outside Oyonnax, France., houses the majority of the
manufacturing activities of the Company as well as the quality control
functions, management, and design.
In addition, the Company, through a wholly-owned subsidiary, owns and leases
to an unaffiliated lessee an approximately 150,000 square foot building located
in Farmer's Branch, Texas. The property is subject to a mortgage held by Wells
Fargo Bank (Texas) in the current principal amount of approximately $3.5
million. The Company has entered into a contract for the sale of this building.
ITEM 3. LEGAL PROCEEDINGS
While the Company is engaged in routine litigation incidental to its
business, the Company believes that there are no material pending legal
proceedings to which it is a party or to which any of its property is the
subject. In connection with the Spinoff, the Company agreed to indemnify Lumen
against liabilities which may arise from certain pending litigation not
relating to the Company's operations. The Company does not believe that any of
such pending litigation constitutes material legal proceedings for the
Company.
-8-
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITIES HOLDERS
No matters were submitted to a vote of the Company's stockholders
during the fourth quarter of 1997.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The Company's common stock commenced trading publicly on March 12,
1998. The Company's common stock is listed on the NASDAQ National Market under
the symbol "BEYE." Therefore, there is no relevant historical public market
information for the fiscal years ended December 31, 1997 and 1996.
As of April 14, 1998, there were approximately 600 stockholders of
record of the Company's common stock (representing approximately 5,000
beneficial owners of the Company's common stock). No dividends have ever been
declared on the Company's common stock, other than as disclosed in the
Selected Historical Financial Data set forth below and other than in
connection with the distribution of shares of common stock in immediately
prior to the Spinoff in order to effect a stock split in anticipation of
effecting the spinoff. The Company has no intention of paying dividends in the
foreseeable future. It is the present policy of the Company's Board of
Directors that any retained earnings accumulated will be used to finance
future acquisitions and expansion of the Company's operations.
Pursuant to the terms of the Amended and Restated Share Purchase
Agreement, dated July 9, 1997, by and among the Company, on the one hand, and
Mr. Robert Bolle, Mr. Maurice Bolle, Mr. Franck Bolle, Ms. Patricia Bolle
Passaquay, Ms. Brigitte Bolle and Ms. Christelle Roche (collectively, the
"Sellers") on the other hand, the Company issued to the Sellers an aggregate of
64,120 shares of Series A Preferred Stock. Holders of the Series A Preferred
Stock are not entitled to receive dividends.
Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Company before any distribution of assets of the Company
shall be made to or set apart for the holders of Common Stock, the holders of
the Series A Preferred Stock will be entitled to receive from the Company's
assets legally available for distribution to stockholders, a payment in an
amount equal to the greater of (i) 1,000 French Francs per share or (ii) the
French Franc equivalent of US $172.41 per share of Series A Preferred Stock.
After payment of the full amount of the liquidation distributions to which
they are entitled, the holders of the Series A Preferred Stock will have no
right or claim to any of the remaining assets of the Company. In the event
that upon any such voluntary or involuntary liquidation, dissolution or winding
up, the available assets of the Company are insufficient to pay the amount of
the liquidation distributions on all outstanding shares of Series A Preferred
Stock, then the holders of the Series A Preferred Stock shall share ratably in
any such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled. The
Series A Preferred Stock is not convertible or exchangeable for any other
securities of the Company.
Shares of the Series A Preferred Stock will be redeemed by the Company
upon 10 days' prior written notice on the third anniversary of their
issuance, subject to the provisions of the Company's senior indebtedness in
effect at the effective time of the Spinoff (which includes indebtedness
under the Credit Agreement)(the "Senior Indebtedness"). Prior to that, the
Company may redeem any shares of Series A Preferred Stock at any time upon 10
days' prior written notice. In addition, in the event the Company's EBITDA
exceeds US $18,400,000 for the fiscal year 1998 or US $24,700,000 for the
fiscal year 1999, the Company shall be obligated to redeem, upon 10 days'
prior written notice, and within 110 days after the close of the relevant
fiscal year, any shares of Series A Preferred Stock then outstanding,
provided in each case that Bolle remains in compliance with the financial
covenants contained in the Senior Indebtedness after giving effect to such
redemption and US $2,000,000 million is available for borrowing by Bolle
under such senior indebtedness. In the event that the Series A Preferred
Stock is not redeemed in full by its due date, it will begin accruing
interest from July 2000.
Generally, the shares of Series A Preferred Stock have no voting rights.
If the Company fails to give notice of a redemption within three years of the
date of issuance of any shares of Preferred Stock, the holders of more than
90% of such shares shall have the right to cause the Company to use
commercially reasonable efforts to either obtain cash in order to redeem in
full such shares or to effect without delay a commercially reasonable sale of
the Company's assets or the merger, consolidation or other reorganization of
the Company. So long as any shares of Series A Preferred Stock are
outstanding, the Company shall not, without the consent of holders of at
least 90% of such shares, (i) alter or change the rights, preferences or
privileges of such shares or (ii) issue any class or series of preferred
stock ranking senior or pari passu with the Series A Preferred Stock with
respect to dividend, redemption or liquidation rights. Shares of Series A
Preferred Stock may only be transferred to persons who are already holders of
such shares and in accordance with applicable law.
The issuance of such Series A Preferred Stock and Series B Preferred Stock
was exempt from the registration provisions of the Securities Act of 1933
pursuant to Section 4(a) thereof and rules promulgated thereunder, and the
securities so issued were deemed to be restricted securities. No underwriter
was engaged in connection with such issuance of securities.
In March 1998, subsequent to the period covered by this Form 10-K, the
Company additionally issued certain shares of Series B Preferred Stock.
ITEM 6. SELECTED HISTORICAL FINANCIAL DATA
The following selected historical financial data have been derived
from audited historical financial statements and should be read in conjunction
with the consolidated financial statements of the Company included herein.
The Company was formed in 1997 to complete the acquisition of Bolle
France and therefore has no historical activity or financial statements. Bolle
America was purchased by Lumen in November 1995 in a pooling of interests
transaction. In conjunction with the purchase of Bolle France, Bolle America
became a subsidiary of the Company. Accordingly, for accounting purposes only,
Bolle America is treated as the acquiror of Bolle France and therefore the
predecessor business for historical financial statement purposes.
-9-
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
(IN THOUSANDS EXCEPT FOR PER SHARE DATA)
1997(1) 1996(2) 1995(3) 1994(4) 1993
<S> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Net sales $32,160 $24,425 $24,829 $23,094 $18,377
Cost of sales 15,354 12,130 12,181 10,814 9,126
Gross profit 16,806 12,295 12,648 12,280 9,251
Selling, general and 16,342 11,374 10,275 8,871 7,384
administrative expenses
(including advertising
and sponsoring expenses)
Merger and acquisition
integration related
expenses 3,750 -- 3,050 -- --
Interest expense (income) 963 (256) (302) 316 336
Other expense (income) (693) (450) 48 (104) (295)
Income (loss) before (3,556) 1,627 (423) 3,197 1,826
income taxes
Provision for (benefit 1,099 635 364 1,260 700
from) income taxes
Net income (loss) $(4,655) $992 $(787) $1,937 $1,126
Net income (loss) per
share $2,586.11 $9,920.00 $(0.22) $0.65 $0.38
Weighted average shares
outstanding 1.8 0.1 3,510.6 2,997.0 2,963.0
French Franc per US
Dollar exchange rate
used(5) 5.9843
BALANCE SHEET DATA:
Working capital $(20,936) $8,535 $11,395 $12,781 $1,060
(deficiency)
Total assets 94,697 15,624 16,309 17,549 9,629
Long term debt -- -- -- 57 49
Mandatorily redeemable 11,055 -- -- -- --
preferred stock
Stockholders' equity 18,843 9,743 12,770 13,433 1,584
French Franc per US 5.9912
Dollar exchange rate
used(5)
(1) On July 10, 1997, the Company acquired Bolle France and related
assets in a transaction accounted for as a purchase. Accordingly, the
results of operations for Bolle France are included in historical
results of operations from that date.
(2) In 1996, the Company paid a dividend to BEC (its then current
stockholder) of $4,019.
(3) In November 1995, BEC acquired Bolle America in a transaction
accounted for as a pooling of interests. Accordingly, Bolle America
is included in all periods presented.
(4) In 1994, Bolle America paid a $50 dividend to its then current
shareholders.
(5) Represents the exchange rates used to translate the results of
operations and balance sheet amounts of Bolle France. The exchange
rate shown for the actual results of operations for the year ended
December 31, 1997 represents the average exchange rate for the six
months ended December 31, 1997 used to translate the results of
operations of Bolle France included in the Company's actual results.
</TABLE>
-10-
<PAGE>
ITEM 7 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
Due to the acquisition of Bolle France on July 10, 1997, only six
months of results of operations of Bolle France are included in the results of
operations for the year ended December 31, 1997.
In conjunction with the acquisition of Bolle France and following the
Spinoff, it is anticipated the Company will be subject to interest on
approximately $16 million of senior indebtedness at an average current rate of
approximately 6%. Although this represents significantly less than the
indebtedness owed to Lumen prior to the Spinoff, it is nevertheless higher
than indebtedness had been prior to the Bolle France acquisition. In addition,
the acquisition of Bolle France has resulted in additional depreciation and
amortization of approximately $2.1 million, significantly increasing selling,
general and administrative expenses as a percentage of sales.
The Company has begun to develop and implement a global brand
management and marketing program, resulting in increased advertising expenses.
There is no guarantee that such increased expenses will result in increased
sales.
It is not anticipated that operating on a standalone basis following
the Spinoff will have a significant impact on the results of operations,
financial position or cash flows of the Company other than that which is
disclosed herein. The Company was operated as a separate segment of Lumen's
business and will, under a Management Service Agreement, continue to receive
management and administrative services from Lumen on similar terms to those
reflected in the historical financial statements.
The Company is in the process of upgrading its information systems to
support the implementation of its worldwide marketing strategy. The new
applications are expected to function properly with respect to dates in the
year 2000 and thereafter and the new single currency which is scheduled to be
introduced by the European Union at the beginning of 1999. The Company
started implementing the planned applications in 1997 and plans to finish
during 1999. This upgrading process will significantly affect many aspects of
the Company's business, including its manufacturing, sales and marketing
functions. The successful implementation and integration of the new
applications will be important to facilitate future growth. The Company could
experience unanticipated delays in the upgrading of its information systems
and such upgrading could cause significant disruption in operations. If the
Company is not successful in upgrading its information systems, fails to
train its personnel in their use in a timely manner or if the Company
experiences difficulties in the upgrading process, the Company could
experience problems with the delivery of its products or its ability to
access timely and accurate financial and operating information could be
adversely affected. In addition, delays in implementing the new systems could
require additional expenditures by the Company to modify or replace portions
of its existing information systems so that they will function properly with
respect to dates in the year 2000 and thereafter and the new European
currency. There can be no assurance that the Company will be able to correct
any problems with respect to such dates or the new currency in a timely
manner. Any failure by the Company to respond properly to these problems or
any other difficulties which the Company may face with its information
systems could have a material adverse effect on the Company's business and
financial results.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO THE YEAR ENDED DECEMBER 31, 1996
Net sales of $32.2 million for the year ended December 31, 1997
increased from $24.4 million for the comparable period in 1996 despite a $5.7
million decrease in sales in the United States, resulting from the acquisition
of Bolle France on July 10, 1997. For the year ended December 31, 1997 North
American Sales (primarily in the United States) represented 61% of net sales
with European sales representing 29%. Soft conditions in the U.S. Market for
premium sunglasses contributed to the decrease in sales in North America. A
major retail distributor of premium sunglasses, which had been growing rapidly
up until the fourth quarter of 1996, began closing outlets and returning excess
inventory at the end of 1996 and into 1997, negatively affecting the entire
premium sunglass industry. This customer represented approximately 14% of sales
for the year ended December 31, 1996 and less than approximately 6% of sales
for the year ended December 31, 1997. While overall retail sales continued to
grow, many premium sunglass manufacturers had overproduced in anticipation of
significantly higher sales and took significant returns which eroded profit
margins. The Company does not expect this trend to continue in 1998.
Gross margin increased from 50.3% for the year ended December 31, 1996
to 52.3% for the year ended December 31, 1997, reflecting the higher gross
margins of the integrated manufacturing and distribution operations of the
Company following the Acquisition.
-11-
<PAGE>
Advertising and sponsoring expenses increased $0.5 million on a sales
increase of $7.7 million due to the acquisition of Bolle France.
For the year ended December 31, 1997 selling, general and
administrative expenses of $12.6 million increased form $8.1 million for the
year ended December 31, 1996, reflecting the acquisition of Bolle France. As a
percentage of sales, selling, general and administrative expenses increased due
to the 1997 combination of manufacturing and distribution sales.
Acquisition integration related expenses of $3.75 million in 1997
represent the following expenses incurred in connection with the integration
of Bolle France and creation of Bolle Inc.: (i) a reserve for the return of
product from the Company's owned and non-owned distributors in conjunction
with the redefining and streamlining of Bolle Inc.'s new product line, and
(ii) the legal, production and marketing expenses related to the set up of a
new logo for Bolle(Registered Trademark) worldwide and the creation of the
first worldwide catalog.
Interest expense of $1.0 million for the year ended December 31, 1997
reflects the interest expense on the debt incurred to fund the acquisitions of
Bolle France. In the comparable period in 1996 Bolle America's cash on hand
generated interest income of $0.3 million.
Other income consists of allocated equity income and management fee
income from BEC's investment in Eyecare Products of $0.6 million for the year
ended December 31, 1997 and $0.4 million for the year ended December 31, 1996.
This income was allocated to the Company by Lumen. For each of the years ended
December 31, 1997 and 1996 other income also included $0.1 million of foreign
exchange transaction gains.
The Company recorded a net tax provision of $1.1 million despite the
loss before taxes of $3.6 million for the year ended December 31, 1997. A
provision was recorded as a result of the Company establishing a valuation
allowance against the entire domestic net deferred tax asset for 1997. The
acquisition of Bolle France in 1997 had a significant impact on the tax rate.
In 1996, the effective tax rate was 39.0% of net income before taxes.
-12-
<PAGE>
Year ended December 31, 1996 compared to year ended December 31, 1995
Net sales were flat for the year ended December 31, 1996 compared to
the prior year. Although the premium sunglass market continued to grow, Bolle
America (the only business included in the Company at that time) was affected
by industry problems described above that reduced sales in the fourth quarter.
At the end of 1996 and into 1997, the Company's "grass roots" distribution to
many smaller, loyal retail outlets worked in its favor by lessening the effect
of sales declines experienced in certain of the Company's larger customers.
For the years ended December 31, 1996 and 1995, the Company's sales were
substantially all in the United States.
During 1996 and 1995 the Company purchased substantially all of its
products from Bolle France, which did not change its pricing significantly
during those years. Accordingly, the gross margin of 50% in 1996 did not
change materially from the 1995 gross margin of 51%.
For the year ended December 31, 1996, advertising and sponsoring
expenses were $3.3 million versus $2.7 million for the prior year. This
increase in dollars and as a percentage of sales was due to the Company's
strategy of building the brand in the United States where it competes with
other brands which are heavily marketed and advertised.
Selling general and administrative costs increased from $7.6 million
in 1995 to $8.1 million in 1996 primarily due to corporate allocation of its
Lumen's general and administrative expenses in 1996. In 1995, because the
Company was acquired by Lumen in November, no allocations were effected.
In November 1995, the Company was acquired by Lumen in a transaction
accounted for as a pooling of interests. Accordingly, the merger related costs
of $3.1 million are included in the results of the Company for 1995.
In both 1996 and 1995, the Company's cash on hand resulted in interest
income of $0.3 million.
Other income in 1996 includes $0.4 million of allocated equity income
from BEC's investment in Eyecare Products. This income was allocated to the
Company by BEC. During 1995, because the acquisition of the Company by BEC did
not occur until November, the comparable equity income was not allocated. The
1995 amount consists of foreign exchange losses.
The effective tax rate of 39% in 1996 represents an operating basis
provision while the 1995 benefit reflects the significant effect of the merger
related expenses.
-13-
<PAGE>
Liquidity and capital resources
Net cash provided by operating activities during the year ended
December 31, 1997 of $1.1 million represents the net loss offset by the
positive effect of non cash expenses and the reduction of inventory and
accounts receivable. Depreciation and amortization for the year ended December
31, 1997 was $1.5 million compared to $0.4 million for 1996, reflecting the
acquisition of Bolle France. Cash paid for acquisitions in 1997 represents the
purchase of Bolle France net of cash received with the acquisition. Capital
expenditures of $0.7 million were also increased due to the acquisition. These
operating and investing activities were financed through proceeds from
indebtedness to related parties, primarily through borrowings from Lumen which
were funded by Lumen through its revolving credit facility. During 1997 the
Company borrowed US Dollars from Lumen at a rate of 8% and French Francs at a
rate of 5.5%. On March 11, 1998 the Company executed a separate credit facility
(the "New Credit Facility") with substantially the same terms as the Lumen
facility. Proceeds from the New Credit Facility were used to repay a portion of
indebtedness to related parties. There will be no intercompany credit
arrangements between Lumen and the Company. The Company will lend cash to its
subsidiaries in substantially the same manner as Lumen lends to the Company and
its subsidiaries. Management believes that the New Credit Facility, along with
cash provided from operations will be sufficient to fund the Company's cash
operating and investing requirements for the foreseeable future. It is not
expected that repatriation of French Franc cash flows, if any, will have a
significant impact on liquidity.
Net cash provided by operating activities during the year ended
December 31, 1996 consisted of net income and increases in accounts payable
offset by increases in receivables from related parties and inventory. The
Company's cash was paid to Lumen from which it received interest
income.
Net cash used by operating activities in 1995 consisted of the net
loss resulting from the merger-related expenses and increases in net working
capital. Cash on hand as a result of the December 1994 offering was used to
finance investing activities.
In connection with the Bill of Sale and Assignment Agreement (the
"Contribution Agreement"), between Lumen and the Company, approximately $17
million of indebtedness to related parties incurred to finance the acquisition
of Bolle France was capitalized. This reduction in the Company's debt improves
working capital levels. The Company expects cash flows from operations combined
with available borrowing capacity to be sufficient to fund the Company's
future operating and investing needs through at least 1998.
-14-
<PAGE>
ITEM 7A. QUALITATIVE AND QUANTITAVE DISCLOSURES ABOUT MARKET RISK
Approximately $18 million of the Company's revenues for the year ended
December 31, 1997 and $70 million of its total assets as of December 31, 1997
were denominated in French Francs. Substantially all of the Company's
approximately $36 million of indebtedness at December 31, 1997 was denominated
in French Francs at a fixed interest rate of 5.5%. The Company may from time to
time enter into forward or option contracts to hedge the related foreign
exchange risks. The Company does not enter into market risk sensitive
transactions for trading or speculative purposes.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
-15-
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
and Stockholders of Bolle Inc.
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of operations, of comprehensive income (loss),
of stockholders' equity and of cash flows present fairly, in all material
respects, the financial position of Bolle Inc. and its subsidiaries at
December 31, 1997 and 1996, and the results of their operations and their cash
flows for each of the three years in the period ended December 31, 1997, in
conformity with generally accepted accounting principles. These financial
statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform
the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on
a test basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for the
opinion expressed above.
As discussed in Notes 1 and 2, on March 11, 1998, the Company's
parent, Lumen Technologies, Inc. (formerly BEC Group, Inc.), distributed the
Company's stock to Lumen shareholders via a spinoff. Contemporaneously with
the Spinoff, certain assets and liabilities were transferred from Lumen to the
Company and a portion of the Company's indebtedness to related parties was
contributed to the capital of the Company, resulting in a decrease in current
liabilities of approximately $16 million and an increase in stockholders'
equity of approximately $13 million.
PRICE WATERHOUSE LLP
Dallas, Texas
April 15, 1998
-16-
<PAGE>
BOLLE INC.
CONSOLIDATED BALANCE SHEETS
(AMOUNTS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------
ASSETS 1997 1996
---- ----
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 1,204 $ 311
Trade receivables from related parties (Note 14) 1,120
Trade receivables, less allowances of $857 and $445 11,332 4,895
Inventories 11,734 8,388
Prepaid and other current assets 1,617 822
-------------- -------------
Total current assets 27,007 14,416
Property and equipment, net 4,687 534
Trademark, net 39,029
Goodwill and other intangible assets, net 23,447 646
Other assets 527 28
-------------- -------------
Total assets $ 94,697 $15,624
============== =============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 6,247 $ 3,488
Indebtedness to related parties (Note 10) 35,782 1,420
Accrued compensation 1,111 146
Other accrued expenses 4,803 827
-------------- -------------
Total current liabilities 47,943 5,881
Deferred tax liability 14,000
Other long-term liabilities 2,856
-------------- -------------
Total liabilities 64,799 5,881
-------------- -------------
Mandatorily redeemable preferred stock--redemption value $11,055;
par value $.01; 64,120 shares authorized, issued and outstanding 11,055
Stockholders' equity:
Investment by stockholder 9,743
Common stock--par value $.01; 25,000 shares authorized, 2,000
shares issued and outstanding
Additional paid-in capital 23,960
Cumulative translation adjustment (462)
Accumulated deficit (4,655)
---------- ----------
Total stockholders' equity 18,843 9,743
Total liabilities, mandatorily redeemable preferred stock ---------- ----------
and stockholders' equity $ 94,697 $ 15,624
========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
-17-
<PAGE>
BOLLE INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(AMOUNTS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
----------------------------------------------------
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Net sales $ 32,160 $ 24,425 $ 24,829
Costs and expenses:
Costs of sales 15,354 12,130 12,181
Selling, general and administrative 12,584 8,105 7,610
expenses
Advertising and sponsoring expenses 3,758 3,269 2,665
Merger and acquisition integration
related expenses 3,750 3,050
Interest (income) expense 963 (256) (302)
Other (income) expense (693) (450) 48
----------------- -------------- --------------
Total costs and expenses 35,716 22,798 25,252
----------------- -------------- --------------
Income (loss) before income taxes (3,556) 1,627 (423)
Provision for income taxes 1,099 635 364
----------------- -------------- --------------
Net income (loss) $ (4,655) 992 (787)
================= ============== ==============
Basic and diluted earnings (loss) per share $ (2,586.11) $ 9,920.00 $ (0.22)
================= ============== ==============
Weighted average shares outstanding 1,800 100 3,510,624
================= ============== ==============
</TABLE>
See accompanying notes to consolidated financial statements.
-18-
<PAGE>
BOLLE INC.
STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(Amounts in thousands)
FOR THE YEAR ENDED DECEMBER 31,
-------------------------------
1997 1996 1995
-------- -------- --------
Net income (loss) $(4,655) $ 992 $ (787)
Foreign currency translation adjustments (462)
Reclassification adjustment - (before taxes)
------- ------- -------
Comprehensive income (loss) before tax (5,117) $ 992 (787)
Other comprehensive income tax effect 142
------- ------- -------
Comprehensive income (loss) $(4,975) $ 992 $ (787)
======= ======= =======
See accompanying notes to consolidated financial statements.
-19-
<PAGE>
BOLLE INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
(Amounts in thousands, except share data)
<TABLE>
<CAPTION>
COMMON STOCK
----------------- ADDITIONAL CUMULATIVE
PAR PAID-IN ACCUMULATED TRANSLATION TOTAL
SHARES VALUE CAPITAL DEFICIT ADJUSTMENT EQUITY
------ ----- ---------- --------- ----------- ------
<S> <C> <C> <C> <C> <C> <C>
Balance - December 31, 1994 $13,433
-----------
1995:
Net loss (787)
Compensation expense
accrued for stock options 124
-----------
Balance - December 31, 1995 12,770
1996:
Net income 992
Dividend to Lumen (4,019)
-----------
Balance-December 31, 1996 $9,743
===========
1997:
Beginning balance -
January 1, 1997 $9,743 $9,743
Capitalization of Bolle Inc. -
February 3,1997 1,900 -- 10,915 10,915
===========================================================================================================
Common stock issued
in connection
with Bolle
France acquisition 100 -- 3,302 3,302
Net income (loss) $(4,655) (4,655)
Cumulative
translation
adjustment $(462) (462)
------------ -------- ------------- ----------- --------- -------
Balance - December 31, 1997 2,000 -- $ 23,960 $(4,655) $(462) $18,843
============ ======== ============= =========== ========= =======
</TABLE>
See accompanying notes to consolidated financial statements.
-20-
<PAGE>
BOLLE INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31
---------------------------------
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ (4,655) $ 992 $ (787)
Adjustments to reconcile income (loss) to net cash provided
(used) by operating activities:
Merger and acquisition integration related 1,823 99
expenses, net of payments
Depreciation and amortization 1,477 386 254
Bad debt expense 489 73 183
Loss (gain) on sale of property and equipment 19 1
Changes in current assets and liabilities (net of effect of
companies acquired):
Accounts receivable 2,515 821 (203)
Receivables from related parties (1,120) (736) 736
Inventories 2,821 (1,470) (2,063)
Other assets (726) 291 (528)
Accounts payable 2,584 1,135 (323)
Accrued expenses and other (4,128) (191) (176)
-------- -------- --------
Net cash provided (used) by operating activities 1,099 1,302 (2,808)
-------- -------- --------
Cash flows from investing activities:
Cash expended in acquisitions, net of cash received (33,290)
Capital expenditures (665) (319) (131)
Proceeds from sale of fixed assets 65 2
Non-compete agreement and intangible assets (100) (2) (815)
-------- -------- --------
Net cash used by investing activities (33,990) (319) (946)
-------- -------- --------
Cash flows from financing activities:
Proceeds (payments) from long-term obligations (18) (21) (78)
Proceeds (payments) on indebtedness to related parties 34,362 (1,000) (1,600)
Proceeds from issuance of common stock (21)
-------- -------- --------
Net cash provided (used) by financing activities 34,344 (1,021) (1,699)
-------- -------- --------
Effect on cash of changes in foreign exchange rates (560)
Net increase (decrease) in cash 893 (38) (5,453)
Cash and cash equivalents at beginning of period 311 349 5,802
-------- -------- --------
Cash and cash equivalents at end of period $ 1,204 $ 311 $ 349
======== ======== ========
</TABLE>
(continued)
-21-
<PAGE>
Interest paid $ 46 $ 5 $ 42
Income taxes paid 2,635 * *
o Income taxes were paid by the Company's parent for the years ended
December 31, 1995 and 1996 as it has been part of a U.S. tax group
since 1995. In 1997, only the Company's domestic income taxes were
paid by the Parent on behalf of the Company. Accordingly, the income
taxes paid by the Company in 1997 represent foreign income taxes.
Noncash transactions:
1997
o The acquisition of Bolle France discussed in Note 3 was funded
through a combination of cash, equity and debt. The fair values of
the assets and liabilities at the dates of acquisition are presented
as follows:
Cash $ 1,294
Accounts receivable 9,441
Inventories 6,167
Other current assets 388
Property and equipment 3,949
Goodwill 22,642
Trademark 40,000
Other assets 181
Short-term debt (175)
Accounts payable and accrued liabilities (9,756)
Deferred tax liability (14,000)
Other long-term liabilities (1,896)
1996 and 1995
o During the fourth quarter of 1996, Bolle America forgave the
repayment of a $4,019 advance made to Lumen during the year. The
forgiveness of the advance was characterized as a dividend in 1996.
o There were no non-cash transactions during the year ended December
31, 1995.
(See accompanying notes to consolidated financial statements)
-22-
<PAGE>
BOLLE INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA, UNLESS OTHERWISE NOTED)
NOTE 1 -- SPINOFF SUBSEQUENT TO YEAR END
At December 31, 1997 Bolle Inc. (the "Company") was a subsidiary of
Lumen Technologies, Inc. (formerly known as BEC Group, Inc.)("Lumen"). On
March 11, 1998, Lumen distributed the stock of Bolle Inc. to Lumen's
shareholders (the "Spinoff") and the Company began trading on the NASDAQ
National Market under the symbol "BEYE" on March 12, 1998.
In connection with the Spinoff, pursuant to a Bill of Sale and
Assignment Agreement entered into between Lumen and the Company immediately
prior to the consummation of the Spinoff (the "Contribution Agreement"), (i)
Lumen assigned to the Company all of Lumen's assets other than assets related
to the ORC Business (as defined in the Contribution Agreement) and certain
other specified assets retained by Lumen; and (ii) the Company assumed all of
Lumen's liabilities prior to the Spinoff other than those related to the ORC
Business. Pursuant to this agreement, approximately $17 million of the
Company's indebtedness to related parties was contributed to the capital of
the Company and the remaining balance was refinanced via a bank credit
facility.
In connection with the Spinoff, the Company assumed all obligations
and liabilities of Lumen to each of Maurice Bolle, Robert Bolle, Franck Bolle,
Patricia Bolle Passaquay, Brigitte Bolle and Christelle Roche (collectively,
the "Sellers," and each a "Seller") incurred by Lumen in connection with the
purchase of Bolle France and Lumen was released from all such obligations or
liabilities. In addition, each Seller conveyed to the Company all shares of
Series A Preferred Stock of Lumen (the "Lumen Preferred Stock") held by such
Seller and the Company issued in exchange to each Seller, shares of its Series
B Preferred Stock (the "Bolle Series B Preferred Stock") in proportion to the
number of shares of Lumen Preferred Stock conveyed by such Seller to the
Company. No shares of Bolle Common Stock were issued to the holders of
outstanding shares of Bolle Series B Preferred Stock pursuant to the Spinoff.
Lumen canceled all warrants (the "Lumen Warrants") and the Company issued in
exchange to each holder of canceled Lumen Warrants, warrants to purchase Bolle
Common Stock (the "Bolle Warrants") in proportion to the number of Lumen
Warrants held by such holder prior to the cancellation. No shares of Bolle
Common Stock were issued to holders of outstanding Bolle Warrants pursuant to
the Spinoff.
NOTE 2 -- GENERAL INFORMATION, BUSINESS AND BASIS OF PRESENTATION
GENERAL INFORMATION
The Company was organized on February 3, 1997 to effect the July 1997
acquisition by Lumen of Holding B.F. (hereinafter referred to as "Bolle
France"), the French holding company that owned the Bolle design,
manufacturing and certain distribution interests, including the worldwide
rights to the Bolle(Registered Trademark) brand. The Company is a holding
company, the principal subsidiaries of which are Bolle America, Inc. ("Bolle
America") and Bolle France. Bolle America was acquired by Lumen in November
1995 in a transaction accounted for as a pooling of interests.
The Company and Lumen entered into a management services agreement
(the "Management Agreement") contemporaneously with the Spinoff pursuant to
which certain executives of Lumen will provide key management services to the
Company for an initial term of three years. The agreement is thereafter
automatically renewed for successive one-year periods until terminated by
either party upon at least 90 days written notice prior to the expiration of
the initial, or any renewal, term then in effect.
BUSINESS
Bolle Inc. is a vertically integrated, designer, manufacturer and
marketer of Bolle(Registered Trademark) premium
-23-
<PAGE>
sunglasses, goggles, and tactical and safety eyewear. Products are
manufactured by Bolle France in Oyonnax, France and through subcontractors and
sold to distributors or direct customers primarily located in the United
States, Europe, Australia and Canada.
BASIS OF PRESENTATION
Bolle America was a wholly owned subsidiary of Lumen at the time the
Company was formed. The net assets of Bolle America were contributed to the
Company by Lumen as of July 1, 1997. At that time, the net book value of Bolle
America was $11,038 including retained earnings of $359. Accordingly, the
financial position and results of operations of Bolle Inc. presented herein
are those of the Company's predecessor for accounting purposes, Bolle America,
prior to the acquisition of Bolle France. The results of operations of Bolle
France are included beginning on July 9, 1997, (the closing date of the Bolle
France acquisition described in Note 3 below).
For the periods subsequent to the acquisition of Bolle America by
Lumen, certain revenues and expenses reflected in the financial statements
include allocations of certain corporate expenses from Lumen. These
allocations include income from Lumen's investment in Eyecare Products Plc, as
well as expenses for general management, treasury, legal, tax, financial
reporting, auditing, insurance, investor and public relations and information
management. Allocations were primarily based on relative sales. These
financial statements also reflect the allocation of certain corporate assets
including those relating to taxes.
Management believes that the foregoing allocations were made on a
reasonable basis; however, the allocations of costs and expenses do not
necessarily indicate the costs that would have been or will be incurred by the
Company on a stand-alone basis. Also, the financial information included in
the financial statements may not necessarily reflect the financial position,
results of operations and cash flows of the Company in the future or what the
financial position and results of operations would have been if it had been a
separate, stand-alone company during the periods covered.
The accompanying financial statements do not give effect to the
Contribution Agreement, which was executed subsequent to year end. On a
proforma basis, had the Contribution Agreement been effective at December 31,
1997, the effect would have been to increase assets by $10,680 (unaudited),
decrease liabilities by $11,615 (unaudited), increase mandatorily redeemable
preferred stock by $9,294 (unaudited), and increase equity $13,001
(unaudited).
For periods prior to 1997, equity is presented in the accompanying
consolidated balance sheets and statements of stockholders' equity on one
line. Presentation of traditional equity categories is not considered
meaningful. Effective January 1, 1997, equity is presented in the traditional
manner.
NOTE 3 -- ACQUISITIONS
On July 9, 1997, the Company acquired, in a transaction accounted for
as a purchase, all of the shares of Bolle France which included Bolle France
and several consolidated and unconsolidated affiliates, for a total purchase
price of approximately $58,235, comprised of cash of $31,000, Lumen Series A
mandatorily redeemable preferred stock of $9,294, Company mandatorily
redeemable preferred stock of $11,055 and Company common stock of $3,302, as
well as direct acquisition costs of $3,585. Where such consideration was
denominated in French Francs, the July 10, 1997 exchange rate of 5.9197 was
used to translate to US Dollars. A summary of the allocation of purchase price
is as follows:
Current assets $17,290
Property and equipment 3,949
Goodwill 22,642
Trademarks 40,000
Other assets 181
Current liabilities (9,931)
Long term liabilities (15,896)
-------
$58,235
=======
-24-
<PAGE>
The land included in property and equipment was purchased from the
Sellers as part of a separate contract, therefore its specific purchase price
of $422 is included as its fair value in property and equipment. The building
was revalued based on management estimates resulting in a step up of $1,824 in
value. This amount is also included in property and equipment. For all other
property and equipment purchased, book value was assumed to approximate fair
value.
Based upon an independent appraisal obtained by the Company, the
Bolle(R) trademark was valued at $40,000. The remainder of the excess of
purchase price over book value of $22,642 was allocated to goodwill. The
trademark and goodwill are being amortized over 40 years (Note 5).
Management does not expect material changes to the purchase
accounting.
NOTE 4 -MERGER AND ACQUISITION INTEGRATION RELATED EXPENSES
Acquisition integration related expenses of $3.75 million in 1997
represent the following expenses incurred in connection with the integration
of Bolle France and creation of Bolle Inc.: (i) a reserve for the return of
product from the Company's owned and non-owned distributors in conjunction
with the redefining and streamlining of Bolle Inc.'s new product line, and
(ii) the legal, production and marketing expenses related to the set up of a
new logo for Bolle(R) worldwide and the creation of the first worldwide
catalog.
Merger related expenses in 1995 represent $3.1 million of transaction costs
associated with the pooling of interests between Lumen and Bolle America
discussed in Note 1.
NOTE 5 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The consolidated financial statements include the accounts of the
Company and its majority-owned subsidiaries. Investments in less than 50%
owned entities and certain greater than 50% owned entities are accounted for
by the equity method. Investments in less than 20% owned entities are
accounted for by the cost method (Note 9). All significant intercompany
transactions, profits and accounts are eliminated in consolidation.
Cash Equivalents
Cash equivalents include all temporary cash investments with original
maturities of three months or less. The carrying value is equal to market
value.
Revenue Recognition
The Company recognizes revenue at the time of shipment with estimates
provided for returns based on historical experience.
Concentration of Credit Risk and Major Customers
In the opinion of management, concentration of credit risk varies
significantly on a country-by-country basis. With the acquisition of Bolle
France, the Company now sells to customers throughout the world, with the
majority of sales to customers in the United States, Europe, Australia and
Canada.
Credit is generally extended based on an evaluation of the customer's
financial condition and its relationship with the Company, and collateral is
generally not required. Credit risk is affected by conditions or occurrences
in the local economies and relative strength of the local environment in each
of the countries where the Company's customers operate. The Company
establishes an allowance for doubtful accounts based on factors surrounding
the credit risk of specific customers, historical trends and other
information.
For the years ended December 31, 1996 and 1995, the Company had sales
to a specific customer located in
-25-
<PAGE>
the United States that represented 14% and 11% of net sales. For the year
ended December 31, 1997, no single customer contributed more than 10% of the
Company's net sales.
Foreign Currency Translation
For subsidiaries which operate in a local currency environment,
assets and liabilities are translated into U.S. dollars at year end exchange
rates in effect at the balance sheet date. Income and expense items are
translated at average rates prevailing during the year. Translation
adjustments for these subsidiaries are accumulated in a separate component of
equity.
Foreign Currency Transactions
Prior to July 1997, the Company had entered into a series of
agreements with Bolle France providing a series of fixed exchange rates on the
French franc/U.S. dollar exchange rate for inventory purchases from them. From
time to time, the Company may also enter into foreign currency forward
contracts to hedge against the effects of foreign currency fluctuations on
inventory purchases and the settlement of trade accounts payable. There were
no such contracts in effect subsequent to July 1, 1997. Foreign currency
transaction gains and losses are recorded in other income when the underlying
transactions are settled.
Inventories
Inventories, which consist primarily of raw materials and finished
goods held for resale, are stated at the lower of cost or market value. Costs
include material, direct labor, and overhead. The Company determines inventory
value on an average cost basis.
Warranties
Certain sales are subject to warranty against defects in material and
workmanship. The Company provides for such potential future costs at the time
the sales are recorded based on historical experience.
Property and Equipment
Property and equipment are stated at cost. Additions and improvements
are capitalized. Maintenance and repairs are expensed as incurred.
Depreciation is computed on a straight line or accelerated basis for financial
reporting purposes, and on an accelerated basis for tax purposes, over the
estimated useful lives of the assets. Useful lives range from 3 to 7 years for
office equipment, fixtures and molds and up to 30 years for buildings. Asset
cost and accumulated depreciation amounts are removed for dispositions and
retirements, with resulting gains and losses reflected in earnings.
Trademark, Goodwill and Other Intangible Assets
Trademark represents the Bolle(Registered Trademark) brand. Goodwill
represents the excess cost over the fair value of net assets acquired in
business combinations accounted for under the purchase method. Other
intangible assets consist principally of a non-compete agreement.
Trademark, goodwill and other intangible assets are amortized on a
straight line basis over estimated useful lives which approximate 40 years for
the Bolle trademark, 40 years for goodwill and from 3-10 years for other
identifiable intangibles. At each balance sheet date, the Company evaluates
the realizability of trademark, goodwill and other intangible assets based upon
expectations of undiscounted cash flows of each subsidiary having a
significant trademark, goodwill or other intangible asset balance. Should this
review indicate that trademark, goodwill or other intangible assets will not
be recoverable, the Company's carrying value of the trademark, goodwill or
other intangible assets will be reduced by the estimated shortfall of
discounted cash flows. Based upon its most recent analysis, the Company
believes that no impairment of the trademark, goodwill or other intangible
assets exists.
Impairment of Long-Lived Assets
-26-
<PAGE>
At each balance sheet date, the Company evaluates the realizability
of long-lived assets based on expectations of undiscounted cash flows. Should
this review indicate that the cost of long-lived assets may be impaired, an
evaluation of recoverability would be performed. If an evaluation is required,
the estimated future undiscounted cash flows associated with the asset would
be compared to the carrying amount of the asset to determine whether a
write-down to market value is required.
Income Taxes
Deferred income taxes are provided on the difference in basis of
assets and liabilities between financial reporting and tax returns using
enacted tax rates. A valuation allowance is recorded when realization of
deferred tax assets is not assured.
Earnings Per Share
Basic earnings per share is computed pursuant to SFAS No. 128
"Earnings Per Share," by dividing net earnings or loss available
to common stockholders by the weighted average number of outstanding
shares of common stock. Diluted earnings per share includes weighted average
common stock equivalents outstanding during each year in the denominators,
unless the effect is antidilutive. Common stock equivalents consist of the
dilutive effect of common shares which may be issued upon exercise of stock
options, warrants or conversion of debt. Bolle America was a public company
from January 1, 1995 to November 2, 1995 with 4,212,729 shares outstanding at
the date of acquisition by Lumen. Lumen cancelled all but 100 shares upon
acquisition. Such shares remained unchanged until the capitalization of Bolle
Inc. in February 1997 when 1,900 additional shares were issued. As a wholly
owned subsidiary, the Company had no common stock equivalents. The historical
actual shares issued are used to calculate weighted average shares outstanding
during 1995 and 1996. Since the Company has no dilutive securities outstanding
at December 31, 1997, basic earnings per share is equivalent to diluted
earnings per share.
In accordance with the Securities and Exchange Commission Staff
Accounting Bulletin No. 98, the weighted average number of outstanding common
shares is calculated based on the historical timing of the common stock
transactions.
Pension and post retirement indemnity
The Employees of Bolle America currently participate in a 401(k)
Savings plan administered by Lumen. No pension, post-retirement or other
benefit arrangements have been established by Bolle, Inc.
A provision of $150 is recorded for the termination indemnity of the
legal employees of Bolle France and its subsidiaries. These indemnities are
due to employees who leave Bolle France or its subsidiaries at retirement age
(65) and depend upon the length of the employee's service and salary level.
The obligation, which is not funded, is calculated using an actuarial method
(discount rate of 6.19%, salary increase of 2.5%) and considers staff turnover
and mortality statistics until retirement age. There are no other pensions,
post-retirement or post-employment obligations to Bolle France as such
employee benefits are provided by the French Social Security System.
Reclassifications
Certain amounts in 1995 and 1996 financial statements have been
reclassified to conform with the 1997 presentation.
Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reported period. Actual results could differ from these estimates.
Fair Value
-27-
<PAGE>
At December 31, 1997, the carrying value of financial instruments
such as trade receivables, accounts payable and short term debt approximated
their fair values based on the short term maturities of these instruments.
New Accounting Pronouncements
SFAS No. 129, "Disclosure of information about Capital Structure"
reiterates the disclosure requirements set forth in existing pronouncements as
they relate to an entity's capital structure and contains no changes in
disclosure requirements other than making them applicable to all entities.
Because the Company complies with the disclosure requirements of existing
pronouncements, there was no impact of the adoption of SFAS No. 129 in the
Company's financial statements.
SFAS No. 130, "Reporting Comprehensive Income", establishes
guidelines for all items that are to be recognized under accounting standards
as components of comprehensive income to be reported in the financial
statements. The statement is effective for all periods beginning after
December 15, 1997 and reclassification of financial statements for earlier
periods presented will be required for comparative purposes. The Company has
adopted SFAS No. 130 in its financial statements for the year ended December
31, 1997.
SFAS No. 131, "Disclosures about Segments of an Enterprise and
Related Information", establishes standards for reporting of operating segment
information in annual financial statements and requires that those enterprises
report selected information about operating segments in interim financial
statements issued to shareholders. The statement is effective for all periods
beginning after December 15, 1997. The Company presently reports as one
operating segment and two geographical segments, and expects to continue to do
so. The Company plans to adopt SFAS No. 131 in its financial statements for
the year ended December 31, 1998.
NOTE 6 -- INVENTORIES
Inventories consist of the following at:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1997 1996
-------------- -------------
<S> <C> <C>
Raw materials $ 1,362 $
Work in progress 2,595
Finished goods 9,595 8,635
Reserves (1,818) (247)
-------------- -------------
$ 11,734 $ 8,388
============== =============
NOTE 7 -- PROPERTY AND EQUIPMENT
Property and equipment consists of the following at:
DECEMBER 31,
----------------------------
1997 1996
-------------- -------------
Land $ 417 $
Buildings 2,169 5
Machinery and equipment 2,197 369
Computer hardware and software 847 593
-28-
<PAGE>
DECEMBER 31,
----------------------------
1997 1996
-------------- -------------
Furniture and fixtures 202 98
-------------- -------------
5,832 1,065
Less: accumulated depreciation (1,145) (531)
-------------- -------------
$ 4,687 $ 534
============== =============
</TABLE>
Depreciation expense for the years ended December 31, 1997, 1996 and
1995 was $705, $216 and $172, respectively.
The minimum future rental expense for property and buildings under
operating lease is as follows:
1998 $146
1999 73
2000 73
2001 73
2002 73
Thereafter 20
-----
$458
=====
NOTE 8 -- TRADEMARK, GOODWILL AND OTHER INTANGIBLE ASSETS
Trademark, goodwill and other intangible assets and related accumulated
amortization consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------
1997 1996
-------------- -------------
<S> <C> <C>
Goodwill $ 22,979 $
Non compete agreement 900 800
Other identifiable intangible assets 16 16
-------------- -------------
23,895 816
Less Accumulated amortization (448) (170)
-------------- -------------
$ 23,447 $ 646
========== ==========
Trademark $ 39,523 $
Less: Accumulated amortization (494)
-------------- -------------
$ 39,029 $
========== ==========
</TABLE>
The Company entered into a non-compete agreement with the former
president of Bolle America for the period November 2, 1995 through December
31, 2005. The Company paid $800 at November 2, 1995, $100 in 1997 and will pay
$100 per year from January 1, 1998 to 2005.
Amortization expense for the years ended December 31, 1997, 1996 and
1995 was $772, $170 and $82, respectively.
NOTE 9 -- EQUITY IN AFFILIATED COMPANIES
The Company sells its products to three related party distributors,
Bolle Sunglasses UK, Bolle Japan and Bolle Canada. All investments are
accounted for under the equity method of accounting. The Company's equity in
the net
-29-
<PAGE>
assets of these entities is approximately $75. No equity income or loss was
recognized during 1997. Subsequent to year end the Company has acquired 100%
of Bolle Canada and entered into a letter of intent to acquire 100% of Bolle
Sunglasses U.K.
NOTE 10 --CREDIT FACILITIES
During the years ended December 31, 1997, 1996 and 1995, the Company
was party to a revolving intercompany credit arrangement with Lumen whereby
interest was earned at a rate of 5% on excess cash and interest was charged at
a rate of 8% on outstanding borrowings. Since the acquisition of Bolle France,
the revolving intercompany credit arrangement was adjusted to allow for French
Franc denominated borrowings by Bolle France at a French market rate of 5.5%.
This rate will be reset annually. The debt incurred to finance the cash
portion of the consideration has been pushed down to Bolle Inc. under this
arrangement.
On March 11, 1998, in connection with the Spinoff described in Note
1, the Company entered into a $28 million credit facility (the "New
Agreement") with a syndicate of lenders led by NationsBank N.A. The New
Agreement provides for a $10 million Term Loan denominated in French Francs,
payments due quarterly over five years, and a revolving line of credit of $18
million, including a letter of credit subfacility of $5 million. The interest
rate applicable to the facilities will equal the Base Rate or the Eurodollar
Rate or the French Franc Libor Rate (each as defined in the New
Agreement), as the Company may from time to time elect. The Base rate will
generally be equal to the sum of (a) the greater of (i) the prime rate as
announced from time to time by NationsBank or (ii) the Federal Funds Rate plus
one-half percent (0.5%) and (b) a margin ranging form 0% to 1.0% depending on
the Company's satisfaction of certain financial criteria. The Eurodollar Rate
will generally be equal to the interbank offered rate, as adjusted, to give
effect to reserve requirements, plus a margin ranging from 1.0% to 2.5%,
depending upon the Company's satisfaction of certain financial criteria. The
terms of the New Agreement require the Company to maintain certain
financial ratios.
NOTE 11 -- INCOME TAXES
The Company accounts for income taxes under SFAS No. 109, "Accounting
for Income Taxes". SFAS No. 109 requires an asset and liability approach to
accounting for income taxes. The Company has reorganized the structure of
various entities comprising Bolle France so that Bolle France will file one
consolidated tax return for 1998 and subsequent thereto. Following the March
1998 Spinoff of the Company, Bolle Inc. will file its consolidated tax return
separate from Lumen.
Income(loss) before provision for income taxes consists of the
following for the periods ended:
DECEMBER 31,
--------------------------------------------
1997 1996 1995
-------------- -------------- --------------
U.S. $ (4,713) $1,627 $(423)
Foreign 1,157
-------------- -------------- --------------
$ (3,556) $1,627 $(423)
============== ============== ==============
The provision for income taxes, prepared as if Bolle were a stand
alone company, consists of the following for the periods ended:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------------------------
1997 1996 1995
-------------- -------------- --------------
UNITED STATES:
Current
<S> <C> <C> <C>
Federal $ $542 $616
State and local 81 103
Deferred 445 12 (355)
-------------- -------------- --------------
445 635 364
-------------- -------------- --------------
FOREIGN:
Current 1,803
-30-
<PAGE>
DECEMBER 31,
--------------------------------------------
1997 1996 1995
-------------- -------------- --------------
UNITED STATES:
Current
Deferred (1,149)
-------------- -------------- --------------
654
-------------- -------------- --------------
Total provision for income taxes $ 1,099 $635 $364
============== ============== ==============
</TABLE>
The Company's effective tax rates differ from the Federal statutory
rate as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Expected tax (benefit) at statutory rate (34.0%) 34.0% (34.0)%
State income taxes (benefit) (3.0%) 3.5% 16.1%
Non-deductible and merger related expenses 7.9% 104.0%
Valuation allowance 60.0%
Other, net 1.5%
------ ----- -----
30.9% 39.0% 86.1%
====== ===== =====
</TABLE>
Significant components of deferred income taxes are as follows for
the periods ended:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------------
1997 1996
--------------- --------------
Current deferred tax assets:
<S> <C> <C>
Net operating loss carry forward $ 828
Accounts receivable 61 $168
Non qualified stock options 54 54
Inventories 1,186 129
Accrued expenses 362 83
--------------- --------------
Total gross current deferred tax assets 2,491 434
Non-current deferred tax assets:
Intangibles 12
Accrued expenses 440
Fixed assets 23 6
--------------- --------------
Total non-current deferred tax assets 463 18
--------------- --------------
Gross deferred tax asset 2,954 452
Valuation allowance (2,132)
--------------- --------------
Deferred tax asset 822 452
--------------- --------------
Current deferred tax liability:
Other liabilities (155)
Non current deferred tax liability:
Intangibles (14,000)
--------------- --------------
Gross deferred tax liability (14,155)
--------------- --------------
Net deferred tax asset (liability) $ (13,333) $452
=============== ==============
</TABLE>
The Company recorded gross deferred tax assets of $2,954 and $452 for
the years ended December 31, 1997 and 1996, respectively. A valuation
allowance has been established for the entire net tax benefit associated with
substantially all carryforwards and temporary differences at December 31,
1997, for the domestic operations, as their realization was not assured. The
effect on the income tax provision related to the valuation allowance was a
charge of $2,132 for 1997. Net operating loss carryforwards amount to
approximately $2.2 million and $0 at December 31, 1997 and 1996, respectively.
The net operating loss carryforwards begin to expire in the year 2011.
NOTE 12 -- MANDATORILY REDEEMABLE PREFERRED STOCK
In connection with the acquisition of Bolle France described in Note
3, the Company issued 64,120 shares of Bolle Series A Preferred Stock with a
redemption value of $11,055. Shares of the Bolle Series A Preferred Stock will
be redeemed by the Company on the third anniversary of their issuance, subject
to the provisions of the New Agreement. Prior to that, the Company
may redeem any shares of Bolle Series A Preferred Stock at any time. Further,
-31-
<PAGE>
in the event that the Company's EBITDA exceeds $18,400 for the fiscal year
1998 or $24,700 for the fiscal year 1999, the Company will be obligated to
redeem any shares of the Bolle Series A Preferred Stock then outstanding,
provided that in each case the Company remains in compliance with the financial
covenants contained in any senior indebtedness in effect as of June 4, 1997 as
amended after giving effect to such redemption and $2,000 is available for
borrowing by the Company under the New Agreement. The carrying value of the
Bolle Series A Preferred Stock approximates its fair value.
NOTE 13 -- STOCK OPTION PLANS
Until the Spinoff, the Company participated in the Lumen stock
incentive plan. Such options were exercisable into common stock of Lumen.
Accordingly, Lumen disclosures for the Company employees included in the Lumen
stock incentive plan are shown below. All option information has been restated
to give effect to the May 3, 1996 and March 12, 1998 reverse stock splits.
Following the March 1998 Spinoff, the Company adopted its own separate stock
option and incentive plan similar to the Lumen plan.
The Company applies APB Opinion No. 25 and related Interpretations in
accounting for its stock option plans, which are described below. Accordingly,
no compensation cost has been recognized for its stock option plans. Had
compensation cost been determined based on the fair market value at the grant
dates for awards to Company employees under those plans consistent with the
method provided by SFAS No. 123, the Company's net income (loss) and net
income (loss) per share would have been as follows:
DECEMBER 31,
--------------------------------------------
1997 1996 1995
-------------- -----------------------------
Net income (loss):
As reported $(4,655) $992 $(787)
Pro forma $(4,884) $706 $(1,398)
Basic and diluted
earnings (loss)
per share:
As reported $(2,586.11) $9,920.00 $(0.22)
Proforma $(2,713.33) $7,060.00 $(0.40)
The fair value of each option grant is estimated on the date of grant
using the Black-Scholes option pricing model with the following weighted
average assumptions used for all grants:
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Dividend yield 0% 0% 0%
Expected volatility 50% 64% 64%
Risk free rate of return 6.5% 5% 5%
Expected turnover 7% 7% 7%
Expected term 5 years 5 years 5 years
</TABLE>
The weighted average fair values of all Benson Eyecare Corporation
(Lumen's predecessor, "Benson") options granted during the years ended December
31, 1996 and 1995 were $10.24 and $9.60, respectively. The weighted average
fair value of all Lumen options granted during 1997 and 1996 was $8.98 and
$9.96, respectively.
Lumen may grant nonqualified stock options, incentive stock options
or stock appreciation rights to officers, directors, consultants and key
employees of Lumen.
As a result of a merger and asset sale on May 3, 1996, all Benson
options were canceled. Option holders received consideration (including new
Lumen options) for their Benson options. Accordingly, all options were issued
under the Lumen Stock Compensation Plan, on or after May 3, 1996.
A summary of the transactions for Benson options held by Company
employees is as follows:
-32-
<PAGE>
<TABLE>
<CAPTION>
OPTION PRICE RANGE PER BENSON NUMBER OF EXPIRATION DATE
SHARE BENSON SHARES
<S> <C> <C>
Outstanding at 12/31/94
Granted $12.26-$18.00 126
Exercised --
Cancelled $18.00-$18.00 (2)
----------------
Outstanding at 12/31/95 $12.26-$18.00 124 1996 - 2000
Granted --
Exercised -- --
Cancelled -- --
Cancelled in connection with merger and asset sale $12.26-$18.00 (124)
----------------
Outstanding at 12/31/96 --
================
</TABLE>
-33-
<PAGE>
A summary of the transactions for Lumen options held by Company
employees is as follows:
<TABLE>
<CAPTION>
WEIGHTED AVERAGE NUMBER OF
EXERCISE LUMEN OPTIONS
PRICE PER LUMEN -------------
SHARE
----------------
<S> <C> <C>
Outstanding at 12/31/95 --
Granted 9.96 99
Exercised --
Cancelled 9.96 (15)
-------------
Outstanding at 12/31/96 9.96 84
Granted 8.98 439
Exercised 10.34 (2)
Forfeited 10.12 (27)
-------------
Outstanding at 12/31/97 9.08 494
=============
</TABLE>
Options generally vest evenly over a three-or four-year period
beginning one year from the date of grant and expire seven years from the date
of grant. The 34 exercisable Lumen options held by Company employees at
December 31, 1997 had an option price range of $6.78 -- $10.25 and a weighted
average exercise price of $9.42 per Lumen share. The weighted average
remaining contractual life of the 494 Lumen options held by Company employees
outstanding at December 31, 1997 was approximately 6.2 years.
NOTE 14 -- RELATED PARTY TRANSACTIONS
On March 11, 1998, in conjunction with the Spinoff, (see Note 1) the
Company executed a Management Services Agreement with certain executives of
Lumen pursuant to which certain executives of Lumen will provide key management
services to the Company. The Management Services Agreement has an initial term
of three years. The agreement thereafter automatically renews for successive
one-year periods until terminated by either party upon at least ninety days
written notice. During the initial term of the Management Services Agreement,
the Company will pay Lumen $720 per year for such services.
With the acquisition of Bolle France, the Company has transactions
with related parties (Lumen, Bolle Sunglasses UK, Bolle Japan and Bolle
Canada), for which transactions and balances have been disclosed under the
captions "Trade receivables from related parties" and "Indebtedness to related
parties." Such transactions are realized at conditions equivalent to those
prevailing for unrelated parties.
NOTE 15 -- COMMITMENTS AND CONTINGENCIES
The Company is subject to various litigation incidental to its
business. Irrespective of any indemnification that may be received, the
Company does not believe that exposure on any matter will result in a
significant impact on the financial position, results of operations or cash
flows of the Company.
-34-
<PAGE>
NOTE 16 -- GEOGRAPHIC INFORMATION
The Company operates in one principal industry segment: the design,
manufacture and marketing of premium sunglasses, goggles and safety and
tactical eyewear. Products are manufactured by Bolle France in Oyonnax, France
and through subcontractors and sold to distributors or direct customers
primarily located in the United States, Europe, Australia and Canada. The
Company had no international sales until the acquisition of Bolle France in
the third quarter of 1997.
<TABLE>
<CAPTION>
Geographic information is as follows:
DECEMBER 31,
-------------------------------------------
1997 1996 1995
------------- ------------- -------------
<S> <C> <C> <C>
Net sales to unaffiliated customers
North America $ 19,769 $24,425 $24,829
Europe 9,207
Other 3,184
------------- ------------- -------------
Total net sales $ 32,160 $24,425 $24,829
============= ============= =============
(Transfers between geographic areas eliminated
consolidation)
North America $ 4,976
Europe 2,941
------------- ------------- -------------
Total transfers $ 7,917 -- --
============= ============= =============
Income (loss) before income taxes
North America $ 285 $921 $ 2,373
Europe 133
Other 46
Interest, merger and acquisition integration
related expenses and other income, net (4,020) 706 (2,796)
------------- ------------- -------------
Total income (loss) before income taxes $ (3,556) $ 1,627 $ (423)
============= ============= =============
Identifiable assets:
North America $ 12,049 $15,624 $16,309
Europe 82,648
Corporate assets
------------- ------------- -------------
Total identifiable assets $ 94,697 $15,624 $16,309
============= ============= =============
</TABLE>
Net sales to unaffiliated customers are classified based on the
location of the customers. Transfers between geographic areas are recorded at
amounts generally above cost and in accordance with the rules and regulations
of the respective governing tax authorities. Income (loss) before income taxes
consists of total net sales less operating expenses and does not include
merger and acquisition integration related expenses, interest and other
income, net. Identifiable assets of geographic areas are those assets used in
the Company's operations in each area.
-35-
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
There were no disagreements with the Company's independent accountants on any
matter of accounting principles or practices, financial disclosure, or
auditing scope or procedure, which if not resolved to such accountants'
satisfaction would have caused them to make reference to the subject matter of
the disagreement in connection with their report.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The following table sets forth the names, ages and positions of the
executive officers and members of, and nominee for election to, the Company's
board of directors. Their respective backgrounds are described following the
table.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
Martin E. Franklin(1)(2) 33 Chairman of the Board of Directors
Gary A. Kiedaisch(1) 51 President, Chief Executive Officer and Director
Ian G. H. Ashken(1)(2) 37 Executive Vice President of Finance and Administration, Chief
Financial Officer, Assistant Secretary and Director
Nora A. Bailey(3)(4) 56 Director
Franck Bolle(1) 41 Director
Patricia Bolle Passaquay(1) 40 Director
David L. Moore(2)(3)(4) 40 Director
David S. Moross(3)(4) 38 Director
- -------------------------------------------------------------------------------------------------------
</TABLE>
(1) Member of Executive Committee
(2) Member of Nominating Committee
(3) Member of Audit Committee
(4) Member of Compensation Committee
-36-
<PAGE>
Directors of the Company are elected annually at the annual meeting
of stockholders. The next annual meeting of stockholders is tentatively
scheduled for May 1998. All of the officers identified above serve at the
discretion of the Board of Directors of the Company. Other than Franck Bolle
and Patricia Bolle Passaquay, who are cousins, there are no family
relationships between any persons identified above.
The following are brief biographies of persons identified above.
Martin E. Franklin was elected Chairman of the Board of Directors of
the Company in February 1997. Mr. Franklin was elected Chairman of the Board
and Chief Executive Officer of Lumen in December 1995 and served as its Chief
Executive Officer from 1995 until March 1998. Mr. Franklin was Chairman of the
Board and Chief Executive officer of BEC's predecessor, Benson Eyecare
Corporation ("Benson") from October 1992 to May 1996 and President from
November 1993 to May 1996. Mr. Franklin has been the Chairman and Chief
Executive Officer of Pembridge Holdings, Inc. since 1990. From 1988 to 1990,
Mr. Franklin was Managing Director of Pembridge Associates, Inc. Both Pembridge
Associates, Inc. and Pembridge Holdings, Inc. specialized in merchant banking
and related services. Mr. Franklin has been Chairman and Chief Executive
Officer of Marlin Holdings, Inc., the general partner of Marlin Capital, L.P.,
since October 1996. Mr. Franklin is non-executive Chairman and a director of
Eyecare Products plc and also serves on the boards of Lumen Technologies, Inc.,
Specialty Catalog Corp. and certain private companies. Mr. Franklin received
his B.A. in Political Science from the University of Pennsylvania.
Gary A. Kiedaisch was appointed President, Chief Executive Officer and
a member of the Board of Directors of the Company and was appointed to its
Board of Directors in July 1997. From 1989 until his appointment as the Chief
Executive Officer of the Company, Mr. Kiedaisch had been President and Chief
Executive Officer of the Mt. Mansfield Company d/b/a Stowe Mountain Resort,
a wholly owned subsidiary of multi-national insurance and financial services
conglomerate American International Group. Prior to his tenure in Stowe, he
held executive positions with several high visibility companies in the winter
sports industry including AMF Head Ski Worldwide, Raichle Monitor USA,
Blizzard North America and Hart Ski Manufacturing Company, where he had
responsibility for worldwide marketing, coordinating and consolidating
distributor networks and unifying worldwide brand identification.
Ian G.H. Ashken, A.C.A. was elected Executive Vice President, Chief
Financial Officer, Assistant Secretary and a Director of the Company in
February 1997. Mr. Ashken was elected Executive Vice President, Chief
Financial Officer, Assistant Secretary and a Director of BEC in December 1995.
Mr. Ashken was Chief Financial Officer of Benson and a director of Benson from
October 1992 to May 1996. Mr. Ashken also served as Benson's Executive Vice
President from October 1994 to May 1996; Secretary from October 1992 to
December 1993; and, Assistant Secretary from December 1993 to May 1996. Mr.
Ashken has been the Executive Vice President and a director of Pembridge
Holdings, Inc. since 1990. Since October 1996, Mr. Ashken has been Vice
Chairman of Marlin Holdings, Inc., the general partner of Marlin Capital, L.P.
Mr. Ashken is a director of Eyecare Products plc. and Lumen Technologies, Inc.
Mr. Ashken received his B.A. (Hons) in Economics and Accounting from the
University of Newcastle in England.
Franck Bolle has been a member of the Board of Directors of the
Company since July 1997. Mr. Bolle was appointed President and Director of
International Operations of Bolle France in July 1997. Mr. Bolle has been a
member of the executive management of Bolle France since 1984 and as such has
shared responsibility with Ms. Passaquay for the day-to-day operations of
Bolle France. Prior to joining Bolle France, Mr. Bolle served as Sales Manager
of a home improvement supplies manufacturer. Mr. Bolle holds a degree in
business administration with a concentration in marketing from Ecole Libre des
Sciences Commerciales Appliquees of Paris, France.
Patricia Bolle Passaquay has been a member of the Board of Directors
of the Company and Director of Export Sales since July 1997. Ms. Passaquay has
been a member of the executive management of Bolle France since 1981 and as
such has shared responsibility with Mr. Franck Bolle for the day-to-day
operations of Bolle France. Ms. Passaquay holds a degree in business
administration with a concentration in marketing from Ecole Libre des Sciences
Commerciales Appliquees of Paris, France.
-37-
<PAGE>
David L. Moore became a member of the Bolle Board in March 1998. Mr.
Moore has been President and Chief Executive Officer of Century 21 Home
Improvements, and for more than fifteen years has been President and Chief
Executive Officer of Garden State Brickface, Inc., a leading New York
metropolitan area residential and commercial remodeling firm. Mr. Moore
received his B.A. in Economics from Amherst College and his M.B.A. from
Harvard University. Mr. Moore also is a director of Lumen Technoloties, Inc.
Nora A. Bailey, Esq. became a member of the Company's Board of
Directors in March 1996. Ms. Bailey is a federal income tax attorney with a
specialty in mergers and acquisitions and has many multinational clients. Ms.
Bailey and her firm from time to time have been engaged to provide legal
advice to the Company. Until 1993, she was a partner in Ivins, Phillips &
Barker in Washington D.C., which she joined in 1972. Ms. Bailey received her
J.D. from the University of Michigan Law School.. Ms. Bailey also is a
director of Lumen Technologies, Inc.
David S. Moross became a member of the Company's Board in March 1998.
Mr. Moross is presently active in the executive management of Whitehall
Financial Group, a holding company that invests throughout the world, and is
a member of its Board of Directors. Mr. Moross has also served as a consultant
and investment strategist to International Management Group. He serves on the
Board of American Phoenix Group of New York and served as President and Chief
Executive Officer of Kalvin-Miller International, Inc., a national insurance
broker. Mr. Moross received his B.A. in economics from the University of Texas
at Austin.
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT.
Section 16(a) of the Securities Exchange Act of 1934, (the "Exchange
Act"" requires the Company's directors and executive officers, and persons who
own more than ten percent (10%) of a registered class of the Company's equity
securities, to file with the Securities and Exchange Commission ("SEC") and
the stock exchange upon which the Company's stock is listed, initial reports
of ownership and reports of changes in ownership of common stock and other
equity securities of the Company. Officers, directors and greater than
ten-percent shareholders are required to SEC regulation to furnish the Company
with copies of all Section 16(a) forms they file. The Company's securities did
not trade publicly until March 12, 1998; consequently, no persons described
above were subject to Section 16(a) reporting requirements, all Section 16(a)
filing requirements applicable to its officers, directors and greater than ten
percent (10%) beneficial owners were complied with.
ITEM 11. EXECUTIVE COMPENSATION
For all of 1997, the executive officers of the Company, other than Gary A.
Kiedaisch, its Chief Executive Officer, were officers of Lumen, and the
compensation of such executive officers was paid by Lumen. Although such
compensation was in part for services rendered to the Company, the full
amounts thereof are provided below because, prior to the Spinoff, the Company
was a subsidiary of Lumen and no apportionment between Lumen and the Company
was made on an ongoing basis.
SUMMARY OF COMPENSATION
The following Summary Compensation Table sets forth information concerning
compensation earned by the Company's Chief Executive Officer and its other
executive officers in the fiscal year ended December 31, 1997.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
--------------
ANNUAL COMPENSATION(1) AWARDS
------------------------------------------
NUMBER OF
SECURITIES
UNDERLYING
SALARY BONUS OPTION/ ALL OTHER
NAME AND PRINCIPAL POSITION YEAR ($) ($) SARS(3) COMPENSATION
- ---------------------------- ------ --------- --------- -------------- ------------
<S> <C> <C> <C> <C> <C>
Gary A. Kiedaisch
Chief Executive Officer ... 1997 103,846 37,500 166,667 0
Martin E. Franklin(2)
Executive Chairman ......... 1997 257,500 300,000 183,333 34,541(4)
Ian G. H. Ashken(2)
Executive Vice President of
Finance and
Administration,
Chief Financial Officer
and Assistant Secretary .. 1997 206,000 168,750 33,333 27,546(4)
</TABLE>
- ------------
(1) The compensation of the Company's executive officers was paid entirely
by Lumen in 1997.
(2) This information reflects the aggregate compensation paid by Lumen for
the services of Messrs. Franklin and Ashken as officers of both Lumen
and the Company. The part of this compensation relating to services
provided to the Company cannot be determined separately.
(3) All awards reflected in this column represent Bolle options currently
held by the Company's executive officers which were received, pursuant
to the Spinoff, in exchange for Lumen options granted in 1997.
(4) Includes (i) $5 million and $3 million "split dollar" life insurance
policies maintained by the Company for Messrs. Franklin and Ashken,
respectively, for which Messrs. Franklin and Ashken reported $28,877
and $21,882, respectively, as income in 1997 and (ii) employer matching
contributions under Lumen's 401(k) savings plan of $5,664 for each of
Messrs. Franklin and Ashken in 1997.
(5) The salary and bonus of each of Messrs. Franklin and Asken are
reflected as a $719,000 selling, general and administrative charge in
the Company's 1997 financial statements. See page F- .
-38-
<PAGE>
OPTION GRANTS IN 1997
The following table sets forth information regarding Bolle options
currently held by the Company's executive officers which were received,
pursuant to the Spinoff, in exchange for Lumen options granted in 1997. In
accordance with the rules of the Commission, the table sets forth the
hypothetical gains or "option spreads" that would exist for the options at
the end of their terms. These gains are based on assumed rates of annual
compound stock price appreciation of 5% and 10% from the date the options
were granted to the end of the option terms.
OPTION GRANTS IN FISCAL 1997
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
-------------------------------- POTENTIAL REALIZABLE VALUE
AT
ASSUMED ANNUAL RATES OF
NUMBER OF STOCK PRICE APPRECIATION
SECURITIES PERCENT OF TOTAL FOR
UNDERLYING OPTIONS GRANTED TO EXERCISE OPTION TERM (2)(3)
OPTIONS EMPLOYEES IN PRICE EXPIRATION --------------------------
NAME GRANTED (1) FISCAL 1997 PER SHARE DATE 5% 10%
- ---- ----------- ----------- --------- ---- -- ---
<S> <C> <C> <C> <C> <C> <C>
Gary A. Kiedaisch . 166,667 19% $0.76 July 7, 2004(4) $ 865,088 $2,016,024
Martin E. Franklin 183,333 21% 0.57 March 25, 2007(5) $1,322,290 $1,831,261
Ian G.H. Ashken ... 33,333 4% 0.57 May 3, 2007(5) $ 240,416 $ 332,957
</TABLE>
- ------------
(1) The options shown in the table were granted at fair market value.
(2) The assumed annual compound rates of stock price appreciation are
mandated by the rules of the Commission and do not represent the
Company's estimate or projection of future stock prices.
(3) Since there was no public market, and therefore no market price, for
the Company's Common Stock on December 31, 1997, and since the
Company's executive officers were granted only Lumen options in 1997,
the information provided in this column is based on the 500,000,
550,000 and 100,000 Lumen options granted to Messrs. Kiedaisch,
Franklin and Ashken, respectively, in 1997, each with an exercise price
of $4.25 per share.
(4) 125,000 of Mr. Kiedaisch's options will vest on each of July 7, 1998,
1999, 2000, and 2001.
(5) These options will vest on the earlier of (a) the date on which the
Company's common stock has traded at an average closing bid price equal
to $8 per share for a twenty (20) consecutive trading day period or (b)
March 25, 2005.
BEC OPTIONS EXERCISED IN LAST FISCAL YEAR; FISCAL YEAR ENDED OPTION VALUES
The following table summarizes certain information regarding certain year
end option values of Bolle options currently held by the Company's executive
officers which were received pursuant to the Spinoff, in exchange for Lumen
options granted in 1997.
<TABLE>
<CAPTION>
NUMBER OF
UNEXERCISED VALUE OF UNEXERCISED
OPTIONS IN-THE-MONEY OPTIONS AT F-Y END
AT FY-END (1) ($)(1)
-------------- -------------------------------
EXERCISABLE/ EXERCISABLE/
NAME UNEXERCISABLE UNEXERCISABLE
- ---- -------------- -------------------------------
<S> <C> <C>
Gary A. Kiedaisch . 0/166,667 0/843,750(2)
Martin E. Franklin 45,833/320,833 1,131,656/1,352,844(3)
Ian G. H. Ashken .. 31,250/93,750 124,453/356,484(4)
</TABLE>
- ------------
(1) Since there was no public market, and therefore no market price, for
the Company's Common Stock on December 31, 1997, and since the
Company's executive officers held only Lumen options as of that date,
the information provided in this column is based on information
regarding such Lumen options and on the December 31, 1997 closing price
of Lumen common stock of $5.937 per share.
39
<PAGE>
(2) Based on a total of 0 exercisable and 500,000 unexercisable Lumen
options held by Mr. Kiedaisch on December 31, 1997 with an exercise
price of $4.25 per share.
(3) Based on a total of 137,500 exercisable and 962,500 unexercisable Lumen
options held by Mr. Franklin on December 31, 1997 with an average
exercise price of $4.98 and $4.56 per share for exercisable and
unexercisable options, respectively.
(4) Based on a total of 93,750 exercisable and 281,250 unexercisable Lumen
options held by Mr. Ashken on December 31, 1997 with an average
exercise price of $4.61 and $4.67 per share for exercisable and
unexercisable options, respectively.
DIRECTORS' COMPENSATION
Members of the Company's Board of Directors other than those who are
employees of the Company and the Chairman of the Board, will receive for 1998
an annual fee of $15,000 for their services as directors and as members of
any committees of the Company's Board of Directors on which they serve.
Thereafter, members of the Company's Board of Directors other than those who
are employees of the Company and the Chairman of the Board, will receive an
annual retainer fee in an amount to be determined. Non-employee directors
also receive automatic stock option grants under the Company's 1998 Stock
Incentive Plan. See "--Bolle 1998 Stock Incentive Plan" below. Mr. Kiedaisch
is compensated pursuant to an employment agreement with the Company. See
"--Employment Agreement" below.
EMPLOYMENT AGREEMENT
Mr. Kiedaisch is employed full time pursuant to an employment agreement
with the Company for a term ending on August 4, 2000, unless earlier
terminated by either party. At that time, the agreement will automatically
extend for additional one year terms unless either party gives six months
written notice prior to the end of the initial term or 90 days written notice
prior to the end of any renewal term. Mr. Kiedaisch's employment agreement
provides for annual base compensation of $250,000 and entitles Mr. Kiedaisch
to a bonus for the year 1997 and each full year thereafter which varies based
on the Company's annual earnings reaching certain milestones. Mr. Kiedaisch
also received a grant of Lumen options which were exchanged upon the
completion of the Spinoff for 166,667 options to purchase shares of Common
Stock. Pursuant to a separate Memorandum of Understanding, Mr. Kiedaisch will
be entitled to a cash payment from the Company if the value of the nominal
gains on the options (the "Nominal Gain") at the close of business on July 6,
2001 falls below certain levels as follows: if Mr. Kiedaisch is still
employed on July 6, 2001 or his employment has been terminated prior to that
date without cause, and the Nominal Gain is less than $500,000, the Company
shall pay to Mr. Kiedaisch the difference between $500,000 and the Nominal
Gain. If Mr. Kiedaisch's employment has been terminated prior to July 6, 2001
other than without cause, and the Nominal Gain is less than $338,000, the
Company shall pay to Mr. Kiedaisch the difference between $338,000 and the
Nominal Gain. The employment agreement restricts Mr. Kiedaisch from competing
against the Company and its affiliates in the United States or any other
territory where the Company does business or in which the Company's products
are marketed for a period of one year following the expiration of the
employment agreement and further contains certain anti-solicitation and
confidentiality provisions. The Company may terminate the employment
agreement without compensation in the event Mr. Kiedaisch commits a material
breach not cured after receiving notice thereof, is grossly or willfully
negligent or commits fraud or a misappropriation. The Company may terminate
the employment agreement without cause upon paying Mr. Kiedaisch a severance
indemnity equal to one year's base compensation or all remaining base
compensation due thereunder for the remainder of the term, whichever is
greater, plus the pro rata portion of his bonus for the then current year. In
the event of any termination without cause, all options granted to Mr.
Kiedaisch which are not then vested will vest automatically.
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<PAGE>
Mr. Bolle and Ms. Bolle Passaquay have entered into employment
agreements with Bolle France. See "Certain Relationships and Related
Transactions."
BOLLE 1998 STOCK INCENTIVE PLAN
In January 1998, the Company's Board of Directors adopted the 1998
Stock Incentive Plan (the "Plan"), under which 2,500,000 shares of Bolle
Common Stock are reserved for issuance pursuant to the grant of stock based
awards under the Plan. Pursuant to the Plan, employees, directors and
consultants of the Company and its subsidiaries and affiliates (other than
employees subject to a collective bargaining agreement) are eligible to be
selected by the Compensation Committee as participants to receive
discretionary awards of various forms of equity-based incentive compensation,
including stock options, stock appreciation rights, restricted stock awards,
performance share unit awards and phantom stock unit awards, and awards
consisting of combination of such incentives of stock options as set forth
below.
The Plan is administered by the full Board of Directors of the
Company or a committee thereof, including the Compensation Committee (the
entity administering the Plan, hereafter referred to as the "Committee"). The
Committee, in its sole discretion, will determine which eligible employees and
consultants of the Company and its subsidiaries may participate in the Plan
and the type, extent and terms of the equity-based awards to be granted to
them. Members of the Committee who are non-employee Directors will receive
automatic non-discretionary annual grants of stock options pursuant to the
Plan.
Each non-employee Director has been granted an option to purchase
3,333 shares of Bolle Common Stock in connection with the Spinoff. On the date
that a person first becomes a non-employee Director, he or she will
automatically be granted an option to purchase 3,333 shares of Bolle Common
Stock. Thereafter, beginning in 1999, on the date of each annual meeting of
stockholders of the Company, each non-employee Director will automatically be
granted an option to purchase 1,000 shares of Bolle Common Stock. All such
automatic grants to non-employee Directors are hereafter called "Director
Options." Each Director Option has an exercise price per share equal to the
fair market value of one share of Bolle Common Stock on the date of grant and
vests and becomes Exercisable over a four year period beginning on the first
anniversary of the date of grant at the rate of 25% of each Director Option on
each of the four years immediately following the date of grant. All Director
Options will be NQSO's (as defined below).
Stock options granted by the Committee under the Plan may be
"incentive stock options" ("ISOs"), within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended, or "non qualified stock options"
("NQSO's"). The exercise price of the options will be determined by the
Committee when the options are granted, subject to a minimum price of the fair
market value of the Bolle Common Stock on the date of grant in the case of
ISOs and the par value in the case of NQSOs. The option exercise price for all
options granted under the Plan may be paid in cash or in shares of Bolle
Common Stock having a fair market value on the date of exercise equal to the
exercise price or, in the discretion of the Committee, by delivery to the
Company of (i) other property having a fair
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<PAGE>
market value on the date of exercise equal to the option exercise price, or
(ii) a copy of irrevocable instructions to a stockbroker to deliver promptly
to the Company an amount of sale or loan proceeds sufficient to pay the
exercise price.
A SAR may be granted by the Committee as a supplement to a related
stock option or may be granted independent of any option. SARs granted in
connection with an option will become exercisable and lapse according to the
same vesting schedule and lapse rules that are established for the
corresponding option. SARs granted independent of any option will vest and
lapse according to the terms and conditions set by the Committee. A SAR will
entitle its holder to be paid an amount equal to the excess of the fair market
value of the Bolle Common Stock subject to the SAR on the date of exercise
over the exercise price of the related stock options, in the case of a SAR
granted in connection with an option, or the fair market value of Bolle Common
Stock on the date of grant in the case of a SAR granted independent of an
option.
Shares of Bolle Common Stock covered by a restricted stock award may,
in the discretion of the Committee, be issued to the recipient at the time the
award is granted or may be deposited with an escrow agent until the end of the
restricted period set by the Committee. During the restricted period,
restricted stock will be subject to transfer restrictions and forfeiture in
the event of termination of employment with the Company or a subsidiary and
other restrictions and conditions established by the Committee at the time the
award is granted.
A phantom stock unit award will provide for the future payment of
cash or the issuance of shares Bolle Common Stock to the recipient if
continued employment or other conditions established by the Committee at the
time of grant are attained.
A performance share unit award will provide for the future payment of
cash or the issuance of shares of the Bolle Common Stock to the recipient upon
the attainment of certain corporate performance goals established by the
Committee over performance award periods. At the end of each performance award
period, the Committee decides the extent to which the corporate performance
goals have been attained and the amount of cash or Bolle Common Stock to be
distributed to the participant.
OTHER
The Company does not maintain a pension plan or other actuarial
retirement plan for its named executive officers. The Company does not
maintain any long term incentive plans. The Company's named executive officers
are eligible to participate in benefit plans maintained by the Company which
are generally available to the Company's employees, including a 401(k) savings
plan and the health and life insurance programs.
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<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information with regard to the
beneficial ownership of the Common Stock as of March 31, 1998 and as adjusted
to reflect the sale of the shares of Common Stock offered hereby, by (i) each
person known by the Company to own beneficially more than 5% of the
outstanding shares of the Common Stock, (ii) each director and executive
officer and (iii) all directors and officers of the Company as a group.
<TABLE>
<CAPTION>
AMOUNT AND NATURE OF PERCENTAGE OF CLASS OWNED
NAME AND ADDRESS OF BENEFICIAL OWNER BENEFICIAL OWNERSHIP(1) BEFORE OFFERING/AFTER OFFERING
- ----------------------------------------- ----------------------------------------------------------------------------
SERIES A SERIES B SERIES A SERIES B
COMMON PREFERRED PREFERRED COMMON PREFERRED PREFERRED
STOCK STOCK STOCK STOCK STOCK STOCK
------------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Martin E. Franklin 702,704(2) 0 0 10.2/7.1% 0/0% 0/0%
555 Theodore Fremd Avenue
Suite B-302
Rye, New York 10580
Gary A. Kiedaisch 0 0 0 0/0 0/0 0/0
Ian G.H. Ashken 147,917 (3) 0 0 2.2/1.5 0/0 0/0
Nora A. Bailey 10,833 0 0 */* 0/0 0/0
Franck Bolle 55,706 12,614 1,975 */* 20/20 20/0
Patricia Bolle Passaquay 55,706 12,614 1,975 */* 20/20 20/0
David L. Moore 5,116 0 0 */* 0/0 0/0
David S. Moross 0 0 0 0/0 0/0 0/0
All Executive Officers and Directors as a 977,982 25,228 3,950 14.0/9.9 40/40 40/0
group (7 persons)
Millbrook Partners, L.P. 885,066(4) N/A N/A 13.3/9.0 N/A N/A
2102 Sawgrass Village Drive
Ponte Vedra Beach, Florida 32082
Marvin Schwartz(5) 463,157 N/A N/A 7.0/4.7 N/A N/A
605 Third Avenue
New York, New York 10158
Palisade Capital(6) 408,771 N/A N/A 6.2/4.1 N/A N/A
One Bridge Plaza
Suite 695
Fort Lee, New Jersey 07024
</TABLE>
- ------------
* Less than 1%.
(1) Shares not outstanding but deemed beneficially owned by virtue of the
right of an individual to acquire them within sixty (60) days upon the
exercise of an option are treated as outstanding for purposes of
determining beneficial ownership and the percent beneficially owned by
such individual and for the executive officers and directors as a
group.
(2) Excludes 5,127 shares of Common Stock held in trust for Mr. Franklin's
minor children.
(3) Excludes 833 shares of Common Stock held in trust for Mr. Ashken's
minor children, as to which shares Mr. Ashken disclaims beneficial
ownership.
(4) Based on a Schedule 13D filing dated March 31, 1997, reporting
beneficial ownership of the Lumen shares on which these shares were
distributed pursuant to the Spinoff, 859,066 of these shares, or 8.7%
of the Common Stock outstanding after the Offering, are beneficially
held by Millbrook Partners, L.P. ("Millbrook"), and the remaining
26,000 shares are beneficially held by Millbrook's general partner,
Mark M. Mathes.
(5) In a Schedule 13D filing dated March 26, 1998, Marvin Schwartz, acting
in his personal capacity and not as a principal of Neuberger & Berman,
reported beneficial ownership of such shares.
(6) Based on a pre-Spinoff Schedule 13G, dated February 1, 1997, in which
Palisade Capital reported beneficial ownership of the Lumen shares on
which these shares were distributed pursuant to the Spinoff.
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<PAGE>
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
INDEMNIFICATION AGREEMENTS
The Company has entered into indemnification agreements with each of
its directors, officers and certain executives, pursuant to which the Company
has agreed to indemnify each indemnitee to the fullest extent authorized by
law against any and all damages, judgments, settlements and fines ("losses")
in connection with any action, suit, arbitration or proceeding or any inquiry
or investigation, whether brought by or in the right of the Company or
otherwise, whether civil, criminal, administrative, investigative or other, or
any appeal therefrom, by reason of an indemnitee's serving as a director of
the Company. An indemnitee is not entitled to indemnification for any losses
that are (i) based or attributable to the indemnitee gaining in fact any
personal profit or advantage to which the indemnitee is not entitled, (ii) for
the return by the indemnitee of any remuneration paid to the indemnitee
without the previous approval of the Stockholders of the Company which is
illegal, (iii) for violations of Section 16 of the Securities Exchange Act of
1934 or similar provisions of state law, (iv) based upon knowingly fraudulent,
dishonest or willful misconduct and (v) not permitted to be covered by
applicable law. The agreements provide that the indemnification under the
agreement is not exclusive of any other rights the indemnitee may have under
the Company's Restated Certificate of Incorporation, Restated By-laws,
applicable Delaware corporate statutes or any agreement or vote of
stockholders.
MANAGEMENT SERVICES AGREEMENT
The Company has a Management Services Agreement with BEC, pursuant to
which certain executives of Lumen will provide certain management services to
the Company, including services relating to overall management and strategic
planning and direction, banking negotiations, treasury functions, investor
relations, securities regulatory compliance, employee and general business
insurance programs and asset acquisitions and sales. Pursuant to the
Management Services Agreement, Lumen will also make available to the Company
the services of Mr. Martin E. Franklin and Mr. Ian G. H. Ashken. As
compensation for its services, Lumen will be entitled to receive a monthly fee
of $60,000 and reimbursement for its identifiable reasonable out-of-pocket
expenses incurred in connection with the performance of services under the
Management Services Agreement. The Management Services Agreement, has an
initial term of three years, and will automatically renew for successive
one-year periods until terminated by either party upon 90 days written notice.
CONTRIBUTION AGREEMENT AND INDEMNIFICATION AGREEMENT
BEC has assigned to the Company all of BEC's assets other than those
related to BEC's ORC Business (as defined in a Bill of Assignment and
Assignment Agreement dated as of March 11, 1998, between BEC and the Company)
and certain other specified assets retained by BEC, and the Company has
assumed all of BEC's liabilities prior to the Spinoff other than those related
to the ORC Business. In addition, the Company will be required to indemnify
BEC against all of BEC's liabilities prior to the Spinoff other than
substantially all liabilities related to the ORC Business.
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<PAGE>
RELATIONSHIPS WITH DIRECTORS
Employment Agreements. Each of Mr. Franck Bolle and Ms. Patricia
Bolle Passaquay, both directors of the Company, is employed full-time by Bolle
France, as Director of International Operations and Director of Export Sales,
respectively, pursuant to employment agreements that are unlimited in
duration. Under each agreement, the Company is committed to pay basic annual
gross base remuneration in the French Francs equivalent of approximately
$280,000, to be increased by a minimum of 3% annually after the first year. In
addition, each of Mr. Franck Bolle and Ms. Patricia Bolle Passaquay is
entitled to bonuses for the years 1997, 1998 and 1999 of 25% to 50% of his or
her annual salary if Bolle France meets or exceeds its annual budgetary
objectives. If Bolle France terminates either agreement before July 9, 2000
for any reason other than gross or willful misconduct, the employee will be
entitled to compensation equal to the salary that he would have received from
the date of termination to July 9, 2000. Each agreement provides that if the
employee terminates his or her employment, he or she will be restricted from
competing against Bolle France for a period of up to three years following
such termination and will be entitled to an additional monthly compensation
equal to eight to ten percent of his or her last monthly salary during such
period. Mr. Kiedaisch, the Chief Executive Officer and a director of the
Company, is employed full time pursuant to an employment agreement with the
Company. See "Executive Employment Agreement."
Ms. Nora Bailey, a member of the Company's Board of Directors since
March 1998, is an attorney specializing in federal tax law. In her
professional capacity she has rendered legal advice and related services to
both the Company and its predecessor, Benson. Ms. Bailey has rendered such
services both prior to and subsequent to her appointment to the Company's
Board of Directors, and it is anticipated that she from time to time in the
future will be engaged to provide similar legal services to the Company. All
fees paid to Ms. Bailey in connection with such services have been agreed in
arms' length negotiations and are in accordance with Ms. Bailey's usual and
customary billing practices. Fees paid to Ms. Bailey by the Company in
connection with such services are not paid in consideration of her services as
a director.
BOLLE PREFERRED STOCK AND WARRANTS.
Each of Mr. Franck Bolle and Ms. Patricia Bolle Passaquay holds
12,614 shares of Bolle Series A Preferred Stock, 1,975 shares of Bolle
Series B Preferred Stock, and Bolle Warrants for the purchase of up to 132,771
shares of Bolle Common Stock. Mr. Bolle and Ms. Bolle Passaquay may not sell
their Bolle Series B Preferred Stock without the prior written consent of at
least 90% of the then outstanding shares of the Bolle Series B Preferred Stock
until the Company has redeemed all the shares of the Bolle Series B Preferred
Stock or the Subordinated Debt (as defined below).
CERTAIN TRANSACTIONS
On July 10, 1997, BEC acquired and contributed to the Company all of
the issued and outstanding share capital of Bolle France, pursuant to the
terms of a Share Purchase Agreement. Pursuant to the terms of the Share
Purchase Agreement, Bolle acquired from the Sellings shareholders (the
"Sellers") all of the issued and outstanding share capital of Bolle France,
Bolle Diffusion Sarl and the related land, in exchange for approximately
$54,700,000 consisting of the following not including transaction expenses of
approximately $3,600,000: (a) $31,000,000 in cash (the "Cash Consideration");
(b) Warrants to the Sellers to purchase an aggregate of up to 2,130,000 shares
of BEC common stock at an exercise price of $3.10 per share, subject to
certain adjustments; (c) Ten Thousand (10,000) shares of BEC Series A
Preferred Stock having an aggregate liquidation preference of approximately
$9,300,000 issued pursuant to the terms of the Certificate of Designations of
BEC Series A Preferred Stock; (d) One Hundred (100) shares of Bolle Common
Stock valued at approximately $3,300,000, being the minimum value of the Bolle
Common Stock to be issued to the Sellers pursuant to the Share Purchase
Agreement; and (e) Sixty-Four Thousand One Hundred Twenty (64,120) shares of
Bolle Series A Preferred Stock having an aggregate liquidation preference of
approximately $11,100,000 issued pursuant to the terms of the Certificate of
Designations of the Series A Preferred Stock of the Company. The Sellers
included Mr. Franck Bolle and Ms. Patricia Bolle Passaquay. On July 10, 1997,
BEC borrowed approximately $32,000,000, for the purpose of paying the Cash
Consideration and certain transaction expenses in connection with the purchase
of Bolle France, pursuant to the terms of the Credit Agreement (as defined
below).
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<PAGE>
The Share Purchase Agreement provides that none of the Sellers may
dispose of their shares of Bolle common stock until July 9, 2000. If, on that
date, the closing market price of the total number of shares then held by the
Sellers is less than $3,301,500 (the "Minimum Value"), the Company shall pay
on such date in cash or freely tradable stock the difference between the
actual value of the shares and the Minimum Value. In addition, pursuant to
letters dated July 9, 1997 and December 4, 1997 from Martin Franklin to the
Sellers, including Mr. Franck Bolle and Ms. Patricia Bolle Passaquay, Mr.
Franklin will refrain from selling any shares of Bolle Common Stock which he
received pursuant to the Spinoff for so long as the Bolle Series B Preferred
Stock shall not have been redeemed in full by the Company. In connection with
the Spinoff, the Sellers, including Mr. Franck Bolle and Ms. Patricia Bolle
Passaquay, were issued pursuant to a stock split in the form of a stock
dividend an aggregate of 278,430 additional shares of Bolle common stock.
Furhtermore, in connection with the Spinoff, the Sellers received Bolle Series
B Preferred Stock in exchange for their BEC Series A Preferred Stock and Bolle
warrants in exchange for their BEC warrants. All of the shares of Bolle common
stock received by the Sellers, including Mr. Franck Bolle and Ms. Patricia
Bolle Passaquay, pursuant to the Stock Purchase Agreement and this dividend
will bear the rights and obligations described above.
Under the Share Purchase Agreement, each of the Sellers on the one
hand, and the Company and BEC on the other hand, are liable to fully reimburse
and indemnify the other for any expense, damage, loss or liability arising
from any breach of the terms of the Share Purchase Agreement by the
indemnifying party, subject to certain minimum claim amounts which must be met
for the indemnification provisions to take effect. In connection with the
Spinoff, the Company agreed to assume all obligations and liabilities of BEC
to each Seller, including Mr. Franck Bolle and Ms. Patricia Bolle Passaquay,
incurred by BEC in connection with the purchase of Bolle France and BEC was
released from all such obligations and liabilities. As a result, the Company
became solely responsible for BEC's indemnification obligations for breach of
its representations and warranties made to the Sellers, including Mr. Franck
Bolle and Ms. Patricia Bolle Passaquay, in the Share Purchase Agreement.
During the years ended December 31, 1997, 1996 and 1995, Bolle
America was party to a revolving intercompany credit arrangement with BEC
whereby interest on outstanding balances was charged to Bolle America at a
rate of 8% per annum. Conversely, interest on cash sent to BEC was earned at a
rate of 5% per annum. In addition, in July 1997, BEC entered into a
$40,000,000 intercompany revolving credit agreement with the Company, for a
term of up to three years, pursuant to which the Company will pay interest to
BEC at a rate of 5.5% per annum. In conjunction with the Spinoff, the Company
entered into a separate credit facility with substantially the same terms as
the existing BEC credit facility and there are no intercompany credit
arrangements between BEC and the Company.
CONSULTING AND NON-COMPETE AGREEMENT
The Company has assumed BEC's duties and obligations pursuant to a
consulting and non-compete agreement entered into with Steve N. Haber, the
former Chairman of the Board, Chief Executive Officer and President of Bolle
America in November 1995. The following description refers to the parties'
respective duties giving effect to the assignment of the consulting agreement
to the Company. Pursuant to the agreement, as of January 1, 1997, Mr. Haber
became a consultant to the Company for annual compensation of $155,000 plus
health and life insurance benefits for a period ending on December 31, 2000,
extendible for an additional five years by mutual agreement of the parties. In
addition to employment as a consultant, Mr. Haber agreed, commencing on the
effective date of the consulting agreement and continuing through December 31,
2005, not to compete against the Company in the eyewear or optical, opthalmic
or optometric businesses in any geographic area in which the Company does
business. As compensation for this noncompete agreement, Mr. Haber received an
initial payment of $800,000 and will receive a payment of $100,000 per year
commencing January 1, 1997 through December 31, 2005. Mr. Haber furthermore
agreed not to disclose any of the Company's confidential information.
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<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(A) 1. FINANCIAL STATEMENTS:
<TABLE>
<CAPTION>
CONSOLIDATED FINANCIAL STATEMENTS: PAGE:
-----
<S> <C> <C>
Reports of Independent Accounts................................................ 16
Consolidated Balance Sheets at December 31, 1997 and 1996...................... 17
Consolidated Statements of Operations for the three years
ended December 31, 1997, 1996 and 1995...................................... 18
Consolidated Statements of Stockholders' Equity for the three years
ended December 31, 1997, 1996 and 1995...................................... 20
Consolidated Statements of Cash Flows for the three years ended
December 31, 1997, 1996 and 1995............................................ 21
Notes to Consolidated Financial Statements..................................... 23
</TABLE>
2. FINANCIAL STATEMENT SCHEDULES:
All other schedules for which provision is made in the
applicable accounting regulations of the Securities and
Exchange Commission are not required under the related
instructions or are inapplicable, and therefore have been
omitted.
3. EXHIBITS:
The following exhibits are filed herewith:
<TABLE>
<CAPTION>
<S> <C>
3.1 Amended and Restated Certificate of Incorporation. Incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form 8-A, Commission File No. 000-23899.
3.2 Certificate of Designations of the Series B Preferred Stock. Incorporated by reference to Exhibit 2
to the Company's Registration Statement on Form 8-A, Commission
File No. 000-23899.
3.3 Amended and Restated Bylaws Incorporated by reference to Exhibit 3 to the Company's Registration
Statement on Form 8-A, Commission File No. 000-23899.
3.4 Amendment to Bylaws dated March 11, 1998.
4.1 Specimen of Stock Certificate. Incorporated by reference to Exhibit 4 to the Company's Registration
Statement on Form 8-A, Commission File No. 000-23899.
4.2 Amended and Restated Share Purchase Agreement dated July 9, 1997 among BEC Group, Inc.
("BEC")(renamed Lumen Technologies, Inc. on March 11, 1998) and Bolle Inc. (the "Company"), on the
one hand, and each of Robert Bolle, Maurice Bolle, Franck Bolle, Brigitte Bolle, Patricia Bolle
Passaquay and Christelle Roche (collectively, the "Sellers"). Incorporated by reference to Exhibit
10.1 of BEC's Current Report on Form 8-K, dated July 10, 1997 (Commission File No. 1-14360).
4.3 Letter Agreement dated July 9, 1997 by and among Martin E. Franklin and each of the Sellers.
Incorporated by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-1
(Registration No. 333-40279).
4.4 Letter Agreement dated December 15, 1997 by and among Martin E. Franklin and each of the Sellers.
Incorporated by reference to Exhibit 6 to the Company's Registration Statement on Form 8-A,
Commission File No. 000-23899.
4.5 Letter from the Company to the Sellers regarding the Series A Preferred Stock
4.6 Warrant Agreement among the Company and each of the Sellers
4.7 1998 Stock Incentive Plan
10.1 Employment Agreement and Memorandum of Understanding dated July 7, 1997 between the Company and Gary
Kiedaisch. Incorporated by reference to Exhibit 10.1 to the Company's Registration Statement on Form
S-1 (Registration No. 333-40279).
10.2 Employment Agreement dated July 9, 1997 between Societe Bolle SNC and Franck Bolle (English
translation). Incorporated by reference to Exhibit 10.2 to the Company's Registration Statement on
Form S-1 (Registration No. 333-40279).
10.3 Employment Agreement dated July 9, 1997 between Societe Bolle SNC and Patricia Bolle Passaquay
(English translation). Incorporated by reference to Exhibit 10.3 to the Company's Registration
Statement on Form S-1 (Registration No. 333-40279).
10.4 Agreement dated September 20, 1995 between the Company and Steve N. Haber. Incorporated by reference
to Exhibit 10.4 to the Company's Registration Statement on Form S-1 (Registration No. 333-40279).
10.5 Management Services Agreement between the Company and BEC. Incorporated by reference to Exhibit 10.6
to BEC's Current Report on Form 8-K, date of event March 11, 1998.
10.6 Bill of Sale and Assignment Agreement between BEC and the Company. Incorporated by reference to
Exhibit 10.4 to BEC's Current Report on Form 8-K, date of event March 11, 1998.
10.7 Indemnification Agreement by and among BEC, BILC Acquisition Corp. and the Company. Incorporated by
reference to Exhibit 10.5 to BEC's Curent Report on Form 8-K, date of event March 11, 1998.
10.8 Exclusive Customer Agreement dated as of October 23, 1997 by and between the Company and Alyn
Corporation. Incorporated by reference to Exhibit 10.8 to the Company's Registration Statement on
Form S-1 (Registration No. 333-40279).
10.9 Letter of Intent between the Company and Bill Bass Optical Pty Ltd. dated January 6, 1998.
Incorporated by reference to Exhibit 10.9 to the Company's Registration Statement on Form S-1
(Registration No. 333-40279).
10.10 Loan Agreement by and among BEC (as assignee) and First Interstate Bank of Texas, N.A., relating to
the real property located in Dallas, Texas. Incorporated by reference to Exhibit 10.24 to Benson
Eyecare Corporation's Annual Report on Form 10-K for the year ended December 31, 1995 (Commission
File No. 1-9435).
10.11 First Amendment to Loan Agreement (see Exhibit 10.8 above) and Other Loan Documents, dated May 3,
1996, by and among Foster Grant Group, L.P., BEC and First Interstate Bank of Texas, N.A.
Incorporated by reference to Exhibit 10.20 to Lumen's Annual Report on Form 10-K for the year ended
December 31, 1996 (Commission File No. 1-14360).
10.12 Second Amendment to Loan Agreement (see Exhibit 10.8 above) and Other Loan Documents, dated December
12, 1996, by and among Wells Fargo Bank (Texas), N.A. (as successor to First Interstate Bank of
Texas, N.A.), ORC Management Corporation, Foster Grant Group, L.P., and BEC. Incorporated by
reference to Exhibit 10.21 to BEC's Annual Report on Form 10-K for the year ended December 31, 1996
(Commission File No. 1-14360).
10.13 Deed of Trust, Security Agreement and Financing Statement, dated March 31, 1995, relating to mortgage
of real property located in Dallas, Texas. Incorporated by reference to Exhibit 10.22 of BEC's Annual
Report on Form 10-K for the year ended December 31, 1996 (Commission File No. 1-14360).
10.14 Agreement and Plan of Merger, dated as of July 26, 1995, among Benson Eyecare Corporation, Benson
Acquisition Corp., and Bolle America, Inc. Incorporated by reference to Exhibit 10.1 to Benson
Eyecare Corporation's Current Report on Form 8-K, dated August 3, 1995 (Commission File No. 1-9435).
10.15 Agreement and Plan of Merger, dated as of February 11, 1996, between Essilor International, S.A.,
Essilor of America, Inc., Essilor Acquisition Corporation, Benson Eyecare Corporation, BEC and Omega
Opco, Inc. Incorporated by reference to Exhibit 10.1 to BEC's Registration Statement on Form S-1
(Registration No. 333-3186).
10.16 Indemnification Agreement, dated as of February 11, 1996, by and among Essilor International, S.A.,
Essilor of America, Inc., Essilor Acquisition Corporation, Benson Eyecare Corporation, and BEC.
Incorporated by reference to Exhibit 10.3 to BEC's Registration Statement on Form S-1 (Registration
No. 333-3186).
10.17 Asset Purchase Agreement, dated as of February 11, 1996, by and among Benson Eyecare Corporation, BEC
and Optical Radiation Corporation and Monsanto Company. Incorporated by reference to Exhibit 10.2 to
Benson Eyecare Corporation's Current Report on Form 8-K, dated February 12, 1996.
10.18 Stock Purchase Agreement, dated as of November 13, 1996, by and among BEC, Foster Grant Group, L.P.,
Foster Grant Holdings, L.P. and Accessories Associates, Inc. Schedules and other attachments to such
agreement are not filed herewith, but will be provided supplementally to the Commission upon request.
Incorporated by reference to Exhibit 2.1 to BEC's Quarterly Report on Form 10-Q/A for the period
ended September 30, 1996.
10.19 Merger Agreement, dated as of June 30, 1994, among BEC (as assignee), Benson Acquisition Company,
Inc. and Optical Radiation Corporation. Incorporated by reference to Exhibit 99.1 to Benson Eyecare
Corporation's Current Report on Form 8-K, dated of event June 30, 1994 (Commission File No. 1-9435).
10.20 Amendment No. 1 to Merger Agreement, dated as of July 6, 1994, among BEC (as assignee), Benson
Acquisition Company, Inc. and Optical Radiation Corporation. Incorporated by reference to Exhibit
99.2 to Benson Eyecare Corporation's Current Report on Form 8-K, date of event June 30, 1994
(Commission File No. 1-9435).
10.21 Amendment No. 2 to Merger Agreement, dated as of August 29, 1994, by and among BEC, Optical Radiation
Corporation and Benson Acquisition Corporation. Incorporated by reference to Annex E to Benson
Eyecare Corporation's Registration Statement on Form S-4, dated September 12, 1994 (Commission File
No. 1-9435).
10.22 Form of Indemnification Agreement between the Company and its officers and directors. Incorporated by
reference to Exhibit 10.22 to the Company's Registration Statement on Form S-1 (Registration No.
333-40279).
10.23 Second Amended and Restated Credit Agreement, dated as of March 11, 1998, among the Company,
NationsBank, National Association and the other lenders party thereto. Filed together with this
Exhibit 10.23 are copies of the following ancillary agreements.
(a) Second Amended and Restated Guarantee Agreement, dated March 11, 1998.
(b) Second Amended and Restated Stock Pledge Agreement, dated as of March 11, 1998.
(c) LC Account Agreement, dated as of March 11, 1998.
(d) Cash Collateral Account Agreement, dated as of March 11, 1998.
(e) Second Amended and Restated Security Agreement, dated as of March 11, 1998.
(f) Second Amended and Restated Intellectual Property Security Agreement, dated as of March 11,
1998.
(g) Second Amended and Restated Assignment of Patents, Trademarks, Copyrights and Licenses, dated as
of March 11, 1998.
21.1 List of the subsidiaries of the Company. Incorporated by reference to Exhibit 21.1 to the Company's
Registration Statement on Form S-1 (Registration No. 333-40279).
27 Financial Data Schedule
</TABLE>
(B) REPORTS ON FORM 8-K IN THE FOURTH QUARTER OF 1996:
(i) The Company filed no Reports on Form 8-K in the fourth quarter of
1997.
-47-
<PAGE>
BOLLE, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized on the 15th day of April, 1998.
BOLLE, INC.
By: /s/ Martin E. Franklin
----------------------------------
Martin E. Franklin
Chairman of the Board
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities indicated.
<TABLE>
<S> <C>
/s/ Martin E. Franklin /s/ Gary A. Kiedaisch
- ------------------------------------ --------------------------------
Martin E. Franklin Gary A. Kiedaisch
Chairman Chief Executive Officer
Dated: April 15, 1998 Dated: April 15, 1998
/s/ Ian G. H. Ashken /s/ David L. Moore
- ------------------------------------ --------------------------------
Ian G. H. Ashken David L. Moore
Chief Financial Officer, Director
Executive Vice President of Finance and
Administration; Dated April 15, 1998
Dated: April 15, 1998
/s/ Nora A. Bailey /s/ Franck Bolle
- ------------------------------------ --------------------------------
Nora A. Bailey Franck Bolle
Director Director
Dated: April 15, 1998 Dated: April 15, 1998
/s/ Patricia Bolle Passaquay /s/ David S. Moross
- ------------------------------------ --------------------------------
Patricia Bolle Passaquay David S. Moross
Director Director
Dated: April 15, 1998 Dated: April 15, 1998
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT PAGE NO.
- ----------- ------- ----------
<S> <C> <C>
3.1 Amended and Restated Certificate of Incorporation. Incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form 8-A, Commission File No. 000-23899.
3.2 Certificate of Designations of the Series B Preferred Stock. Incorporated by reference to Exhibit 2
to the Company's Registration Statement on Form 8-A, Commission
File No. 000-23899.
3.3 Amended and Restated Bylaws Incorporated by reference to Exhibit 3 to the Company's Registration
Statement on Form 8-A, Commission File No. 000-23899.
3.4 Amendment to Bylaws dated March 11, 1998.
4.1 Specimen of Stock Certificate. Incorporated by reference to Exhibit 4 to the Company's Registration
Statement on Form 8-A, Commission File No. 000-23899.
4.2 Amended and Restated Share Purchase Agreement dated July 9, 1997 among BEC Group, Inc.
("BEC")(renamed Lumen Technologies, Inc. on March 11, 1998) and Bolle Inc. (the "Company"), on the
one hand, and each of Robert Bolle, Maurice Bolle, Franck Bolle, Brigitte Bolle, Patricia Bolle
Passaquay and Christelle Roche (collectively, the "Sellers"). Incorporated by reference to Exhibit
10.1 of BEC's Current Report on Form 8-K, dated July 10, 1997 (Commission File No. 1-14360).
4.3 Letter Agreement dated July 9, 1997 by and among Martin E. Franklin and each of the Sellers.
Incorporated by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-1
(Registration No. 333-40279).
4.4 Letter Agreement dated December 15, 1997 by and among Martin E. Franklin and each of the Sellers.
Incorporated by reference to Exhibit 6 to the Company's Registration Statement on Form 8-A,
Commission File No. 000-23899.
4.5 Letter from the Company to the Sellers regarding the Series A Preferred Stock
4.6 Warrant Agreement among the Company and each of the Sellers
4.7 1998 Stock Incentive Plan
10.1 Employment Agreement and Memorandum of Understanding dated July 7, 1997 between the Company and Gary
Kiedaisch. Incorporated by reference to Exhibit 10.1 to the Company's Registration Statement on Form
S-1 (Registration No. 333-40279).
10.2 Employment Agreement dated July 9, 1997 between Societe Bolle SNC and Franck Bolle (English
translation). Incorporated by reference to Exhibit 10.2 to the Company's Registration Statement on
Form S-1 (Registration No. 333-40279).
10.3 Employment Agreement dated July 9, 1997 between Societe Bolle SNC and Patricia Bolle Passaquay
(English translation). Incorporated by reference to Exhibit 10.3 to the Company's Registration
Statement on Form S-1 (Registration No. 333-40279).
10.4 Agreement dated September 20, 1995 between the Company and Steve N. Haber. Incorporated by reference
to Exhibit 10.4 to the Company's Registration Statement on Form S-1 (Registration No. 333-40279).
10.5 Management Services Agreement between the Company and BEC. Incorporated by reference to Exhibit 10.6
to BEC's Current Report on Form 8-K, date of event March 11, 1998.
10.6 Bill of Sale and Assignment Agreement between BEC and the Company. Incorporated by reference to
Exhibit 10.4 to BEC's Current Report on Form 8-K, date of event March 11, 1998.
10.7 Indemnification Agreement by and among BEC, BILC Acquisition Corp. and the Company. Incorporated by
reference to Exhibit 10.5 to BEC's Curent Report on Form 8-K, date of event March 11, 1998.
10.8 Exclusive Customer Agreement dated as of October 23, 1997 by and between the Company and Alyn
Corporation. Incorporated by reference to Exhibit 10.8 to the Company's Registration Statement on
Form S-1 (Registration No. 333-40279).
10.9 Letter of Intent between the Company and Bill Bass Optical Pty Ltd. dated January 6, 1998.
Incorporated by reference to Exhibit 10.9 to the Company's Registration Statement on Form S-1
(Registration No. 333-40279).
10.10 Loan Agreement by and among BEC (as assignee) and First Interstate Bank of Texas, N.A., relating to
the real property located in Dallas, Texas. Incorporated by reference to Exhibit 10.24 to Benson
Eyecare Corporation's Annual Report on Form 10-K for the year ended December 31, 1995 (Commission
File No. 1-9435).
10.11 First Amendment to Loan Agreement (see Exhibit 10.8 above) and Other Loan Documents, dated May 3,
1996, by and among Foster Grant Group, L.P., BEC and First Interstate Bank of Texas, N.A.
Incorporated by reference to Exhibit 10.20 to Lumen's Annual Report on Form 10-K for the year ended
December 31, 1996 (Commission File No. 1-14360).
10.12 Second Amendment to Loan Agreement (see Exhibit 10.8 above) and Other Loan Documents, dated December
12, 1996, by and among Wells Fargo Bank (Texas), N.A. (as successor to First Interstate Bank of
Texas, N.A.), ORC Management Corporation, Foster Grant Group, L.P., and BEC. Incorporated by
reference to Exhibit 10.21 to BEC's Annual Report on Form 10-K for the year ended December 31, 1996
(Commission File No. 1-14360).
10.13 Deed of Trust, Security Agreement and Financing Statement, dated March 31, 1995, relating to mortgage
of real property located in Dallas, Texas. Incorporated by reference to Exhibit 10.22 of BEC's Annual
Report on Form 10-K for the year ended December 31, 1996 (Commission File No. 1-14360).
10.14 Agreement and Plan of Merger, dated as of July 26, 1995, among Benson Eyecare Corporation, Benson
Acquisition Corp., and Bolle America, Inc. Incorporated by reference to Exhibit 10.1 to Benson
Eyecare Corporation's Current Report on Form 8-K, dated August 3, 1995 (Commission File No. 1-9435).
10.15 Agreement and Plan of Merger, dated as of February 11, 1996, between Essilor International, S.A.,
Essilor of America, Inc., Essilor Acquisition Corporation, Benson Eyecare Corporation, BEC and Omega
Opco, Inc. Incorporated by reference to Exhibit 10.1 to BEC's Registration Statement on Form S-1
(Registration No. 333-3186).
10.16 Indemnification Agreement, dated as of February 11, 1996, by and among Essilor International, S.A.,
Essilor of America, Inc., Essilor Acquisition Corporation, Benson Eyecare Corporation, and BEC.
Incorporated by reference to Exhibit 10.3 to BEC's Registration Statement on Form S-1 (Registration
No. 333-3186).
10.17 Asset Purchase Agreement, dated as of February 11, 1996, by and among Benson Eyecare Corporation, BEC
and Optical Radiation Corporation and Monsanto Company. Incorporated by reference to Exhibit 10.2 to
Benson Eyecare Corporation's Current Report on Form 8-K, dated February 12, 1996.
10.18 Stock Purchase Agreement, dated as of November 13, 1996, by and among BEC, Foster Grant Group, L.P.,
Foster Grant Holdings, L.P. and Accessories Associates, Inc. Schedules and other attachments to such
agreement are not filed herewith, but will be provided supplementally to the Commission upon request.
Incorporated by reference to Exhibit 2.1 to BEC's Quarterly Report on Form 10-Q/A for the period
ended September 30, 1996.
10.19 Merger Agreement, dated as of June 30, 1994, among BEC (as assignee), Benson Acquisition Company,
Inc. and Optical Radiation Corporation. Incorporated by reference to Exhibit 99.1 to Benson Eyecare
Corporation's Current Report on Form 8-K, dated of event June 30, 1994 (Commission File No. 1-9435).
10.20 Amendment No. 1 to Merger Agreement, dated as of July 6, 1994, among BEC (as assignee), Benson
Acquisition Company, Inc. and Optical Radiation Corporation. Incorporated by reference to Exhibit
99.2 to Benson Eyecare Corporation's Current Report on Form 8-K, date of event June 30, 1994
(Commission File No. 1-9435).
10.21 Amendment No. 2 to Merger Agreement, dated as of August 29, 1994, by and among BEC, Optical Radiation
Corporation and Benson Acquisition Corporation. Incorporated by reference to Annex E to Benson
Eyecare Corporation's Registration Statement on Form S-4, dated September 12, 1994 (Commission File
No. 1-9435).
10.22 Form of Indemnification Agreement between the Company and its officers and directors. Incorporated by
reference to Exhibit 10.22 to the Company's Registration Statement on Form S-1 (Registration No.
333-40279).
10.23 Second Amended and Restated Credit Agreement, dated as of March 11, 1998, among the Company,
NationsBank, National Association and the other lenders party thereto. Filed together with this
Exhibit 10.23 are copies of the following ancillary agreements.
(a) Second Amended and Restated Guarantee Agreement, dated March 11, 1998.
(b) Second Amended and Restated Stock Pledge Agreement, dated as of March 11, 1998.
(c) LC Account Agreement, dated as of March 11, 1998.
(d) Cash Collateral Account Agreement, dated as of March 11, 1998.
(e) Second Amended and Restated Security Agreement, dated as of March 11, 1998.
(f) Second Amended and Restated Intellectual Property Security Agreement, dated as of March 11,
1998.
(g) Second Amended and Restated Assignment of Patents, Trademarks, Copyrights and Licenses, dated as
of March 11, 1998.
21.1 List of the subsidiaries of the Company. Incorporated by reference to Exhibit 21.1 to the Company's
Registration Statement on Form S-1 (Registration No. 333-40279).
27 Financial Data Schedule
</TABLE>
<PAGE>
AMENDMENT
TO
BY LAWS
OF
BOLLE INC.
Article V, Sections 7, 8 and 9 of the Bylaws of Bolle Inc.
(the "Corporation") shall be amended to read as follows:
1. Article V, Section 7 is hereby stricken in its entirety
and the following new Article V, Section 7 is substituted in lieu thereof:
"SECTION 7. Chairman of the Board. The Chairman of the
Board shall be an executive officer of the corporation and shall preside, if
present, at all meetings of the stockholders and at all meetings of the Board
of Directors and shall perform such other duties and have such other powers as
from time to time may be assigned by the Board of Directors or prescribed by
these Bylaws."
2. Article V, Section 8 is hereby stricken in its entirety
and the following new Article V, Section 8 is substituted in lieu thereof:
"SECTION 8. Vice Chairman of the Board. The Vice Chairman
of the Board shall, at the request of the Chairman of the Board or in his
absence or disability, perform the duties of the Chairman of the Board and
when so acting shall, have all the power of, and be subject to all
restrictions upon, the Chairman of the Board and shall perform such other
duties and have such other powers as from time to time may be assigned to him
by the Chairman of the Board or prescribed by these Bylaws. In the event of a
vacancy in the office of the Chairman of the Board, the Vice Chairman of the
Board shall thereupon serve as the Chairman of the Board until the next annual
meeting of stockholders and until a successor is duly elected and qualified."
3. Article V, Section 9 is hereby stricken in its entirety
and the following new Article V, Section 9 is substituted in lieu thereof:
"SECTION 9. Chief Executive Officer. The Chief Executive
Officer shall have general direction of the affairs of the Corporation and
general supervision over its several officers, subject, however, to the
control of the Board of Directors and the Chairman of the Board, and in
general shall perform such duties and, subject to the other provisions of
these Bylaws, have such powers incident to the office of Chief Executive
Officer and perform such other duties as from time to time may be assigned to
him by the Board of Directors or the Chairman of the Board."
4. Except as amended herein, the Bylaws shall remain
unmodified and in full force and effect.
<PAGE>
The undersigned, hereby certifies that the above amendments
were duly adopted by the unanimous written consent of the Board of Directors
dated March 11, 1998.
Signed this 11th day of March, 1998
/s/ Desiree DeStefano
-----------------------------------
Name: Desiree DeStefano
Title: Vice President
<PAGE>
BEC GROUP, INC.
555 THEODORE FREUD AVENUE
SUITE B-302
RYE, NEW YORK 10580
TEL: (914) 967-9400
FAX: (914) 967-9405/7
E-MAIL: BECGroup.com
MARTIN E. FRANKLIN
CHAIRMAN OF THE BOARD
Mr. Robert Bolle and Bolle Family
1148, Avenue General Andrea
Arbent 01100
France
Dear Robert and fellow Bolle family members:
This letter confirms our agreement that in the event that the Series A
preferred stock outstanding in Bolle Inc. is not paid in full by its due
date, that the preferred stock will start accruing interest from July, 2000
on the same terms as are outlined in the Series B preferred stock.
Yours sincerely,
/s/ Martin E. Franklin
- -----------------------
Martin E. Franklin
<PAGE>
EX 4.6
EXECUTION COPY
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Agreement") effective as of
March 11, 1998 is made by and among Bolle Inc., a Delaware corporation having
its executive offices at 555 Theodore Fremd Avenue, Suite B-302, Rye, New York,
10580 USA (the "Company") and Maurice Bolle, Robert Bolle, Franck Bolle,
Patricia Bolle Passaquay, Brigitte Bolle and Christelle Roche, each having a
business address at Rue Tacon, BP 139, Oyonnax, 01104 France (collectively, the
"Warrantholders").
The Company hereby agrees to issue to the Warrantholders,
Stock Purchase Warrants, as hereinafter described (the "Warrants"), to purchase
an aggregate of 663,845 shares, subject to adjustment as provided for herein
(the "Shares") of common stock, par value $.01 per share of the Company
(the "Common Stock"). The number of Shares that each Warrantholder's Warrant
shall obtain upon exercise in full of such Warrant is set forth in Schedule 1
to this Agreement. The Warrants shall be issued on the date of this Agreement
(the "Closing Date").
In consideration of the foregoing and for the purpose of
defining the terms and provisions of the Warrants and the respective rights and
obligations thereunder, the Company and the Warrantholders, for value received,
hereby agree as follows:
SECTION 1. TRANSFERABILITY AND FORM OF WARRANTS.
1.1. Registration. The Warrants shall be numbered and shall
be registered on the books of the Company when issued.
1.2. Transfer. The Warrants shall be transferable only on the
books of the Company maintained at its principal office in Rye, New York, USA
or wherever its principal executive offices may then be located upon delivery
thereof duly endorsed by the Warrantholder or by its duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment
or authority to transfer. Upon any registration of transfer, the Company shall
execute and deliver a new Warrant to the person entitled thereto. Subject to
the limitations set forth in Section 1.3 below, the Warrants may be sold,
transferred or otherwise disposed of by the Warrantholders at any time during
the period commencing at 9:00 a.m. New York City Time on July 10, 1999 (the
"Exercisability Date") and ending at 5:00 p.m. New York City Time on July 10,
2001 (the "Termination Date"); provided, however, that the Warrants may be
pledged at any time after the Closing Date, subject to compliance with all
applicable laws.
1.3. Limitations on Transfer of the Warrants. The Warrants
may not be sold, transferred, or otherwise disposed of by the Warrantholders in
the absence of registration of the Warrant under the Securities Act of 1933, as
amended (the "Securities Act"), and state securities laws, or an exemption
therefrom. A Warrant shall be divided or combined, upon request to the Company,
by the Warrantholder, into a certificate or certificates representing the right
to purchase the same, aggregate number of Shares purchasable under the Warrant.
Unless the context indicates otherwise, the term "Warrantholder" shall include
any transferee or transferees of the
<PAGE>
Warrants pursuant to this subsection 1.3, and the term "Warrant" shall include
any and all warrants outstanding pursuant to this Agreement, including those
evidenced by a certificate or certificates issued upon division, exchange,
substitution or transfer pursuant to this Agreement.
1.4. Form of Warrants.
(a) The text of the Warrants and the form of election to
purchase Shares shall be substantially as set forth in Exhibit A
attached hereto. The price per Share and the number of Shares issuable
upon exercise of the Warrant are subject to adjustment upon the
occurrence of certain events, all as hereinafter provided. The
Warrants shall be executed on behalf of the Company by its President
or a Vice President.
(b) A Warrant bearing the signature of an individual who was
at any time the proper officer of the Company shall bind the Company,
notwithstanding that such individual shall have ceased to hold such
office prior to the delivery of such Warrant or did not hold such
office on the date of this Agreement.
(c) The Warrant shall be dated as of the date of signature
thereof by the Company either upon initial issuance or upon division,
exchange, substitution or transfer.
1.5. Legend on Warrants and Share Certificates. The Warrants
and each certificate for Shares initially issued upon exercise of the Warrants,
shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW. SUCH
SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, EXCHANGED,
MORTGAGED, PLEDGED OR OTHERWISE DISPOSED OF OR ENCUMBERED
WITHOUT COMPLIANCE WITH THE SECURITIES ACT AND STATE
SECURITIES LAWS."
Any Warrant or certificate issued at anytime in exchange or substitution for
any Warrant or certificate bearing such legend shall also bear the above legend
unless, in the opinion of Willkie Farr & Gallagher or such other counsel as
shall be reasonably approved by the Company, the securities represented thereby
need no longer be subject to such restrictions.
SECTION 2. EXCHANGE OF WARRANT CERTIFICATE.
Any Warrant certificate may be exchanged without expense to
the Warrantholder (other than for the payment of any taxes associated with such
exchange) for another Warrant certificate or certificates entitling the
Warrantholder to purchase a like aggregate number of Shares as the Warrant
certificate or certificates surrendered then entitling such Warrantholder to
purchase. Any Warrantholder desiring to exchange a Warrant certificate shall
make such request in writing delivered to the Company, and shall surrender,
properly endorsed, the certificate evidencing the Warrant to be so exchanged.
Thereupon, the Company shall execute and deliver
-2-
<PAGE>
to the person entitled thereto a new Warrant certificate as so requested.
SECTION 3. TERM OF WARRANTS; EXERCISE OF WARRANTS.
Subject to the terms of this Agreement, a Warrantholder shall
have the right, at any time during the period commencing on the Exercisability
Date and ending on the Termination Date, to purchase from the Company up to the
number of Shares which the Warrantholder may at the time be entitled to
purchase pursuant to this Agreement, upon surrender to the Company, at its
principal office in Rye, New York, USA, of the certificate evidencing the
Warrant to be exercised, together with the purchase form on the reverse thereof
duly filled in and signed, and upon payment to the Company of the Warrant Price
(as defined in and determined in accordance with the provisions of Sections 7
and 8 hereof), for the number of Shares with respect to which such Warrant is
then exercised. Except as otherwise provided in this Agreement, payment of the
aggregate Warrant Price shall be made in cash, by cashier's check or by wire
transfer. Notwithstanding any other provision of this Agreement to the
contrary, no Warrant shall be exercised, in whole or in part, for an amount of
Shares that is less than 17,000 or the remaining Shares that such Warrantholder
is then able to purchase upon exercise of the Warrant.
Upon such surrender of the Warrant and payment of such
Warrant Price as aforesaid, the Company shall issue and cause to be delivered
with all reasonable dispatch (and, in any event, no later than 10 business days
from the date of such surrender and payment) to or upon the written order of
the Warrantholder and in such name or names as the Warrantholder may designate
certificate or certificates for the number of full Shares so purchased upon the
exercise of the Warrant, together with cash, as provided in Section 9 hereof
with respect to any fractional Shares otherwise issuable upon such surrender
and the cash, property and other securities to which the Warrantholder is
entitled pursuant to the provisions of Section 8. Such certificate or
certificates shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a holder of such Shares as
of the close of business on the date of the surrender of the Warrant and
payment of the Warrant Price, as aforesaid, notwithstanding that the
certificates representing such Shares shall not actually have been delivered or
that the stock and warrant transfer books of the Company shall then be closed.
A Warrant shall be exercisable, at the election of the Warrantholder, either in
full or from time to time in part and, in the event that the certificate
evidencing the Warrant is exercised with respect to less than all of the Shares
specified therein at any time prior to the Termination Date, a new certificate
evidencing the remaining Warrant shall be issued by the Company.
Notwithstanding anything herein to the contrary, the
Warrantholders may, at their option, at any time during the period commencing
on the Exercisability Date and ending on the Termination Date, exchange the
Warrants, in whole or in part (a "Warrant Exchange"), into the number of Shares
determined in accordance with this paragraph, by surrendering the certificate
evidencing the Warrant to be exchanged at the principal executive office of the
Company or at the office of its stock transfer agent, accompanied by a notice
stating such Warrantholder's intent to effect such exchange, the number of
Shares to be exchanged and the date on which the Warrantholder requests that
such Warrant Exchange occur (the "Notice of Exchange"). The Warrant Exchange
shall take place on the date specified in the Notice of Exchange or, if later,
the date the Notice of Exchange is received by the Company (the "Exchange
Date"). Certificates for
-3-
<PAGE>
the Shares issuable upon such Warrant Exchange and, if applicable, a new
Warrant certificate of like tenor evidencing the balance of the Shares
remaining subject to this Agreement, shall be issued as of the Exchange Date
and delivered to the Warrantholder within 10 business days following the
Exchange Date. In connection with any Warrant Exchange, this Agreement shall
represent the right to subscribe for and acquire the number of Shares (rounded
to the next highest integer) equal to (i) the number of Shares specified by the
Warrantholder in its Notice of Exchange (the "Total Number") less (ii) the
number of Shares equal to the quotient obtained by dividing (A) the product of
the Total Number and the existing Warrant Price by (B) the Current Market Price
(as defined in Section 8.1) of a share of Common Stock as at the Exchange Date.
SECTION 4. PAYMENT OF TAXES.
The Company shall pay all U.S. documentary stamp taxes, if
any, attributable to the initial issuance of the Shares; provided, however,
that the Company shall not be required to pay any tax or taxes which may be
payable with respect to any secondary transfer of the Warrant or the Shares.
SECTION 5. MUTILATED OR MISSING WARRANT.
In case the certificate or certificates evidencing a Warrant
shall be mutilated, lost, stolen or destroyed, the Company shall, at the
request of the Warrantholder, issue and deliver in exchange and substitution
for and upon cancellation of the mutilated certificate or certificates, or in
lieu of and substitution for the certificate or certificates lost, stolen or
destroyed, a new Warrant certificate or certificates of like tenor and
representing an equivalent right or interest, but only upon receipt of evidence
satisfactory to the Company of such mutilation, loss, theft or destruction of
such Warrant and of a bond of indemnity, if requested, also satisfactory in
form and amount at the applicant's cost. Applicants for such substitute Warrant
certificate shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe.
SECTION 6. RESERVATION OF SHARES OF CAPITAL STOCK.
There has been reserved, and the Company shall at all times
keep reserved so long as the Warrants remains outstanding, out of its
authorized Common Stock, such number of shares of Common Stock as shall be
subject to purchase under the Warrants. Every transfer agent for the Common
Stock and other securities of the Company issuable upon the exercise of the
Warrants shall be irrevocably authorized and directed at all times to reserve
such number of authorized shares and other securities as shall be requisite for
such purpose. The Company shall keep a copy of this Agreement on file with
every transfer agent for the Common Stock and other securities of the Company
issuable upon the exercise of the Warrants. The Company shall supply such
transfer agent with duly executed stock and other certificates for such purpose
and shall provide or otherwise make available any cash which may be payable as
provided in Sections 8 and 9 hereof.
-4-
<PAGE>
SECTION 7. WARRANT PRICE.
The price per Share (the "Warrant Price") at which Shares
shall be purchasable upon the exercise of the Warrants shall be $9.95 per
Share, subject to adjustment pursuant to Section 8 hereof.
SECTION 8. ADJUSTMENTS.
8.1. Definition of Current Market Price. For purposes of this
Section 8, the term "Current Market Price" shall mean, on any date specified
herein, (i) if the Common Stock is listed on any national securities exchange
or the Nasdaq National Market, the average of the last reported sales price (or
the average of the quoted closing bid and asked prices if there shall have been
no sales) of the Common Stock on such exchange or the Nasdaq National Market
(as the case may be) for a period of 20 trading days prior to such date, or
(ii) if the Common Stock is not so listed, on the basis of the average of the
mean of the last quoted bid and asked prices for the Common Stock for each day
in the 20 trading day period prior to such date, as reported by Nasdaq, or its
successor, or (iii) if the Common Stock is not so listed and if there are no
such closing bid and asked prices, on the basis of the fair market value per
share as reasonably determined in good faith by the Board of Directors of the
Company, but not less than the book value thereof as of the most recent fiscal
year of the Company.
8.2. Adjustment of Warrant Price and Number of Shares. The
number and kind of securities purchasable upon the exercise of the Warrants and
the Warrant Price shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
(a) Adjustments.
(i) In case the Company shall (A) pay a dividend in
shares of Common Stock or make a distribution in shares of
Common Stock, (B) subdivide its outstanding Common Stock, (C)
combine its outstanding Common Stock into a smaller number of
shares of Common Stock or (D) issue by reclassification of
its Common Stock other securities of the Company, the number
of Shares purchasable upon exercise of the Warrant
immediately prior thereto shall be adjusted so that each
Warrantholder shall be entitled to receive, upon exercise of
its Warrant, the kind and number of Shares or other
securities of the Company which it would have owned or would
have been entitled to receive after the happening of any of
the events described above had its Warrant been exercised
immediately prior to the happening of such event or any
record date with respect thereto. Any adjustment made
pursuant to this paragraph (i) shall become effective
immediately after the effective date of such event and such
adjustment shall be retroactive to the record date, if any,
for such event.
(ii) Except in respect of transactions described in
paragraph (i) above, in case the Company shall sell or issue
Common Stock or rights, options, warrants or convertible
securities (or rights, options or warrants to
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purchase convertible securities) containing the right to
subscribe for or purchase shares of Common Stock
(collectively, "Rights"), and the sale or issuance price per
share of Common Stock (or in the case of any Rights, the sum
of the consideration paid or payable for any such Right
entitling the holder thereof to acquire one share of Common
Stock and such additional consideration paid or payable upon
exercise or conversion of any such Right to acquire one share
of Common Stock) is less than the Current Market Price as
determined as of the date of such sale or issuance, then the
number of Shares purchasable upon exercise of each Warrant
shall be increased by dividing such number of Shares by a
fraction of which the numerator shall be the number of shares
of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares
which the aggregate of the offering price of the total number
of shares so offered for subscription or purchase or subject
to such Rights or (or the aggregate conversion price of the
convertible securities so offered for subscription or
purchase) would purchase at such Current Market Price and the
denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination plus the number of shares so offered for
subscription or purchase or subject to such Rights or (or
into which the convertible securities so offered for
subscription or purchase are convertible), such increase to
become effective immediately after the opening of business on
the day following the date fixed for such determination. For
the purposes of such adjustments, the Common Stock which the
holders of any such Rights shall be entitled to subscribe for
or purchase shall be deemed to be outstanding as of the date
of determination of stockholders entitled to receive such
Rights or the date of issuance of such Rights. If at the end
of the period during which such Rights are exercisable not
all such Rights shall have been exercised, the adjusted
number of Shares shall be immediately readjusted to what it
would have been based on the number of additional shares of
Common Stock actually issued. In addition, for purposes of
this subsection (ii), the number of shares of Common Stock
outstanding shall not include shares of Common Stock held in
the treasury of the Company.
(iii) Except in respect of transactions described in
paragraph (i) above, in case the Company shall declare,
order, pay or make a dividend or other distribution
(including, without limitation, any distribution of cash,
other or additional stock or other securities or property or
options), by way of dividend or spin-off, reclassification,
recapitalization or similar corporate rearrangement or
otherwise, but excluding dividends described in Section
8.2(b) hereof on the Common Stock, then in each case the
number of Shares thereafter purchasable upon the exercise of
each Warrant shall be determined by multiplying (A) the
number of Shares theretofore purchasable upon exercise of the
Warrant by (B) a fraction, of which the
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numerator shall be the then Current Market Price on the
record date for the determination of stockholders entitled to
receive such dividend or other distribution, and of which the
denominator shall be such Current Market Price on such date
minus the amount of such dividend or distribution applicable
to one share of Common Stock. The Board of Directors of the
Company shall determine the amount of such dividend or
distribution allocable to one share of Common Stock and such
determination, if reasonable and based upon the Board of
Directors' good faith business judgment, shall be binding
upon the Warrantholders. Such adjustment shall be made
whenever any such distribution is made and shall become
effective on the date of distribution retroactive to the
record date for the determination of stockholders entitled to
receive such distribution.
(iv) No adjustment in the number of Shares
purchasable hereunder shall be required unless (A) such
adjustment would require an increase or decrease of at least
point seven-five percent (0.75%) in the number of Shares then
purchasable upon the exercise of the Warrants, or (B) a
notice of a Warrantholder's election to purchase has been
received by the Company with respect to the exercise of the
balance of the Shares purchasable pursuant to such Warrant
(prior to such required adjustment); provided, however, that
any adjustments which by reason of this paragraph (iv) are
not required to be made immediately shall be carried forward
and taken into account in any subsequent adjustment. In
calculating any adjustment hereunder, the Warrant Price shall
be calculated to the nearest .001 of a cent and the number of
Shares purchasable hereunder shall be calculated to the
nearest .001 of a share.
(v) Whenever the number of Shares purchasable upon
the exercise of the Warrant is adjusted as herein provided,
the Warrant Price payable upon exercise of the Warrant shall
also be adjusted by multiplying such Warrant Price
immediately prior to such adjustment by a fraction, of which
the numerator shall be the number of Shares purchasable upon
the exercise of the Warrant immediately prior to such
adjustment, and of which the denominator shall be the number
of Shares so purchasable immediately after such adjustment.
(vi) For the purpose of this section 8.2(a), the
term "Common Stock" shall mean (A) the class of stock
designated as the Common Stock of the Company at the date of
this Agreement or (B) any other class of stock resulting from
successive changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from no par
value to par value. In the event that at any time, as a
result of an adjustment made pursuant to this Section 8 the
Warrantholders shall become entitled to purchase any
securities of the Company other than Common Stock, the
Company shall duly reserve such securities for issuance and
thereafter the number of such other securities so purchasable
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upon exercise of a Warrant and the Warrant Price of such
securities shall be subject to the adjustment from time to
time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Shares
contained in this Section 8.
If the consideration provided for in any Right or the additional
consideration, if any, payable upon the conversion or exchange of any
Right shall be reduced, or the rate at which any Right is exercisable
or convertible into or exchangeable for shares of Common Stock shall
be increased, at any time under or by reason of provisions with
respect thereto designed to protect against dilution, then, effective
concurrently with each such change, the Warrant Price then in effect
shall first be adjusted to eliminate the effects (if any) of the
issuance (or deemed issuance) of such Right on the Warrant Price and
then readjusted as if such Right had been issued on the date of such
change with the terms in effect after such change, but only if as a
result of such adjustment the Warrant Price then in effect hereunder
is thereby reduced.
(b) No Adjustment for Dividends. Except as provided in
Section 8.2(a), no adjustment with respect to any ordinary dividends
(made out of current earnings) on shares of Common Stock shall be made
during the term of the Warrants or upon the exercise of a Warrant.
(c) Preservation of Purchase Rights Upon Reclassification,
Consolidation, etc. In case of any consolidation or merger of the
Company with or into another entity as a result of which the holders
of Common Stock become holders of other shares or securities of the
Company or of another entity or person, or such holders receive cash
or other assets, or in case of any sale or conveyance to another
person of the property, assets or business of the Company as an
entirety or substantially as an entirety, the Company or such
successor or purchasing entity or person, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders
shall have the right thereafter upon payment of the Warrant Price in
effect immediately prior to such action to purchase upon exercise of
their respective Warrants the kind and amount of Shares and other
securities and property which it would have owned or have been
entitled to receive after the happening of such consolidation, merger,
sale or conveyance had its Warrant been exercised immediately prior to
such action and (ii) that the Warrants shall continue in full force
and effect notwithstanding the consummation of such transaction and
that such person or entity shall assume the obligations of the Company
hereunder. The agreements referred to in this Section 8.2(c) shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in the other provisions in
this Section 8. The provisions of this Section 8.2(c) shall similarly
apply to successive consolidations, mergers, sales or conveyances.
8.3. Statement on Warrants. Irrespective of any adjustment in
the Warrant Price or the number or kind of Shares purchasable upon the exercise
of a Warrant, a Warrant certificate or certificates therefore or thereafter
issued may continue to express the same price and number and kind of shares as
are stated in a Warrant initially issuable pursuant to this Agreement.
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<PAGE>
8.4. Notice of Adjustment. Whenever the Warrant Price shall
be adjusted pursuant to this Section 8, the Company shall forthwith file at
each office designated for the exercise of the Warrants, a statement, signed by
the Chairman of the Board, the President, any Vice President or Treasurer of
the Company, showing in reasonable detail the facts requiring such adjustment
and the Warrant Price that will be effective after such adjustment. Each such
statement shall be made available at all reasonable times for inspection by any
Warrantholder. The Company shall also cause a notice setting forth any such
adjustments to be sent by mail, first class, postage prepaid, to each
Warrantholder.
8.5. Notice of Certain Events. If at any time after the
Closing Date:
(a) the Company shall pay any dividend upon its Common Stock
or make any distribution to the holders of its Common Stock;
(b) the Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any
class or other Rights;
(c) the Company shall offer any other Rights to the holders
of its Common Stock;
(d) there shall be any capital reorganization, or
reclassification of the capital stock of the Company or any of its
subsidiaries, or consolidation or merger of the Company with or into
any other corporation or entity, or consolidation or merger of any
other corporation or entity with or into the Company, or the sale,
lease, conveyance, exchange or transfer of all or substantially all of
the property or assets of the Company to any other corporation or
entity; or
(e) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give notice to the
Warrantholders of the date on which the books of the Company shall close or a
record shall be taken for such dividend, distribution, subscription or other
rights, or (y) the date (or, if not then known, a reasonable approximation
thereof by the Company) on which such reorganization, reclassification,
consolidation, merger, sale, lease, conveyance, exchange, transfer,
dissolution, liquidation or winding up shall take place, as the case may be.
Such notice shall also specify (or, if not then known, reasonably approximate)
the date as of which the holders of Common Stock of record shall be paid or
shall receive such dividend, distribution, subscription or other rights, or
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, lease, conveyance, exchange, transfer, dissolution, liquidation
or winding up, as the case may be. Such notice shall be given at the time
notice thereof (if any) is given to the holders of Common Stock and, in any
event, not later than 20 days prior to the date specified in clause (x) or (y)
of this subparagraph, as the case may be. Such notice shall also state that the
action in question or the record date is subject to the effectiveness of a
registration statement under the Securities Act of 1933, as amended, or to a
favorable vote of stockholders, if either is required.
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8.6. Reservation. The Company shall at all times reserve and
keep available out of its authorized but unissued Common Stock the full number
of shares of Common Stock deliverable upon the exercise of the Warrants and
shall take all such action and obtain all such permits or orders as may be
necessary to enable the Company lawfully to issue such Common Stock upon the
exercise of the Warrants.
SECTION 9. FRACTIONAL INTERESTS.
The Company shall not be required to issue fractional Shares
on the exercise of the Warrants. If any fraction of a Share would, except for
the provisions of this Section 9, be issuable on the exercise of the Warrants
(or specified portions thereof), the Company shall pay an amount in cash equal
to the Current Market Price as determined pursuant to Section 8.1 above of such
fractional Share.
SECTION 10. NO RIGHTS AS STOCKHOLDERS.
Nothing contained in this Agreement or in the Warrants shall
be construed as conferring upon the Warrantholders or their transferees any
rights as a stockholder of the Company.
SECTION 11. NOTICES.
All notices and other communications under this Agreement
shall be in writing and shall be delivered by hand or mailed by overnight
courier or by registered mail or certified mail, postage prepaid:
(a) if to the Warrantholders, to each Warrantholder at the
address specified on Schedule 1 to this Agreement with respect to that
Warrantholder or at such other address as a Warrantholder may have furnished
the Company in writing, or
(b) if to the Company, at 555 Theodore Fremd Avenue, Suite
B-302, Rye, NY 10580, marked for the attention of Martin E. Franklin, Chairman,
or at such other address as it may have furnished in writing to the
Warrantholders.
Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
SECTION 12. SUCCESSORS.
All the covenants and provisions of this Agreement by or for
the benefit of the Company or the Warrantholders shall bind and inure to the
benefit of their respective successors and assigns hereunder.
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SECTION 13. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company shall not merge or consolidate with or into any
other corporation or sell all or substantially all of its property to another
corporation, unless the provisions of subsection 8.2(c) are complied with.
SECTION 14. REPRESENTATIONS.
14.1. Corporate Organization. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power to carry on its business as it is
now being conducted or currently proposed to be conducted. The Company is duly
qualified as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of its properties owned or held under
lease or the nature of its activities makes such qualification necessary,
except where the failure to be so qualified will not have a material adverse
effect on the business, properties, assets, condition (financial or otherwise),
liabilities or operations of the Company and its subsidiaries taken as a whole.
14.2. Capitalization of the Company; Title to the Shares.
(a) The authorized capital stock of the Company consists of
shares of Common Stock, par value $.01 per share and shares of
preferred stock, $.01 par value per share. As of , 1997, (i)
shares of Company Common Stock, (ii) 64,120 shares of Series A
preferred stock and (iii) shares of Series B preferred stock were
issued and outstanding. As of the date hereof, there are no bonds,
debentures, notes or other indebtedness having the right to vote on
any matters on which the Company's stockholders may vote issued or
outstanding. As of the date hereof, except for the Warrants
contemplated by this Agreement, there are no options, warrants, calls
or other rights, agreements or commitments presently outstanding
obligating the Company to issue, deliver or sell shares of its
capital stock or debt securities, or obligating the Company to grant,
extend or enter into any such option, warrant, call or other such
right, agreement or commitment.
(b) The Shares will be duly authorized and validly issued,
and will be fully paid and nonassessable and no personal liability
will attach to the ownership thereof. Upon exercise of a Warrant, the
Company will deliver valid and marketable title to the Shares issuable
as a result of such exercise, free and clear of any liens, claims,
charges, security interests, legal or equitable encumbrances,
limitations or restrictions. Except for this Agreement, there are no
contracts, agreements, understandings, arrangements or restrictions
related to the ownership or voting of the Warrants or the Shares.
SECTION 15. REGISTRATION RIGHTS
15.1. Registration on Demand.
(a) During the two-year period commencing on the date that a
Warrant is first exercised by any Warrantholder, upon prior written
notice (a "Demand Notice") to the
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Company from holders representing at least a majority of the then
outstanding Registrable Securities (as defined in subparagraph (c)
below), determined as if the Warrants had been fully exercised, to the
effect that the holders of Registrable Securities desire to register
any of their Registrable Securities under the Securities Act, the
Company shall within 10 business days after receiving any Demand
Notice give notice (the "Company's Notice") to the other holders of
Registrable Securities stating the identity of the holders requesting
registration and the number of Registrable Securities proposed to be
sold thereby, and take appropriate action as promptly as practicable
after its receipt of the Demand Notice to file with the Securities and
Exchange Commission (the "Commission") a registration statement on the
appropriate form covering all Registrable Securities specified in the
Demand Notice and by such other holders (by notice given to the
Company within 15 days after their receipt of the Company's Notice),
(ii) use commercially reasonable efforts to cause such registration
statement to become effective under the Securities Act and (iii) use
commercially reasonable efforts to qualify the Registrable Securities
subject to the Demand Notice for sale in such states as reasonably
requested by the holders of a majority of Registrable Securities to be
included in such registration, if necessary; provided such effort
shall not require the Company to qualify as a foreign corporation or
subject itself to taxation in any jurisdiction where it is not already
so qualified or subject. The Company shall be obligated to effect only
one registration pursuant to this Section 15.1.
(b) The holders of the Registrable Securities to be included
in any registration pursuant to this Section 15.1 shall be obligated
to pay all registration expenses (as that term is defined in Section
15.5 hereof) of such registration whether or not such registration is
ever deemed effective. The Company agrees to use its best efforts to
effect any registration pursuant to this Section 15.1 in a cost
effective manner, consistent with prudent business practices for such
registrations.
(c) For purposes of this Agreement, "Registrable Securities"
shall mean, collectively (i) the Shares and (ii) any securities issued
or issuable with respect to the Shares by way of stock dividend, stock
split, in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise.
Registrable Securities will cease to be such when (i) a registration
statement covering such Registrable Securities has been declared
effective, (ii) they shall have been otherwise transferred, and the
Company shall have delivered new certificates or other evidences of
ownership for them not subject to any stop transfer order or other
restriction on transfer and not bearing a legend restricting transfer
in the absence of an effective registration or an exemption from the
registration requirements of the Securities Act and subsequent
disposition of them shall not require registration or qualification of
them under the Securities Act or any similar state law then in force,
or (iii) they shall have ceased to be outstanding.
(d) Any registration initiated by the holders of Registrable
Securities as a demand registration pursuant to this Section 15.1
shall count as a demand registration for purposes of this Section 15.1
when such registration shall have been filed with the Commission and
becomes effective and in the event such registration statement is
withdrawn at the request of the initialing holder(s) of Registrable
Securities prior to its becoming effective, unless such holder pays
all expenses (as defined in Section 15.5).
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(e) Notwithstanding the provisions of Section 15.1(a) of this
Agreement, the Company shall not be required to register Registrable
Securities which, together with any other securities to be included in
such registration, are equivalent to less than 17,000 shares of Common
Stock, subject to equitable adjustment in case the Company shall (A)
pay a dividend in shares of Common Stock or make a distribution in
shares of Common Stock, (B) subdivide its outstanding Common Stock,
(C) combine its outstanding Common Stock into a smaller number of
shares of Common Stock or (D) issue by reclassification of its Common
Stock other securities of the Company.
(f) The Company shall use its best efforts to maintain the
effectiveness of a registration statement filed pursuant to this
Section 15.1 for a period of 180 days from its effective date.
(g) The managing underwriter, if any, of any offering of
Registrable Securities contemplated by this Section 15.1 shall be
chosen by the holders of a majority of Registrable Securities included
therein, which managing underwriter shall be reasonably acceptable to
the Company.
15.2. Incidental Registration.
(a) If at any time or times after the Exercisability Date,
the Company intends to file a registration statement on Form S-1, S-2
or S-3 (or other appropriate form) for the registration of an offering
of equity securities with the Commission, the Company shall notify
each of the holders of record of Registrable Securities at least 30
days prior to each such filing of the Company's intention to file such
a registration statement, such notice shall state the number of shares
of equity securities proposed to be registered thereby. If any holder
of Registrable Securities notifies the Company within 30 days after
receipt of such notice from the Company of its desire to have included
in such registration statement any of its Registrable Securities, then
the Company shall cause the Company to include such shares in such
registration statement. The Company shall pay all the "expenses" (as
defined in Section 15.5 hereof) of such registration, excluding
underwriting discounts and commissions.
(b) The Company may in its discretion withdraw any
registration statement filed pursuant to this Section 15.2 subsequent
to its filing without liability to the holders of Registrable
Securities.
15.3. Allocations. In the event that any managing underwriter
for any offering described in Section 15.2 above notifies the Company that, in
good faith, it is able to proceed with the proposed offering only with respect
to a smaller number (the "Maximum Number") of securities than the total number
of Registrable Securities proposed to be offered by holders thereof, plus the
total number of securities proposed to be offered by the Company and all others
entitled to registration rights under such registration statement, then the
aggregate number of Registrable Securities that may be included in the proposed
offering by the holders thereof and the total number of securities that may be
included in the proposed offering by all other holders (other than the Company)
including shares in such registration statement shall equal the Maximum
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Number less the number of shares proposed to be offered by the Company, such
difference to be allocated first in favor of the holders of Registrable
Securities and thereafter pro rata in accordance with the number of shares
proposed to be offered by each such party.
15.4. Indemnity. In connection with a registration statement
filed with the Commission pursuant to this Section 15, the Company shall
provide each holder of Registrable Securities included in such registration
statement, and each officer and director of any thereof, and each person who
controls such holder within the meaning of Section 15 of the Securities Act,
and Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act"),
with indemnification against any losses, claims, damages or liabilities,
reasonable attorneys fees, costs or expenses and costs and expenses of
investigating and defending any such claims, (collectively "Damages"), joint or
several, to which any of them may become subject under the federal securities
laws, or otherwise, in form and substance as is customarily given to
underwriters in an underwritten offering of securities. Each holder including
Registrable Securities in any such registration statement agrees that it shall
indemnify the Company, and each officer and director thereof, and each person
who controls the Company within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act, against any Damages, in form and substance
as is customarily given by underwriters to a corporation in an underwritten
public offering of securities; provided, however, that (i) any such holder
shall be liable under this Section 15.4 only to the extent that any such
Damages arises out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement
in reliance upon and in conformity with written information furnished by such
holder, specifically for use in the preparation thereof; and (ii) the maximum
amount which may be recovered from such holder shall be limited to the amount
of the proceeds received by such holder from the sale of his/her Registrable
Securities pursuant to such registration statement.
15.5. Expenses. The Company shall bear all expenses,
excluding fees and expenses of counsel for any selling stockholders and
excluding underwriting discounts and commissions, in connection with a
registration of Common Stock pursuant to Section 15.2. As used in this Section
15, "expenses" of a registration shall mean all expenses required to be
disclosed in Part II of the Form S-1 registration statement, or in a comparable
section of any similar form permitting an underwritten public offering, as well
as expenses of underwriters customarily reimbursed by issuers or selling
stockholders, excluding transfer taxes.
15.6. Rule 144. The Company agrees that it will file in a
timely manner all reports required to be filed by it pursuant to the Securities
Act and the Exchange Act and will take further action as and when any holder of
Registrable Securities may reasonably request in order that such holder may
effect sales of Registrable Securities pursuant to Rule 144 under the
Securities Act.
SECTION 16. APPLICABLE LAW.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE.
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SECTION 17. BENEFITS OF THIS AGREEMENT.
Except as otherwise provided herein, nothing in this
Agreement shall be construed to give to any person or corporation other than
the Company and the Warrantholders any legal or equitable right, remedy or
claim under this Agreement, and this Agreement shall be for the sole and
exclusive benefit of the Company and the Warrantholders.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed, all as of the day and year first above written.
BOLLE INC.
/s/ Martin E. Franklin
------------------------------
By: Martin E. Franklin
Title: Chairman of the Board
/s/ Maurice Bolle
------------------------------
Maurice Bolle
/s/ Robert Bolle
------------------------------
Robert Bolle
/s/ Franck Bolle
------------------------------
Franck Bolle
/s/ Patricia Bolle Passaquay
------------------------------
Patricia Bolle Passaquay
/s/ Brigitte Bolle
------------------------------
Brigitte Bolle
/s/ Christelle Roche
------------------------------
Christelle Roche
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SCHEDULE 1
Name and Address
of Warrantholder No. of Shares
- - ---------------- -------------
Mr. Maurice Bolle
13 rue Balland
01100 Oyonnax, France........................................... 66,386
Mr. Robert Bolle
58 route de Marchon
01100 Oyonnax, France........................................... 66,385
Mr. Franck Bolle
4 boulevard Dupuy
01100 Oyonnax, France........................................... 132,771
Mrs. Patricia Bolle Passaquay
6 rue General De Gaulle
01100 Arbant, France............................................ 132,771
Ms. Brigitte Bolle
25 bis boulevard de la Saussaye
92200 Neuilly-sur-Seine, France................................. 132,771
Mrs. Christelle Roche
2 rue Macrete
01100 Arbent, France............................................ 132,771
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EXHIBIT A
WARRANT No._____
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW. SUCH SECURITIES MAY
NOT BE SOLD, ASSIGNED, TRANSFERRED, EXCHANGED, MORTGAGED, PLEDGED OR
OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE
SECURITIES ACT AND STATE SECURITIES LAWS."
WARRANT TO PURCHASE UP TO ____________ SHARES
OF COMMON STOCK OF
BOLLE INC. PAR VALUE $.01 PER SHARE
Exercisable commencing July 10, 1999;
Void after July 10, 2001.
THIS CERTIFIES that, for value received, ("Holder"), or registered
assigns, is entitled, subject to the terms and conditions set forth in this
Warrant, to purchase from Bolle Inc., a Delaware corporation (the "Company"),
up to ____________ shares of Common Stock, $.01 par value, of the Company, at
any time commencing 9:00 a.m. New York City time on July ___, 1999 and
continuing up to 5 p.m. New York City time on July ___, 2001 at a price per
Share of $ , per share, such number of Shares and price per Share being
subject to adjustment from time to time as set forth in the Warrant Agreement
referred to below. This Warrant is issued pursuant to a Warrant Agreement by
and among the Company, the Holder and certain other holders of Warrants, dated
as of December ___, 1997 (the "Warrant Agreement"), and is subject to all the
terms thereof, including the limitations on transferability set forth therein.
This Warrant may be exercised by the holder hereof, in whole or in part (but
not, in certain circumstances, as to a fractional share), by the presentation
and surrender of this Warrant with the form of Election to Purchase duly
executed, at the principal office of the Company (or at such other address as
the Company may designate by notice in writing to the holder hereof at the
address of such holder appearing on the books of the Company), and upon payment
to the Company of the purchase price in cash, by cashier's check or by wire
transfer or by any other means permitted under the terms of the Warrant
Agreement. Notwithstanding the foregoing, this Warrant may not be exercised for
an amount of Shares that is less than 17,000 or the remaining Shares that such
Warrantholder is then able to purchase upon exercise of the Warrant. The Shares
so purchased shall be deemed to be issued to the holder hereof as the record
owner of such Shares as of the close of business on the date on which this
Warrant shall have been surrendered
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and payment made for such Shares. Certificates for the Shares so purchased
shall be delivered or mailed to the holder promptly after this Warrant shall
have been so exercised, and, unless this Warrant has expired or has been
exercised in full, a new Warrant identical in form but representing the number
of Shares with respect to which this Warrant shall not have been exercised
shall also be issued to the holder hereof.
Nothing contained herein shall be construed to confer upon the holder of this
Warrant, as such, any of the rights of a stockholder of the Company.
Dated: ______________
BOLLE INC.
By:
-------------------------------
[Title]
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<PAGE>
BOLLE INC.
ELECTION TO PURCHASE
Bolle Inc.:
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant for, and to purchase thereunder, Shares
provided for therein, and requests that certificates for the Shares be issued
in the name of:
- - -------------------------------------------------------------------------
(Please Print Name, Address and Social Security Number)
and, if said number of Shares shall not be the total number of Shares
purchasable hereunder, that a new Warrant certificate for the balance of the
Shares purchasable under the within Warrant certificate be registered in the
name of the undersigned Warrantholder or his/her Assignee as below indicated
and delivered to the address stated below:
Dated: ____________, 19__
Name of Warrantholder or
Assignee (Please Print):
-------------------------------------
Address:
-----------------------------------------------------
Signature:
----------------------------------
Signature Guaranteed: Note: The above signature must correspond
with the name as written upon the face of
this Warrant certificate in every
particular, without alteration or
enlargement or any change whatever, unless
this Warrant has been assigned.
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<PAGE>
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- - --------------------------------------------------------------------------
(Name and Address of Assignee must be Printed or Typewritten)
the within Warrant, hereby irrevocably constituting and appointing
Attorney to transfer said Warrant on the books of the Company, with full power
of substitution in the premises.
Dated:______________________, 19__
-------------------------------------------
Signature of Registered Holder
Signature Guaranteed: Note: The signature of this assignment must
correspond with the name as it appears upon
the face of the within Warrant certificate
in every particular, without alteration or
enlargement or any change whatever.
<PAGE>
EX 4.7
BOLLE INC.
1998 STOCK INCENTIVE PLAN
PURPOSE
The purpose of the Plan is to provide a means through which the
Company and its Subsidiaries and Affiliates may attract able persons to enter
and remain in the employ of the Company and its Subsidiaries and Affiliates and
to provide a means whereby employees, directors and consultants of the Company
and its Subsidiaries and Affiliates can acquire and maintain Common Stock
ownership, or be paid incentive compensation measured by reference to the value
of Common Stock, thereby strengthening their commitment to the welfare of the
Company and its Subsidiaries and Affiliates and promoting an identity of
interest between stockholders and these employees.
So that the appropriate incentive can be provided, the Plan provides
for granting Incentive Stock Options, Nonqualified Stock Options, Stock
Appreciation Rights, Restricted Stock Awards, Phantom Stock Unit Awards,
Performance Share Unit Awards and Stock Bonus Awards, or any combination of the
foregoing. The Plan also provides for the automatic formula grant of Restricted
Stock to Non-Employee Directors.
DEFINITIONS
The following definitions shall be applicable throughout the Plan.
<PAGE>
"Affiliate" means any affiliate of the Company within the meaning of 17
CFR ss. 230.405.
"Award" means, individually or collectively, any Incentive Stock Option,
Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock
Award, Phantom Stock Unit Award, Performance Share Unit Award, Stock Bonus
Award or Director Stock Award.
"Award Period" means a period of time within which performance is measured
for the purpose of determining whether an Award of Performance Share Units
has been earned.
"BEC" means BEC Group, Inc., a Delaware corporation and former Parent of
the Company.
"Board" means the Board of Directors of the Company.
"Cause" means the Company, a Subsidiary or Affiliate having cause to
terminate a Participant's employment or service under any existing
employment, consulting or any other agreement between the Participant and
the Company or a Subsidiary or Affiliate or, in the absence of such an
employment, consulting or other agreement, upon (i) the determination by
the Committee that the Participant has ceased to perform his duties to the
Company, a Subsidiary or Affiliate (other than as a result of his
incapacity due to physical or mental illness or injury), which failure
amounts to an intentional and extended neglect of his duties to such
party, (ii) the Committee's determination that the Participant has engaged
or is about to engage in conduct materially injurious to the Company, a
Subsidiary or Affiliate or (iii) the Participant having been convicted of
a felony.
"Change in Control" shall, unless the Board otherwise directs by
resolution adopted prior thereto or, in the case of a particular award,
the applicable Award agreement states otherwise, be deemed to occur if (i)
any "person" (as that term is used in Sections 13 and 14(d)(2) of the
Exchange Act) is or becomes the beneficial owner (as that term is used in
Section 13(d) of the Exchange Act), directly or indirectly, of 50% or more
of either the outstanding shares of Common Stock or the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally, (ii) during any period of two consecutive years beginning on
the date of the consummation of the Spinoff, individuals who constitute
the Board at the beginning of such period cease for any reason to
constitute at least a majority thereof, unless the election or the
nomination for election by the Company's shareholders of each new director
was approved by a vote of at least three-quarters of the directors then
still in office who were directors, or approved by directors, at the
beginning of the Spinoff period or (iii) the Company undergoes a
liquidation or dissolution or a sale of all or substantially all of the
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assets of the Company. Neither the Spinoff nor any merger, consolidation
or corporate reorganization in which the owners of the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally prior to said combination, own 50% or more of the resulting
entity's outstanding voting securities shall, by itself, be considered a
Change in Control.
"Code" means the Internal Revenue Code of 1986, as amended. Reference in
the Plan to any section of the Code shall be deemed to include any
amendments or successor provisions to such section and any regulations
under such section.
"Committee" means the full Board, the Compensation Committee of the Board
or such other committee of at least two people as the Board may appoint to
administer the Plan.
"Common Stock" means the common stock par value $0.01 per share, of the
Company.
"Company" means Bolle Inc.
"Date of Grant" means the date on which the granting of an Award is
authorized or such other date as may be specified in such authorization.
"Director Stock Option" means the Award of a Nonqualified Stock Option to
Non-Employee Directors pursuant to Section 12.
"Director Stock Option Agreement" means the agreement entered into with
respect to a Director Stock Option pursuant to Section 12.
"Disability" means disability as defined in the long-term disability plan
of the Company, a Subsidiary or Affiliate, as may be applicable to the
Participant in question, or, in the absence of such a plan, the complete
and permanent inability by reason of illness or accident to perform the
duties of the occupation at which a Participant was employed or served
when such disability commenced or, if the Participant was retired when
such disability commenced, the inability to engage in any substantial
gainful activity, in either case as determined by the Committee based upon
medical evidence acceptable to it.
"Disinterested Person" means a person who is (i) a "nonemployee director"
within the meaning of Rule 16b-3 under the Exchange Act, or any successor
rule or regulation and (ii) an "outside director" within the meaning of
Section 162(m) of the Code; provided, however, that clause (ii) shall
apply only with respect to grants of Awards with respect to which the
Company's tax deduction could be limited by Section 162(m) of the Code if
such clause did not apply.
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<PAGE>
"Eligible Person" means any (i) person regularly employed by the Company,
a Subsidiary or Affiliate who satisfies all of the requirements of Section
6; provided, however, that no such employee covered by a collective
bargaining agreement shall be an Eligible Person unless and to the extent
that such eligibility is set forth in such collective bargaining agreement
or in an agreement or instrument relating thereto; (ii) director of the
Company, a Subsidiary or Affiliate; or (iii) consultant to the Company, a
Subsidiary or Affiliate.
"Exchange Act" means the Securities Exchange Act of 1934.
"Fair Market Value" on a given date means (i) if the Stock is listed on a
national securities exchange, the mean between the highest and lowest sale
prices reported as having occurred on the primary exchange with which the
Stock is listed and traded on the date prior to such date, or, if there is
no such sale on that date, then on the last preceding date on which such a
sale was reported; (ii) if the Stock is not listed on any national
securities exchange but is quoted in the National Market System of the
National Association of Securities Dealers Automated Quotation System on a
last sale basis, the average between the high bid price and low ask price
reported on the date prior to such date, or, if there is no such sale on
that date, then on the last preceding date on which a sale was reported;
(iii) if the Stock is not listed on a national securities exchange nor
quoted in the National Market System of the National Association of
Securities Dealers Automated Quotation System on a last sale basis, the
amount determined by the Committee to be the fair market value based upon
a good faith attempt to value the Stock accurately and computed in
accordance with applicable regulations of the Internal Revenue Service; or
(iv) notwithstanding clauses (i) - (iii) above, with respect to Awards
granted as of the consummation of the Spinoff, the initial offering price
of the Stock to the public in connection with the Spinoff.
"Holder" means a Participant who has been granted an Award.
"Incentive Stock Option" means an Option granted by the Committee to a
Participant under the Plan which is designated by the Committee as an
Incentive Stock Option pursuant to Section 422 of the Code.
"Non-Employee Director" means a director of the Company who is not also an
employee of the Company.
"Nonqualified Stock Option" means an Option granted by the Committee to a
Participant under the Plan which is not designated by the Committee as an
Incentive Stock Option.
"Normal Termination" means termination of employment or service with the
Company and all Subsidiaries and Affiliates:
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Upon retirement pursuant to the retirement plan of the Company, a
Subsidiary or Affiliate, as may be applicable at the time to the
Participant in question;
On account of Disability;
With the written approval of the Committee; or
By the Company, a Subsidiary or Affiliate without Cause.
"Option" means an Award granted under Section 7 of the Plan.
"Option Period" means the period described in Section 7(c).
"Option Price" means the exercise price set for an Option described in
Section 7(a).
(ab) "Participant" means an Eligible Person who has been selected by
the Committee to participate in the Plan and to receive an Award pursuant to
Section 6 and a Non-Employee Director who has received an automatic grant of
Options pursuant to Section 12.
(ac) "Performance Goals" means the performance objectives of the
Company, a Subsidiary or Affiliate during an Award Period or Restricted Period
established for the purpose of determining whether, and to what extent, Awards
will be earned for an Award Period or Restricted Period.
(ad) "Performance Share Unit" means a hypothetical investment
equivalent equal to one share of Stock granted in connection with an Award made
under Section 9 of the Plan.
(ae) "Phantom Stock Unit" means a hypothetical investment equivalent
equal to one share of Stock granted in connection with an Award made under
Section 10 of the Plan.
(af) "Plan" means the Company's 1998 Stock Incentive Plan.
(ag) "Restricted Period" means, with respect to any share of
Restricted Stock or any Phantom Stock Unit, the period of time determined by
the Committee during which such Award is subject to the restrictions set forth
in Section 10.
(ah) "Restricted Stock" means shares of Stock issued or transferred to
a Participant subject to forfeiture and the other restrictions set forth in
Section 10.
(ai) "Restricted Stock Award" means an Award of Restricted Stock
granted under Section 10 of the Plan.
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<PAGE>
(aj) "Securities Act" means the Securities Act of 1933, as amended.
(ak) "Spinoff" means the pro rata spinoff to the stockholders of BEC
of all of the common stock of the Company held by BEC in connection with a
Registration Statement on Form S-1.
(al) "Stock" means the Common Stock or such other authorized shares of
stock of the Company as the Committee may from time to time authorize for use
under the Plan.
(am) "Stock Appreciation Right" or "SAR" means an Award granted under
Section 8 of the Plan.
(an) "Stock Bonus" means an Award granted under Section 11 of the
Plan.
(ao) "Stock Option Agreement" means the agreement between the Company
and a Participant who has been granted an Option pursuant to Section 7 which
defines the rights and obligations of the parties as required in Section 7(d).
(ap) "Subsidiary" means any subsidiary of the Company as defined in
Section 424(f) of the Code.
(aq) "Vested Unit" shall have the meaning ascribed thereto in Section
10(e).
EFFECTIVE DATE, DURATION
The Plan is effective as of January , 1998, the date of adoption of
the Plan by the Board.
The expiration date of the Plan, after which no Awards may be granted
hereunder, shall be January , 2008; provided, however, that the administration
of the Plan shall continue in effect until all matters relating to the payment
of Awards previously granted have been settled.
ADMINISTRATION
The Committee shall administer the Plan. Unless otherwise determined
by the Board, each member of the Committee shall, at the time he takes any
action with respect to an Award under the Plan, be a Disinterested Person. The
majority of the members of the Committee shall constitute a quorum. The acts of
a majority of the members present at any meeting at which a quorum is present
or acts approved in writing by a majority of the Committee shall be deemed the
acts of the Committee.
Subject to the provisions of the Plan, the Committee shall have
exclusive power to:
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<PAGE>
Select the Eligible Persons to participate in the Plan;
Determine the nature and extent of the Awards, other than Director Stock
Options, to be made to each Participant;
Determine the time or times when Awards, other than Director Stock
Options, will be made;
Determine the duration of each Award Period and Restricted Period, except
with respect to a Director Stock Option;
Determine the conditions to which the payment of Awards, other than
Director Stock Options, may be subject;
Establish the Performance Goals for each Award Period;
Prescribe the form of Stock Option Agreement or other form or forms
evidencing Awards; and
Cause records to be established in which there shall be entered, from time
to time as Awards are made to Participants, the date of each Award, the
number of Incentive Stock Options, Nonqualified Stock Options, SARs,
Phantom Stock Units, Performance Share Units, shares of Restricted Stock
and Stock Bonuses awarded to each Participant, the expiration date, the
Award Period and the duration of any applicable Restricted Period.
The Committee shall have the authority, subject to the provisions of
the Plan, to establish, adopt, or revise such rules and regulations and to make
all such determinations relating to the Plan as it may deem necessary or
advisable for the administration of the Plan. The Committee's interpretation of
the Plan or any documents evidencing Awards granted pursuant thereto and all
decisions and determinations by the Committee with respect to the Plan shall be
final, binding, and conclusive on all parties unless otherwise determined by
the Board.
GRANT OF AWARDS; SHARES SUBJECT TO THE PLAN
The Committee may, from time to time, grant Awards of Options, Stock
Appreciation Rights, Restricted Stock, Phantom Stock Units, Performance Share
Units and/or Stock Bonuses to one or more Eligible Persons; provided, however,
that:
Subject to Section 14, the aggregate number of shares of Stock available
for issuance with respect to all Awards is 2,000,000 shares;
Such shares shall be deemed to have been used in payment of Awards whether
they are actually delivered or the Fair Market Value equivalent of such
shares is paid in cash. In the event any Option, SAR not attached to an
Option, Restricted Stock, Phantom Stock Unit or Performance Share Unit
shall be
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<PAGE>
surrendered, terminate, expire, or be forfeited, the number of shares of
Stock no longer subject thereto shall thereupon be released and shall
thereafter be available for new Awards under the Plan;
Stock delivered by the Company in settlement of Awards under the Plan may
be authorized and unissued Stock or Stock held in the treasury of the
Company or may be purchased on the open market or by private purchase; and
No person may be granted Options or SARs under the Plan with respect to
more than 2,000,000 shares of Stock.
ELIGIBILITY
Participation shall be limited to Eligible Persons who have received
written notification from the Committee, or from a person designated by the
Committee, that they have been selected to participate in the Plan and
Non-Employee Directors who receive Director Stock Options.
DISCRETIONARY GRANT OF STOCK OPTIONS
The Committee is authorized to grant one or more Incentive Stock
Options or Nonqualified Stock Options to any Eligible Person; provided,
however, that no Incentive Stock Options shall be granted to any Eligible
Person who is not an employee of the Company or a Subsidiary. Each Option so
granted shall be subject to the following conditions, or to such other
conditions as may be reflected in the applicable Stock Option Agreement.
OPTION PRICE. The exercise price ("Option Price") per share of Stock for
each Option shall be set by the Committee at the time of grant but shall
not be less than (i) in the case of an Incentive Stock Option, and subject
to Section 7(e), the Fair Market Value of a share of Stock at the Date of
Grant, and (ii) in the case of a Non-Qualified Stock Option, the par value
of a share of Stock; provided, however, that all Options intended to
qualify as "performance-based compensation" under Section 162(m) of the
Code shall have an Option Price per share of Stock no less than the Fair
Market Value of a share of Stock on the Date of Grant.
MANNER OF EXERCISE AND FORM OF PAYMENT. Options which have become
exercisable may be exercised by delivery of written notice of exercise to
the Committee accompanied by payment of the Option Price. The Option Price
shall be payable in cash and/or shares of Stock valued at the Fair Market
Value at the time the Option is exercised (provided, however, that such
shares have either been held for six months or previously acquired on the
open market) or, in the discretion of the Committee, either (i) in other
property having a fair market value on the date of exercise equal to the
Option Price, or (ii) by delivering to the Committee a copy of irrevocable
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<PAGE>
instructions to a stockbroker to deliver promptly to the Company an amount
of sale or loan proceeds sufficient to pay the Option Price.
OPTION PERIOD AND EXPIRATION. Options shall vest and become exercisable in
such manner and on such date or dates determined by the Committee and
shall expire after such period, not to exceed ten years, as may be
determined by the Committee (the "Option Period"); provided, however, that
notwithstanding any vesting dates set by the Committee, the Committee may
in its sole discretion accelerate the exercisability of any Option for any
reason, which acceleration shall not affect the terms and conditions of
any such Option other than with respect to exercisability. If an Option is
exercisable in installments, such installments or portions thereof which
become exercisable shall remain exercisable until the Option expires.
Unless otherwise stated in the applicable Option Agreement, the Option
shall expire earlier than the end of the Option Period in the following
circumstances:
If prior to the end of the Option Period, the Holder shall undergo a
Normal Termination, the Option shall expire on the earlier of the last
day of the Option Period or the date that is three months after the
date of such Normal Termination. In such event, the Option shall
remain exercisable by the Holder until its expiration, only to the
extent the Option was exercisable at the time of such Normal
Termination.
If the Holder dies prior to the end of the Option Period and while
still in the employ or service of the Company, a Subsidiary or
Affiliate, or within three months of Normal Termination, the Option
shall expire on the earlier of the last day of the Option Period or
the date that is twelve months after the date of death of the Holder.
In such event, the Option shall remain exercisable by the person or
persons to whom the Holder's rights under the Option pass by will or
the applicable laws of descent and distribution until its expiration,
only to the extent the Option was exercisable by the Holder at the
time of death.
If the Holder ceases employment or service with the Company and all
Subsidiaries and Affiliates for reasons other than Normal Termination
or death, the Option shall expire immediately upon such cessation of
employment or service.
STOCK OPTION AGREEMENT - OTHER TERMS AND CONDITIONS. Each Option granted
under the Plan shall be evidenced by a Stock Option Agreement, which shall
contain such provisions as may be determined by the Committee and, except
as may be specifically stated otherwise in such Stock Option Agreement,
which shall be subject to the following terms and conditions:
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Each Option or portion thereof that is exercisable shall be
exercisable for the full amount or for any part thereof.
Each share of Stock purchased through the exercise of an Option shall
be paid for in full at the time of the exercise. Each Option shall
cease to be exercisable, as to any share of Stock, when the Holder
purchases the share or exercises a related SAR or when the Option
expires.
Subject to Section 13(k), Options shall not be transferable by the
Holder except by will or the laws of descent and distribution and
shall be exercisable during the Holder's lifetime only by him.
Each Option shall vest and become exercisable by the Holder in
accordance with the vesting schedule established by the Committee and
set forth in the Stock Option Agreement.
Each Stock Option Agreement may contain a provision that, upon demand
by the Committee for such a representation, the Holder shall deliver
to the Committee at the time of any exercise of an Option a written
representation that the shares to be acquired upon such exercise are
to be acquired for investment and not for resale or with a view to the
distribution thereof. Upon such demand, delivery of such
representation prior to the delivery of any shares issued upon
exercise of an Option shall be a condition precedent to the right of
the Holder or such other person to purchase any shares. In the event
certificates for Stock are delivered under the Plan with respect to
which such investment representation has been obtained, the Committee
may cause a legend or legends to be placed on such certificates to
make appropriate reference to such representation and to restrict
transfer in the absence of compliance with applicable federal or state
securities laws.
Each Incentive Stock Option Agreement shall contain a provision
requiring the Holder to notify the Company in writing immediately
after the Holder makes a disqualifying disposition of any Stock
acquired pursuant to the exercise of such Incentive Stock Option. A
disqualifying disposition is any disposition (including any sale) of
such Stock before the later of (a) two years after the Date of Grant
of the Incentive Stock Option or (b) one year after the date the
Holder acquired the Stock by exercising the Incentive Stock Option.
INCENTIVE STOCK OPTION GRANTS TO 10% STOCKHOLDERS. Notwithstanding
anything to the contrary in this Section 7, if an Incentive Stock Option
is granted to a Holder who owns stock representing more than ten percent
of the voting power of all classes of stock of the Company or of a
Subsidiary, the Option Period shall not exceed five years from the Date of
Grant of such Option and the Option Price shall be at least
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110 percent of the Fair Market Value (on the Date of Grant) of the Stock
subject to the Option.
$100,000 PER YEAR LIMITATION FOR INCENTIVE STOCK OPTIONS. To the extent
the aggregate Fair Market Value (determined as of the Date of Grant) of
Stock for which Incentive Stock Options are exercisable for the first time
by any Participant during any calendar year (under all plans of the
Company and its Subsidiaries) exceeds $100,000, such excess Incentive
Stock Options shall be treated as Nonqualified Stock Options.
VOLUNTARY SURRENDER. The Committee may permit the voluntary surrender of
all or any portion of any Nonqualified Stock Option and its corresponding
SAR, if any, granted under the Plan to be conditioned upon the granting to
the Holder of a new Option for the same or a different number of shares as
the Option surrendered or require such voluntary surrender as a condition
precedent to a grant of a new Option to such Participant. Such new Option
shall be exercisable at an Option Price, during an Option Period, and in
accordance with any other terms or conditions specified by the Committee
at the time the new Option is granted, all determined in accordance with
the provisions of the Plan without regard to the Option Price, Option
Period, or any other terms and conditions of the Nonqualified Stock Option
surrendered.
STOCK APPRECIATION RIGHTS
Any Option granted under the Plan may include SARs, either at the Date
of Grant or, except in the case of an Incentive Stock Option, by subsequent
amendment. The Committee also may award SARs to Eligible Persons independent of
any Option. An SAR shall be subject to such terms and conditions not
inconsistent with the Plan as the Committee shall impose, including, but not
limited to, the following:
VESTING. SARs granted in connection with an Option shall become
exercisable, be transferable and shall expire according to the same
vesting schedule, transferability rules and expiration provisions as the
corresponding Option. An SAR granted independent of an Option shall become
exercisable, be transferable and shall expire in accordance with a vesting
schedule, transferability rules and expiration provisions as established
by the Committee and reflected in an Award agreement.
AUTOMATIC EXERCISE. If on the last day of the Option Period (or in the
case of an SAR independent of an Option, the period established by the
Committee after which the SAR shall expire), the Fair Market Value of the
Stock exceeds the Option Price (or in the case of an SAR granted
independent of an Option, the Fair Market Value of the Stock on the Date
of Grant), the Holder has not exercised the SAR or the corresponding
Option, and neither the SAR nor the
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<PAGE>
corresponding Option has expired, such SAR shall be deemed to have been
exercised by the Holder on such last day and the Company shall make the
appropriate payment therefor.
PAYMENT. Upon the exercise of an SAR, the Company shall pay to the Holder
an amount equal to the number of shares subject to the SAR multiplied by
the excess, if any, of the Fair Market Value of one share of Stock on the
exercise date over the Option Price, in the case of an SAR granted in
connection with an Option, or the Fair Market Value of one share of Stock
on the Date of Grant, in the case of an SAR granted independent of an
Option. With respect to SARs exercised before the Company has been subject
to the reporting requirements of Section 13(a) of the Exchange Act for one
year, the Company shall issue or transfer to the Participant shares of
Stock with a Fair Market Value at such time equal to 100 percent of any
such excess. With respect to SARs exercised after the Company has been
subject to such reporting requirements for at least one year, the Company
shall pay such excess in cash, in shares of Stock valued at Fair Market
Value, or any combination thereof, as determined by the Committee.
Fractional shares shall be settled in cash.
METHOD OF EXERCISE. A Participant may exercise an SAR at such time or
times as may be determined by the Committee at the time of grant by filing
an irrevocable written notice with the Committee or its designee,
specifying the number of SARs to be exercised, and the date on which such
SARs were awarded.
EXPIRATION. Except as otherwise provided in the case of SARs granted in
connection with Options, an SAR shall expire on a date designated by the
Committee which is not later than ten years after the Date of Grant of the
SAR.
PERFORMANCE SHARES
AWARD GRANTS. The Committee is authorized to establish Performance Share
programs to be effective over designated Award Periods determined by the
Committee. At the beginning of each Award Period, the Committee will
establish in writing Performance Goals based upon financial objectives for
the Company for such Award Period and a schedule relating the
accomplishment of the Performance Goals to the Awards to be earned by
Participants. Performance Goals may include absolute or relative growth in
earnings per share or rate of return on stockholders' equity or other
measurement of corporate performance and may be determined on an
individual basis or by categories of Participants. The Committee shall
determine the number of Performance Share Units to be awarded, if any, to
each Participant who is selected to receive such an Award. The Committee
may add new Participants to a Performance Share program after its
commencement by making pro rata grants.
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DETERMINATION OF AWARD. At the completion of a Performance Share Award
Period, or at other times as specified by the Committee, the Committee
shall calculate the number of shares of Stock earned with respect to each
Participant's Performance Share Unit Award by multiplying the number of
Performance Share Units granted to the Participant by a performance factor
representing the degree of attainment of the Performance Goals.
PARTIAL AWARDS. A Participant for less than a full Award Period, whether
by reason of commencement or termination of employment or otherwise, shall
receive such portion of an Award, if any, for that Award Period as the
Committee shall determine.
PAYMENT OF PERFORMANCE SHARE UNIT AWARDS. Performance Share Unit Awards
shall be payable in that number of shares of Stock determined in
accordance with Section 9(b); provided, however, that, at its discretion,
the Committee may make payment to any Participant in the form of cash upon
the specific request of such Participant. The amount of any payment made
in cash shall be based upon the Fair Market Value of the Stock on the day
prior to payment. Payments of Performance Share Unit Awards shall be made
as soon as practicable after the completion of an Award Period.
ADJUSTMENT OF PERFORMANCE GOALS. The Committee may, during the Award
Period, make such adjustments to Performance Goals as it may deem
appropriate, to compensate for, or reflect, (i) extraordinary or
non-recurring events experienced during an Award Period by the Company or
by any other corporation whose performance is relevant to the
determination of whether Performance Goals have been attained; (ii) any
significant changes that may have occurred during such Award Period in
applicable accounting rules or principles or changes in the Company's
method of accounting or in that of any other corporation whose performance
is relevant to the determination of whether an Award has been earned or
(iii) any significant changes that may have occurred during such Award
Period in tax laws or other laws or regulations that alter or affect the
computation of the measures of Performance Goals used for the calculation
of Awards; provided, however, that with respect to such Awards intended to
qualify as "performance-based compensation" under Section 162(m) of the
Code, such adjustment shall be made only to the extent that the Committee
determines that such adjustments may be made without a loss of
deductibility for such Award under Section 162(m) of the Code.
DISCRETIONARY RESTRICTED STOCK AWARDS AND PHANTOM STOCK UNITS
AWARD OF RESTRICTED STOCK AND PHANTOM STOCK UNITS.
The Committee shall have the authority (1) to grant Restricted Stock
and Phantom Stock Unit Awards to Eligible
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Persons, (2) to issue or transfer Restricted Stock to Participants,
and (3) to establish terms, conditions and restrictions applicable to
such Restricted Stock and Phantom Stock Units, including the
Restricted Period, which may differ with respect to each grantee, the
time or times at which Restricted Stock or Phantom Stock Units shall
be granted or become vested and the number of shares or units to be
covered by each grant.
The Holder of a Restricted Stock Award shall execute and deliver to
the Company an Award agreement with respect to the Restricted Stock
setting forth the restrictions applicable to such Restricted Stock. If
the Committee determines that the Restricted Stock shall be held in
escrow rather than delivered to the Holder pending the release of the
applicable restrictions, the Holder additionally shall execute and
deliver to the Company (i) an escrow agreement satisfactory to the
Committee, and (ii) the appropriate blank stock powers with respect to
the Restricted Stock covered by such agreements. If a Participant
shall fail to execute a Restricted Stock agreement and, if applicable,
an escrow agreement and stock powers, the Award shall be null and
void. Subject to the restrictions set forth in Section 10(b), the
Holder shall generally have the rights and privileges of a stockholder
as to such Restricted Stock, including the right to vote such
Restricted Stock. At the discretion of the Committee, cash dividends
and stock dividends with respect to the Restricted Stock may be either
currently paid to the Holder or withheld by the Company for the
Holder's account, and interest may be paid on the amount of cash
dividends withheld at a rate and subject to such terms as determined
by the Committee. Cash dividends or stock dividends so withheld by the
Committee shall not be subject to forfeiture.
Upon the Award of Restricted Stock, the Committee shall cause a stock
certificate registered in the name of the Holder to be issued and, if
it so determines, deposited together with the stock powers with an
escrow agent designated by the Committee. If an escrow arrangement is
used, the Committee shall cause the escrow agent to issue to the
Holder a receipt evidencing any stock certificate held by it
registered in the name of the Holder.
The terms and conditions of a grant of Phantom Stock Units shall be
reflected in a written Award agreement. No shares of Stock shall be
issued at the time a Phantom Stock Unit Award is made, and the Company
will not be required to set aside a fund for the payment of any such
Award. Holders of Phantom Stock Units shall receive an amount equal to
the cash dividends paid by the Company upon one share of Stock for
each Phantom Stock Unit then credited to such Holder's account
("Dividend Equivalents"). The Committee shall, in its sole discretion,
determine whether to credit to the
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account of, or to currently pay to, each Holder of an Award of Phantom
Stock Units such Dividend Equivalents. Dividend Equivalents credited
to a Holder's account shall be subject to forfeiture on the same basis
as the related Phantom Stock Units, and may bear interest at a rate
and subject to such terms as are determined by the Committee.
RESTRICTIONS.
Restricted Stock awarded to a Participant shall be subject to the
following restrictions until the expiration of the Restricted Period,
and to such other terms and conditions as may be set forth in the
applicable Award agreement: (1) if an escrow arrangement is used, the
Holder shall not be entitled to delivery of the stock certificate; (2)
the shares shall be subject to the restrictions on transferability set
forth in the Award agreement; (3) the shares shall be subject to
forfeiture to the extent provided in subparagraph (d) and the Award
Agreement and, to the extent such shares are forfeited, the stock
certificates shall be returned to the Company, and all rights of the
Holder to such shares and as a shareholder shall terminate without
further obligation on the part of the Company.
Phantom Stock Units awarded to any Participant shall be subject to (1)
forfeiture until the expiration of the Restricted Period, to the
extent provided in subparagraph (d) and the Award agreement, and to
the extent such Awards are forfeited, all rights of the Holder to such
Awards shall terminate without further obligation on the part of the
Company and (2) such other terms and conditions as may be set forth in
the applicable Award agreement.
The Committee shall have the authority to remove any or all of the
restrictions on the Restricted Stock and Phantom Stock Units whenever
it may determine that, by reason of changes in applicable laws or
other changes in circumstances arising after the date of the
Restricted Stock Award or Phantom Stock Award, such action is
appropriate.
RESTRICTED PERIOD. The Restricted Period of Restricted Stock and Phantom
Stock Units shall commence on the Date of Grant and shall expire from time
to time as to that part of the Restricted Stock and Phantom Stock Units
indicated in a schedule established by the Committee.
FORFEITURE PROVISIONS. Except to the extent determined by the Committee
and reflected in the underlying Award agreement, in the event a Holder
terminates employment with the Company and all Subsidiaries and Affiliates
during a Restricted Period, that portion of the Award with respect to
which restrictions have not expired ("Non-Vested Portion") shall be
treated as follows.
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Upon the voluntary resignation of a Participant or discharge by the
Company, a Subsidiary or Affiliate for Cause, the Non-Vested Portion
of the Award shall be completely forfeited.
Upon Normal Termination, the Non-Vested Portion of the Award shall be
prorated for service during the Restricted Period and shall be
received as soon as practicable following termination.
Upon death, the Non-Vested Portion of the Award shall be prorated for
service during the Restricted Period and paid to the Participant's
beneficiary as soon as practicable following death.
DELIVERY OF RESTRICTED STOCK AND SETTLEMENT OF PHANTOM STOCK UNITS. Upon
the expiration of the Restricted Period with respect to any shares of
Stock covered by a Restricted Stock Award, the restrictions set forth in
Section 10(b) and the Award agreement shall be of no further force or
effect with respect to shares of Restricted Stock which have not then been
forfeited. If an escrow arrangement is used, upon such expiration, the
Company shall deliver to the Holder, or his beneficiary, without charge,
the stock certificate evidencing the shares of Restricted Stock which have
not then been forfeited and with respect to which the Restricted Period
has expired (to the nearest full share) and any cash dividends or stock
dividends credited to the Holder's account with respect to such Restricted
Stock and the interest thereon, if any.
Upon the expiration of the Restricted Period with respect to any
Phantom Stock Units covered by a Phantom Stock Unit Award, the Company shall
deliver to the Holder, or his beneficiary, without charge, one share of Stock
for each Phantom Stock Unit which has not then been forfeited and with respect
to which the Restricted Period has expired ("Vested Unit") and cash equal to
any Dividend Equivalents credited with respect to each such Vested Unit and the
interest thereon, if any; provided, however, that, if so noted in the
applicable Award agreement, the Committee may, in its sole discretion, elect to
pay cash or part cash and part Stock in lieu of delivering only Stock for
Vested Units. If cash payment is made in lieu of delivering Stock, the amount
of such payment shall be equal to the Fair Market Value of the Stock as of the
date on which the Restricted Period lapsed with respect to such Vested Unit.
STOCK RESTRICTIONS. Each certificate representing Restricted Stock awarded
under the Plan shall bear the following legend until the lapse of all
restrictions with respect to such Stock:
"Transfer of this certificate and the shares represented
hereby is restricted pursuant to the terms of a Restricted Stock
Agreement, dated as of , between
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Bolle Inc. and . A copy of such Agreement is on file at the
offices of the Company at ."
Stop transfer orders shall be entered with the Company's transfer agent and
registrar against the transfer of legended securities.
STOCK BONUS AWARDS
The Committee may issue unrestricted Stock under the Plan to Eligible
Persons, alone or in tandem with other Awards, in such amounts and subject to
such terms and conditions as the Committee shall from time to time in its sole
discretion determine. Stock Bonus Awards under the Plan shall be granted as, or
in payment of, a bonus, or to provide incentives or recognize special
achievements or contributions.
AUTOMATIC GRANTS OF STOCK OPTIONS TO NON-EMPLOYEE DIRECTORS
Upon the consummation of the Spinoff each Non-Employee Director shall
be automatically granted a Nonqualified Stock Option to purchase 3,333 shares
of Stock. Thereafter, on the date any person first becomes a Non-Employee
Director, such person shall be automatically granted without further action by
the Board or the Committee a Nonqualified Stock Option to purchase 3,333 shares
of Stock. Thereafter, beginning in 1999, for the remainder of the term of the
Plan and provided he remains a Non-Employee Director of the Company, on the
date of each of the Company's Annual Meeting of Stockholders, each Non-Employee
Director shall be automatically granted without further action by the Board or
the Committee a Nonqualified Stock Option to purchase 1,000 shares of Stock.
All such Options granted to Non-Employee Directors shall hereinafter be
referred to as Director Stock Options.
(a) OPTION PRICE; TERM. All Director Stock Options shall have an
Option Price per share equal to the Fair Market Value of a share of Stock on
the Date of Grant. All Director Stock Options shall vest and become exercisable
over a period of four years at the rate of 25% of each grant annually on each
of the four consecutive anniversaries of the Date of Grant directly following
the Date of Grant provided the Non-Employee Director's services as a director
continues through each such anniversary. The term of each Non-Employee Director
Option ("Term"), after which each such Option shall expire, shall be ten years
from the date of Grant.
(b) EXPIRATION. If prior to the expiration of the Term of a Director
Stock Option the Non-Employee Director shall cease to be a member of the Board
for any reason other than his death, the
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Director Stock Option shall expire on the earlier of the expiration of the Term
or the date that is three months after the date of such cessation. If prior to
the expiration of the Term of a Director Stock Option a Non-Employee Director
shall cease to be a member of the Board by reason of his death, the Director
Stock Option shall expire on the earlier of the expiration of the Term or the
date that is one year after the date of such cessation. In the event a
Non-Employee Director ceases to be a member of the Board for any reason, any
unexpired Director Stock Option shall thereafter be exercisable until its
expiration only to the extent that such Option was exercisable at the time of
such cessation.
(c) DIRECTOR STOCK OPTION AGREEMENT. Each Director Stock Option shall
be evidenced by a Director Stock Option Agreement, which shall contain such
provisions as may be determined by the Committee.
(d) NONTRANSFERABILITY. Subject to Section 13(k), Director Stock
Options shall not be transferable except by will or the laws of descent and
distribution and shall be exercisable during the Non-Employee Director's
lifetime only by him.
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GENERAL
ADDITIONAL PROVISIONS OF AN AWARD. Awards under the Plan also may be
subject to such other provisions (whether or not applicable to the benefit
awarded to any other Participant) as the Committee determines appropriate
including, without limitation, provisions to assist the Participant in
financing the purchase of Stock upon the exercise of Options, provisions
for the forfeiture of or restrictions on resale or other disposition of
shares of Stock acquired under any Award, provisions giving the Company
the right to repurchase shares of Stock acquired under any Award in the
event the Participant elects to dispose of such shares, and provisions to
comply with Federal and state securities laws and Federal and state tax
withholding requirements. Any such provisions shall be reflected in the
applicable Award agreement.
PRIVILEGES OF STOCK OWNERSHIP. Except as otherwise specifically provided
in the Plan, no person shall be entitled to the privileges of stock
ownership in respect of shares of Stock which are subject to Awards
hereunder until such shares have been issued to that person.
GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company to make
payment of Awards in Stock or otherwise shall be subject to all applicable
laws, rules, and regulations, and to such approvals by governmental
agencies as may be required. Notwithstanding any terms or conditions of
any Award to the contrary, the Company shall be under no obligation to
offer to sell or to sell and shall be prohibited from offering to sell or
selling any shares of Stock pursuant to an Award unless such shares have
been properly registered for sale pursuant to the Securities Act with the
Securities and Exchange Commission or unless the Company has received an
opinion of counsel, satisfactory to the Company, that such shares may be
offered or sold without such registration pursuant to an available
exemption therefrom and the terms and conditions of such exemption have
been fully complied with. The Company shall be under no obligation to
register for sale under the Securities Act any of the shares of Stock to
be offered or sold under the Plan. If the shares of Stock offered for sale
or sold under the Plan are offered or sold pursuant to an exemption from
registration under the Securities Act, the Company may restrict the
transfer of such shares and may legend the Stock certificates representing
such shares in such manner as it deems advisable to ensure the
availability of any such exemption.
TAX WITHHOLDING. Notwithstanding any other provision of the Plan, the
Company, a Subsidiary or an Affiliate, as appropriate, shall have the
right to deduct from all Awards cash and/or Stock, valued at Fair Market
Value on the date of payment, in an amount necessary to satisfy all
Federal, state or local taxes as required by law to be withheld with
respect
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to such Awards and, in the case of Awards paid in Stock, the Holder or
other person receiving such Stock may be required to pay to the Company or
a Subsidiary, as appropriate, prior to delivery of such Stock, the amount
of any such taxes which the Company or Subsidiary is required to withhold,
if any, with respect to such Stock. Subject in particular cases to the
disapproval of the Committee, the Company may accept shares of Stock of
equivalent Fair Market Value in payment of such withholding tax
obligations if the Holder of the Award elects to make payment in such
manner.
CLAIM TO AWARDS AND EMPLOYMENT RIGHTS. No employee or other person shall
have any claim or right to be granted an Award under the Plan or, having
been selected for the grant of an Award, to be selected for a grant of any
other Award. Neither the Plan nor any action taken hereunder shall be
construed as giving any Participant any right to be retained in the employ
or service of the Company, a Subsidiary or an Affiliate.
DESIGNATION AND CHANGE OF BENEFICIARY. Each Participant shall file with
the Committee a written designation of one or more persons as the
beneficiary who shall be entitled to receive the amounts payable with
respect to an Award of Performance Share Units, Phantom Stock Units or
Restricted Stock, if any, due under the Plan upon his death. A Participant
may, from time to time, revoke or change his beneficiary designation
without the consent of any prior beneficiary by filing a new designation
with the Committee. The last such designation received by the Committee
shall be controlling; provided, however, that no designation, or change or
revocation thereof, shall be effective unless received by the Committee
prior to the Participant's death, and in no event shall it be effective as
of a date prior to such receipt. If no beneficiary designation is filed by
the Participant, the beneficiary shall be deemed to be his or her spouse
or, if the Participant is unmarried at the time of death, his or her
estate.
PAYMENTS TO PERSONS OTHER THAN PARTICIPANTS. If the Committee shall find
that any person to whom any amount is payable under the Plan is unable to
care for his affairs because of illness or accident, or is a minor, or has
died, then any payment due to such person or his estate (unless a prior
claim therefor has been made by a duly appointed legal representative)
may, if the Committee so directs the Company, be paid to his spouse,
child, relative, an institution maintaining or having custody of such
person, or any other person deemed by the Committee to be a proper
recipient on behalf of such person otherwise entitled to payment. Any such
payment shall be a complete discharge of the liability of the Committee
and the Company therefor.
NO LIABILITY OF COMMITTEE MEMBERS. No member of the Committee shall be
personally liable by reason of any contract or other instrument executed
by such member or on his behalf in his
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capacity as a member of the Committee nor for any mistake of judgment made
in good faith, and the Company shall indemnify and hold harmless each
member of the Committee and each other employee, officer or director of
the Company to whom any duty or power relating to the administration or
interpretation of the Plan may be allocated or delegated, against any cost
or expense (including counsel fees) or liability (including any sum paid
in settlement of a claim) arising out of any act or omission to act in
connection with the Plan unless arising out of such person's own fraud or
willful bad faith; provided, however, that approval of the Board shall be
required for the payment of any amount in settlement of a claim against
any such person. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may
be entitled under the Company's Articles of Incorporation or By-Laws, as a
matter of law, or otherwise, or any power that the Company may have to
indemnify them or hold them harmless.
GOVERNING LAW. The Plan shall be governed by and construed in accordance
with the internal laws of the State of New York without regard to the
principles of conflicts of law thereof.
FUNDING. Except as provided under Section 10, no provision of the Plan
shall require the Company, for the purpose of satisfying any obligations
under the Plan, to purchase assets or place any assets in a trust or other
entity to which contributions are made or otherwise to segregate any
assets, nor shall the Company maintain separate bank accounts, books,
records or other evidence of the existence of a segregated or separately
maintained or administered fund for such purposes. Holders shall have no
rights under the Plan other than as unsecured general creditors of the
Company, except that insofar as they may have become entitled to payment
of additional compensation by performance of services, they shall have the
same rights as other employees under general law.
NONTRANSFERABILITY. A person's rights and interest under the Plan,
including amounts payable, may not be sold, assigned, donated, or
transferred or otherwise disposed of, mortgaged, pledged or encumbered
except, in the event of a Holder's death, to a designated beneficiary to
the extent permitted by the Plan, or in the absence of such designation,
by will or the laws of descent and distribution; provided, however, the
Committee may, in its sole discretion, allow for transfer of Awards other
than Incentive Stock Options to other persons or entities, subject to such
conditions or limitations as it may establish.
RELIANCE ON REPORTS. Each member of the Committee and each member of the
Board shall be fully justified in relying, acting or failing to act, and
shall not be liable for having so relied, acted or failed to act in good
faith, upon any report made by the independent public accountant of the
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Company and its Subsidiaries and Affiliates and upon any other information
furnished in connection with the Plan by any person or persons other than
himself.
RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall be taken
into account in determining any benefits under any pension, retirement,
profit sharing, group insurance or other benefit plan of the Company or
any Subsidiary except as otherwise specifically provided in such other
plan.
EXPENSES. The expenses of administering the Plan shall be borne by the
Company and its Subsidiaries and Affiliates.
PRONOUNS. Masculine pronouns and other words of masculine gender shall
refer to both men and women.
TITLES AND HEADINGS. The titles and headings of the sections in the Plan
are for convenience of reference only, and in the event of any conflict,
the text of the Plan, rather than such titles or headings shall control.
TERMINATION OF EMPLOYMENT. For all purposes herein, a person who transfers
from employment or service with the Company to employment or service with
a Subsidiary or Affiliate or vice versa shall not be deemed to have
terminated employment or service with the Company, a Subsidiary or
Affiliate.
CHANGES IN CAPITAL STRUCTURE
Awards granted under the Plan and any agreements evidencing such
Awards, the maximum number of shares of Stock subject to all Awards and the
maximum number of shares of Stock with respect to which any one person may be
granted Options or SARs during any year shall be subject to adjustment or
substitution, as determined by the Committee in its sole discretion, as to the
number, price or kind of a share of Stock or other consideration subject to
such Awards or as otherwise determined by the Committee to be equitable (i) in
the event of changes in the outstanding Stock or in the capital structure of
the Company by reason of stock dividends, stock splits, reverse stock splits,
recapitalizations, reorganizations, mergers, consolidations, combinations,
exchanges, or other relevant changes in capitalization occurring after the Date
of Grant of any such Award or (ii) in the event of any change in applicable
laws or any change in circumstances which results in or would result in any
substantial dilution or enlargement of the rights granted to, or available for,
Participants in the Plan, or which otherwise warrants equitable adjustment
because it interferes with the intended operation of the Plan. In addition, in
the event of any such adjustments or substitution, the aggregate number of
shares of Stock available under the Plan shall be appropriately adjusted by the
Committee, whose determination shall be conclusive. Any adjustment in Incentive
Stock Options under this Section 14 shall be made only to the extent not
constituting a "modification"
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within the meaning of Section 424(h)(3) of the Code, and any adjustments under
this Section 14 shall be made in a manner which does not adversely affect the
exemption provided pursuant to Rule 16b-3 under the Exchange Act. Further, with
respect to Awards intended to qualify as "performance-based compensation" under
Section 162(m) of the Code, such adjustments or substitutions shall be made
only to the extent that the Committee determines that such adjustments or
substitutions may be made without a loss of deductibility for Awards under
Section 162(m) of the Code. The Company shall give each Participant notice of
an adjustment hereunder and, upon notice, such adjustment shall be conclusive
and binding for all purposes.
Notwithstanding the above, in the event of any of the following:
A. The Company is merged or consolidated with another
corporation or entity and, in connection therewith,
consideration is received by shareholders of the Company in a
form other than stock or other equity interests of the
surviving entity;
B. All or substantially all of the assets of the Company are
acquired by another person;
C. The reorganization or liquidation of the Company; or
D. The Company shall enter into a written agreement to undergo
an event described in clauses A, B or C above,
then the Committee may, in its discretion and upon at least 10 days advance
notice to the affected persons, cancel any outstanding Awards and pay to the
Holders thereof, in cash or stock, or any combination thereof, the value of
such Awards based upon the price per share of Stock received or to be received
by other shareholders of the Company in the event. The terms of this Section 14
may be varied by the Committee in any particular Award agreement.
EFFECT OF CHANGE IN CONTROL
Except to the extent reflected in a particular Award agreement:
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In the event of a Change in Control, notwithstanding any vesting schedule
with respect to an Award of Options (including Director Stock Options),
SARs, Phantom Stock Units or Restricted Stock, such Option or SAR shall
become immediately exercisable with respect to 100 percent of the shares
subject to such Option or SAR, and the Restricted Period shall expire
immediately with respect to 100 percent of such Phantom Stock Units or
shares of Restricted Stock.
In the event of a Change in Control, all incomplete Award Periods in
effect on the date the Change in Control occurs shall end on the date of
such change, and the Committee shall (i) determine the extent to which
Performance Goals with respect to each such Award Period have been met
based upon such audited or unaudited financial information then available
as it deems relevant, (ii) cause to be paid to each Participant partial or
full Awards with respect to Performance Goals for each such Award Period
based upon the Committee's determination of the degree of attainment of
Performance Goals, and (iii) cause all previously deferred Awards to be
settled in full as soon as possible.
In addition, in the event of a Change in Control, the Committee may in its
discretion and upon at least 10 days' advance notice to the affected
persons, cancel any outstanding Awards and pay to the Holders thereof, in
cash or stock, or any combination thereof, the value of such Awards based
upon the price per share of Stock received or to be received by other
shareholders of the Company in the event.
The obligations of the Company under the Plan shall be binding upon any
successor corporation or organization resulting from the merger,
consolidation or other reorganization of the Company, or upon any
successor corporation or organization succeeding to substantially all of
the assets and business of the Company. The Company agrees that it will
make appropriate provisions for the preservation of Participant's rights
under the Plan in any agreement or plan which it may enter into or adopt
to effect any such merger, consolidation, reorganization or transfer of
assets.
NONEXCLUSIVITY OF THE PLAN
Neither the adoption of this Plan by the Board nor the submission of
this Plan to the stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other
incentive arrangements as it may deem desirable, including, without limitation,
the granting of stock options otherwise than under this Plan, and such
arrangements may be either applicable generally or only in specific cases.
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AMENDMENTS AND TERMINATION
The Board may at any time terminate the Plan. Subject to Section 14,
with the express written consent of an individual Participant, the Board or the
Committee may cancel or reduce or otherwise alter outstanding Awards if, in its
judgment, the tax, accounting, or other effects of the Plan or potential
payouts thereunder would not be in the best interest of the Company. The Board
or the Committee may, at any time, or from time to time, amend or suspend and,
if suspended, reinstate, the Plan in whole or in part; provided, however, that
without further stockholder approval neither the Board nor the Committee shall
make any amendment to the Plan which would materially alter the Plan or which
would specifically:
Materially increase the maximum number of shares of Stock which may be
issued pursuant to Awards, except as provided in Section 14;
Change the maximum Option Price;
Extend the maximum Option Period;
Extend the termination date of the Plan; or
Change the class of persons eligible to receive Awards under the Plan;
EFFECT OF SECTION 162(M) OF THE CODE
Generally, in order for Options and SARs to qualify as
"performance-based compensation" (within the meaning of Section 162(m) of the
Code), they must be issued under a plan approved by the shareholders of a
company, granted by a Disinterested Committee and must have a per share
exercise price no less than the Fair Market Value of one share of Stock as of
the date of grant. In addition, the plan must state the maximum number of
shares that may be granted with respect to Options or SARs to any person during
a specified time period.
Because the Company was a subsidiary of BEC, a "publicly held
corporation" (within the meaning of Section 162(m) of the Code), that became
"publicly held" (within the meaning of Section 162(m) of the Code) as a result
of a spinoff, the Plan is exempt from the shareholder approval requirements of
Section 162(m) of the Code for a period of time pursuant to Treasury Regulation
Section 1.167-27(f)(4)(iii). The Company may rely on this exemption only for
Options and SARs granted prior to the first regularly scheduled meeting of the
shareholders of the Company that occurs more than twelve months after the date
that the
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Company so became a publicly held corporation. Thereafter, in order for Options
and SARs to qualify as "performance-based compensation" (within the meaning of
Section 162(m) of the Code) the shareholder approval requirements of Section
162(m) of the Code must be satisfied and the Plan must be approved by a vote of
the shareholders of the Company.
* * *
As adopted by the Board of Directors of
Bolle Inc. as of January , 1998
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RULES OF THE BOLLE INC.
STOCK OPTION PLAN
FOR FRENCH EMPLOYEES
1. INTRODUCTION
Bolle Inc.(the "Company") has established the Bolle Inc. 1998 Stock Incentive
Plan (the "US Plan") for the benefit of certain employees of the Company, its
subsidiaries and affiliates, including its French Subsidiaries, BOLLE S.N.C.
and BOLLE DIFFUSION (the "Subsidiaries") of which the Company holds indirectly
100% of the capital. The Board of Directors of the Company has determined that
it is advisable to establish a sub-plan for the purposes of permitting stock
options granted under the US Plan to qualify for favorable French tax and
social security treatment. The Board of Directors, therefore, intends to
establish a sub-plan of the US Plan for the purpose of granting options which
qualify for the favorable tax and social security treatment in France
applicable to options granted under the Law n(0) 70-1322 of December 31, 1970,
as subsequently amended, to qualifying employees who are resident in France for
French tax purposes. The terms of the US Plan, as set out in Appendix 1 hereto,
shall, subject to the modifications in the following rules, constitute the
Bolle Inc. Stock Option Plan for French Employees (the "French Plan"). Under
the French Plan, the qualifying employees will be granted only stock options.
In no case will they be granted other Awards, as referred to in the US Plan.
2. DEFINITIONS
Terms used in the French Plan shall have the same meanings as set
forth in the US Plan, except as specifically provided herein.
For the purposes of this French Plan, the term "Option" shall have the
following meaning:
Purchase options, that are rights to acquire shares repurchased by the
Company prior to the grant of said options.
3. ENTITLEMENT TO PARTICIPATE
Any Employee of the Subsidiaries shall be eligible to receive Options
under the French Plan. However, options cannot be issued under the French Plan
to employees or executives owning more than ten percent (10%) of the Company's
capital shares or to individuals other than employees and corporate executives
of the Subsidiaries. Options may not be issued to directors of the
Subsidiaries, unless they are employed by the Subsidiaries.
<PAGE>
4. OPTION PRICE
The Option Price per share of common stock payable pursuant to Options
issued hereunder shall be fixed by the Committee on the date the Option is
granted, but in no event shall the Option Price per share be less than the
greater of:
a. with respect to purchase options over the common stock, the
higher of either 95% of the average quotation price of such
common stock during the 20 days of quotation immediately
preceding the grant date or 95% of the average purchase price
paid for such common stock by the Company;
b. the minimum option exercise price permitted under the US
Plan.
5. EXERCISE OF AN OPTION
Upon exercise of an Option, the full Option Price will have to be paid
either by check or credit transfer.
The shares acquired upon exercise of an Option will be recorded in an account
in the name of the shareholder.
6. CHANGES IN CAPITALIZATION
In compliance with French law, neither the Option Price nor the number
of shares subject to an Option issued hereunder, shall be modified during the
Options' duration. Adjustments to the Option Price or number of shares subject
to an Option issued hereunder shall be made to preclude the dilution or
enlargement of benefits under such Option only in the case of one or more of
the following transactions by the Company:
a. an increase of corporate capital by cash contribution;
b. an issuance of convertible or exchangeable bonds;
c. a capitalization of retained earnings, profits, or issuance
premiums;
d. a distribution of retained earnings by payment in cash or shares;
and
e. a reduction of corporate capital by set off against losses.
7. DEATH
In the event of the death of a French Holder, said individual's heirs
may exercise the Option within 6 months following the death, but any vested
Option which remains
-2-
<PAGE>
unexercised shall expire 6 months following the date of the Holder's death.
8. INTERPRETATION
It is intended that Options granted under the French Plan shall
qualify for the favorable tax and social security treatment applicable to stock
options granted under the Law n(0) 70-1322 of December 31, 1970, as
subsequently amended, and in accordance with the relevant provisions set forth
by French tax law and the French tax administration. The terms of the French
Plan shall be interpreted accordingly.
9. AMENDMENTS
Subject to the terms of the US Plan, the Committee reserves the right
to amend or terminate the French Plan at any time.
10. ADOPTION
The French Plan was adopted by a meeting of the Board of Directors of
the Company, held on January __, 1998.
--------------------------
For Bolle Inc.
-3-
<PAGE>
- -------------------------------------------------------------------------------
SECOND
AMENDED AND RESTATED
CREDIT AGREEMENT
Among
BOLLE INC.,
as Borrower
and
NATIONSBANK, NATIONAL ASSOCIATION,
BANKBOSTON, N.A.,,
CREDIT AGRICOLE INDOSUEZ,
EUROPEAN AMERICAN BANK,
IMPERIAL BANK,
NATIONAL CITY BANK OF KENTUCKY
and
THE OTHER FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
as Lenders,
and
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent.
Dated as of March 11, 1998
- -------------------------------------------------------------------------------
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I - DEFINITIONS
<S> <C>
SECTION 1.1 Amendment and Restatement..............................................................2
SECTION 1.2 Definitions............................................................................3
SECTION 1.3 Rules of Interpretation...............................................................34
ARTICLE II - THE TERM LOAN
SECTION 2.1 The Term Loan.........................................................................35
SECTION 2.2 Payment of Principal..................................................................36
SECTION 2.3 Payment of Interest...................................................................36
SECTION 2.4 Manner of Payment.....................................................................37
SECTION 2.5 Optional Prepayments..................................................................38
SECTION 2.6 Mandatory Prepayments.................................................................38
SECTION 2.7 Borrower's Account....................................................................40
SECTION 2.8 Term Notes............................................................................40
SECTION 2.9 Interest Periods......................................................................40
SECTION 2.10 Elections of Subsequent Interest Periods..............................................40
SECTION 2.11 Pro Rata Payments.....................................................................41
SECTION 2.12 Use of Proceeds.......................................................................41
ARTICLE III - REVOLVING LOANS
SECTION 3.1 Revolving Loans.......................................................................41
SECTION 3.2 Advances and Rate Selection...........................................................42
SECTION 3.3 Payment of Interest...................................................................44
SECTION 3.4 Payment of Principal..................................................................45
SECTION 3.5 Manner of Payment.....................................................................46
SECTION 3.6 Commitment Reductions.................................................................46
SECTION 3.7 Increase and Decrease in Amounts......................................................48
SECTION 3.8 Borrower's Account...................................................................48
SECTION 3.9 Notes.................................................................................48
SECTION 3.10 Pro Rata Payments.....................................................................48
SECTION 3.11 Conversions and Elections of Subsequent Interest Periods..............................48
SECTION 3.12 Unused Fee............................................................................49
SECTION 3.13 Additional Fees.......................................................................49
SECTION 3.14 Deficiency Advances...................................................................49
SECTION 3.15 Use of Proceeds.......................................................................50
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ARTICLE IV - LETTERS OF CREDIT
SECTION 4.1 Letters of Credit.....................................................................50
SECTION 4.2 Reimbursement.........................................................................50
SECTION 4.3 Letter of Credit Fee..................................................................54
SECTION 4.4 Administrative Fees...................................................................54
ARTICLE V - CHANGE IN CIRCUMSTANCES
SECTION 5.1 Increased Cost and Reduced Return.....................................................54
SECTION 5.2 Limitation on Types of Loans..........................................................56
SECTION 5.3 Illegality............................................................................56
SECTION 5.4 Treatment of Affected Loans...........................................................56
SECTION 5.5 Compensation..........................................................................57
SECTION 5.6 Taxes.................................................................................57
ARTICLE VI - SECURITY
SECTION 6.1 Security Interest.....................................................................59
SECTION 6.2 Stock Pledge..........................................................................60
SECTION 6.3 Guaranty..............................................................................60
SECTION 6.4 Lease Assignments.....................................................................60
SECTION 6.5 Intellectual Property.................................................................60
SECTION 6.6 Deed of Trust.........................................................................61
SECTION 6.7 Intercompany Note Assignment..........................................................61
SECTION 6.8 Information Regarding Collateral......................................................61
SECTION 6.9 Further Assurances....................................................................62
ARTICLE VII - CONDITIONS PRECEDENT
SECTION 7.1 Effectiveness; Conditions to Advances and Issuance of Letters of
Credit...............................................................................62
SECTION 7.2 Conditions of Permitted Acquisitions and All Advances for Permitted
Acquisitions..........................................................................67
SECTION 7.3 Conditions of All Advances and Issuances of Letters of Credit on or
after the Closing Date................................................................70
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ARTICLE VIII - REPRESENTATIONS AND WARRANTIES
SECTION 8.1 Organization and Authority............................................................71
SECTION 8.2 Loan Documents........................................................................72
SECTION 8.3 Solvency..............................................................................72
SECTION 8.4 Subsidiaries and Stockholders.........................................................72
SECTION 8.5 Ownership Interests...................................................................72
SECTION 8.6 Financial Condition...................................................................73
SECTION 8.7 Title to Properties...................................................................73
SECTION 8.8 Taxes.................................................................................73
SECTION 8.9 Other Agreements......................................................................74
SECTION 8.10 Litigation............................................................................74
SECTION 8.11 Margin Stock..........................................................................74
SECTION 8.12 Investment Company....................................................................74
SECTION 8.13 Intellectual Property.................................................................75
SECTION 8.14 No Untrue Statement...................................................................75
SECTION 8.15 No Consents, Etc......................................................................75
SECTION 8.16 Employee Benefit Plans................................................................75
SECTION 8.17 No Default............................................................................76
SECTION 8.18 Environmental Matters.................................................................76
SECTION 8.19 Employment Matters....................................................................77
SECTION 8.20 Permitted Acquisition.................................................................77
ARTICLE IX - AFFIRMATIVE COVENANTS
SECTION 9.1 Financial Reports, Etc................................................................77
SECTION 9.2 Maintain Properties...................................................................79
SECTION 9.3 Existence, Qualification, Etc.........................................................79
SECTION 9.4 Regulations and Taxes.................................................................79
SECTION 9.5 Insurance.............................................................................79
SECTION 9.6 True Books............................................................................80
SECTION 9.7 Right of Inspection...................................................................80
SECTION 9.8 Observe all Laws......................................................................80
SECTION 9.9 Covenants Extending to Subsidiaries...................................................80
SECTION 9.10 Officer's Knowledge of Default........................................................80
SECTION 9.11 Suits or Other Proceedings............................................................80
SECTION 9.12 Notice of Discharge of Hazardous Material or Environmental
Complaint.............................................................................81
SECTION 9.13 Environmental Compliance..............................................................81
SECTION 9.14 Indemnification.......................................................................81
SECTION 9.15 Further Assurances....................................................................81
SECTION 9.16 Employee Benefit Plans................................................................82
SECTION 9.17 Termination Events....................................................................82
SECTION 9.18 ERISA Notices.........................................................................82
SECTION 9.19 Continued Operations..................................................................82
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Page
SECTION 9.20 Use of Proceeds.......................................................................83
SECTION 9.21 New Subsidiaries......................................................................83
SECTION 9.22 Hedging Obligations...................................................................84
ARTICLE X - NEGATIVE COVENANTS
SECTION 10.1 Indebtedness..........................................................................84
SECTION 10.2 Liens.................................................................................85
SECTION 10.3 Investments; Acquisitions.............................................................87
SECTION 10.4 Merger or Transfer of Assets..........................................................87
SECTION 10.5 Transactions with Affiliates..........................................................88
SECTION 10.6 Compliance with ERISA.................................................................88
SECTION 10.7 Fiscal Year...........................................................................89
SECTION 10.8 Dissolution, etc......................................................................89
SECTION 10.9 Hedging Obligations...................................................................89
SECTION 10.10 Dividends, Redemptions and Other Payments.............................................89
SECTION 10.11 Defaults Under Other Agreements.......................................................90
SECTION 10.12 Compensation; Reimbursement of Expenses...............................................90
SECTION 10.13 Change in Accountants.................................................................90
SECTION 10.14 Limitations on Sales and Leasebacks...................................................90
SECTION 10.15 Negative Pledge Clauses...............................................................91
SECTION 10.16 Change of Control.....................................................................91
SECTION 10.17 Intellectual Property.................................................................91
SECTION 10.18 Preferred Stock; Management Services Agreement; Share Purchase
Agreements............................................................................91
SECTION 10.19 Licenses..............................................................................91
ARTICLE XI - FINANCIAL COVENANTS
SECTION 11.1 Consolidated Fixed Charge Ratio.......................................................92
SECTION 11.2 Consolidated Leverage Ratio...........................................................92
SECTION 11.3 Consolidated Net Worth................................................................92
SECTION 11.4 Capital Expenditures..................................................................92
ARTICLE XII - EVENTS OF DEFAULT
SECTION 12.1 Events of Default.....................................................................93
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SECTION 12.2 Agent to Act..........................................................................96
SECTION 12.3 Cumulative Rights.....................................................................96
SECTION 12.4 No Waiver.............................................................................96
SECTION 12.5 Allocation of Proceeds................................................................96
ARTICLE XIII - THE AGENT
SECTION 13.1 Appointment, Powers, and Immunities...................................................97
SECTION 13.2 Reliance by Agent.....................................................................98
SECTION 13.3 Defaults..............................................................................98
SECTION 13.4 Rights as Lender......................................................................99
SECTION 13.5 Indemnification.......................................................................99
SECTION 13.6 Non-Reliance on Agent and Other Lenders...............................................99
SECTION 13.7 Resignation of Agent.................................................................100
SECTION 13.8 Sharing of Payments, etc.............................................................100
SECTION 13.9 Fees.................................................................................100
ARTICLE XIV - ASSIGNMENTS AND PARTICIPATIONS
SECTION 14.1 Assignments and Participations. ....................................................101
ARTICLE XV - GENERAL PROVISIONS
SECTION 15.1 Notices..............................................................................102
SECTION 15.2 Setoff...............................................................................104
SECTION 15.3 Survival.............................................................................104
SECTION 15.4 Expenses.............................................................................104
SECTION 15.5 Amendments...........................................................................105
SECTION 15.6 Counterparts.........................................................................105
SECTION 15.7 Termination..........................................................................105
SECTION 15.8 Indemnification......................................................................106
SECTION 15.9 Headings and References..............................................................107
SECTION 15.10 Severability.........................................................................107
SECTION 15.11 Entire Agreement.....................................................................107
SECTION 15.12 Agreement Controls...................................................................107
SECTION 15.13 Usury Savings Clause.................................................................107
SECTION 15.14 Governing Law; Waivers...............................................................107
SECTION 15.15 Judgment Currency....................................................................109
SECTION 15.16 Economic and Monetary Union in the European Community................................109
EXHIBIT A Applicable Commitment Percentages....................................................................A-1
EXHIBIT B Form of Assignment and Acceptance....................................................................B-1
EXHIBIT C Form of Notice of Appointment (or Revocation) of Authorized
Representative...........................................................................C-1
EXHIBIT D Form of Borrowing Notice.............................................................................D-1
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EXHIBIT E Form of Guaranty Agreement...........................................................................E-1
EXHIBIT F Form of Interest Rate Selection Notice...............................................................F-1
EXHIBIT G Form of Stock Pledge Agreement.......................................................................G-1
EXHIBIT H Form of Mortgage.....................................................................................H-1
EXHIBIT I Form of Term Note..................................................................................I-1-1
EXHIBIT J Form of Revolving Note...............................................................................J-1
EXHIBIT K-1 Form of LC Account Agreement.....................................................................K-1-1
EXHIBIT K-2 Form of Cash Collateral Account..................................................................K-2-1
EXHIBIT L Form of Security Agreement...........................................................................L-1
EXHIBIT M Form of Intellectual Property Security Agreement.....................................................M-1
EXHIBIT N Forms of Opinions of Counsel to the Borrower and the Guarantors......................................N-1
EXHIBIT O Form of Compliance Certificate.......................................................................O-1
EXHIBIT P Form of Landlord Waiver..............................................................................P-1
EXHIBIT Q Form of Lease Assignment.............................................................................Q-1
EXHIBIT R Form of Collateral Assignment of License Agreement...................................................Q-2
EXHIBIT S Form of Intercompany Notes Assignment................................................................S-1
EXHIBIT T Form of Intercompany Note............................................................................T-1
EXHIBIT U Form of Subordination Agreement......................................................................U-1
Schedule 1 Material Leased Facilities.................................................................Schedule 1-1
Schedule 1.1 Existing Indebtedness..................................................................Schedule 1.1-1
Schedule 2 Existing Letters of Credit.................................................................Schedule 2-1
Schedule 6.8 Locations of Borrower and Guarantors...................................................Schedule 6.8-1
Schedule 7.1(c) Material Adverse Effect.........................................................Schedule 7.1(c)-1
Schedule 8.4 Subsidiaries...........................................................................Schedule 8.4-1
Schedule 8.5 Ownership Interests....................................................................Schedule 8.5-1
Schedule 8.6 Contingent Liabilities.................................................................Schedule 8.6-1
Schedule 8.7 Liens..................................................................................Schedule 8.7-1
Schedule 8.10 Litigation...........................................................................Schedule 8.10-1
Schedule 8.13 Intellectual Property................................................................Schedule 8.13-1
Schedule 8.16 Employee Benefit Plans...............................................................Schedule 8.16-1
Schedule 8.18 Environmental Matters................................................................Schedule 8.18-1
Schedule 8.19 Employment Matters...................................................................Schedule 8.19-1
Schedule 9.5 Insurance..............................................................................Schedule 9.5-1
Schedule 10.1 Existing Indebtedness................................................................Schedule 10.1-1
Schedule 10.4 Mergers and Consolidations...........................................................Schedule 10.4-1
Schedule 10.5 Transactions With Affiliates.........................................................Schedule 10.5-1
Schedule 10.19 Licenses...........................................................................Schedule 10.19-1
</TABLE>
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<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement")
made as of this 11th day of March, 1998 by and among BOLLE INC., a Delaware
corporation having its chief executive office in Rye, New York (the
"Borrower"), EACH LENDER EXECUTING AND DELIVERING A SIGNATURE PAGE HERETO and
each other lender which may hereafter execute and deliver an instrument of
assignment and assumption with respect to this Agreement pursuant to Section
14.1 hereof (hereinafter such lenders may be referred to individually as a
"Lender" or collectively as the "Lenders") and NATIONSBANK, NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States of America ("NationsBank"), in its capacity as agent
for the Lenders (in such capacity, and any successor appointed in accordance
with the terms of Section 13.7 hereof, the "Agent").
W I T N E S S E T H:
WHEREAS, the Lenders, certain other lenders, the Agent and BEC Group,
Inc. ("BEC"), of which the Borrower formerly was a direct subsidiary, are
parties to that certain Amended and Restated Credit Agreement dated as of July
10, 1997 (the "Existing Credit Agreement"), as amended pursuant to that certain
Assignment Agreement and First Amendment to Amended and Restated Credit
Agreement of even date herewith, and effective immediately prior to the
effectiveness of this Agreement, among all parties to the Existing Credit
Agreement (the "Assignment and Amendment"), and certain other Loan Documents,
as defined in the Existing Credit Agreement, between the Borrower, certain
other subsidiaries of BEC and the Agent; and
WHEREAS, pursuant to the Assignment and Amendment Agreement, BEC
assigned to the Borrower, and the Borrower assumed from BEC, among other
liabilities, certain indebtedness owing by, and obligations of, BEC under the
Existing Credit Agreement such that the Borrower became a co-borrower together
with BEC under the Existing Credit Agreement; and
WHEREAS, pursuant to the Assignment and Amendment, the Lenders
hereunder (the "Bolle Lenders") have purchased from certain other lenders party
to the Existing Credit Agreement (the "BEC Lenders") a portion of the rights
and interests of the BEC Lenders with respect to the obligations and
indebtedness of the Borrower under the Existing Credit Agreement as a result
of, and after giving effect to, the Assignment and Amendment (the "Bolle
Obligations"); and
WHEREAS, the Borrower, the Lenders and the Agent desire to enter into
this Agreement in order to amend and restate that portion of the Existing
Credit Agreement which in any manner governs or evidences the Bolle Obligations
and the rights and interests of the Bolle Lenders into a separate and
independent agreement among the Agent, the Bolle Lenders and the Borrower and
in connection therewith make available to the Borrower credit facilities in the
maximum aggregate principal amount at any time outstanding of $28,000,000,
which shall include a Term Loan Facility in the principal French Franc
Equivalent Amount of $10,000,000 and a Revolving Credit Facility in the maximum
aggregate principal amount at any time outstanding of $18,000,000, including a
letter of credit subfacility of up to $5,000,000; and
NB BOLLE CREDIT AGREEMENT (FINAL)
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<PAGE>
WHEREAS, the Lenders are willing to make all such facilities available
to the Borrower and amend and restate the portion of the Existing Credit
Agreement governing or evidencing the Bolle Obligations in the manner described
above upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the terms, covenants, provisions
and conditions hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 AMENDMENT AND RESTATEMENT. The Borrower, the Agent and the
Lenders hereby agree that upon the effectiveness of this Agreement, the terms
and provisions of the Existing Credit Agreement which in any manner govern or
evidence the Bolle Obligations, the rights and interests of the Bolle Lenders
and any terms, conditions or matters related to any thereof, but excluding
specifically those terms and conditions applicable to BEC and any lender
remaining party to the Existing Credit Agreement (the "Bolle Terms and
Provisions of the Existing Credit Agreement"), shall be and hereby are amended
and restated in their entirety by the terms and provisions of this Agreement
and the Bolle Terms and Provisions of the Existing Credit Agreement shall be
superseded by this Agreement, except as expressly provided herein.
Notwithstanding the amendment and restatement of the Bolle Terms and Provisions
of the Existing Credit Agreement by this Agreement, all of the indebtedness,
liabilities and obligations owing by the Borrower under the Existing Credit
Agreement, as amended by and giving effect to the Assignment and Amendment
(hereinafter in this Agreement all references to the Existing Credit Agreement
shall mean the Existing Credit Agreement as amended by the Assignment and
Amendment), and after giving effect to the Assignment and Amendment, shall
continue to be secured as referred to in Section 4(b) of the Assignment and
Amendment and Borrower acknowledges and agrees that the assets of itself and of
Bolle America, after giving effect to the assignment to the Borrower of certain
assets of BEC pursuant to the Bill of Sale which constitute "Collateral" as
defined in the Existing Credit Agreement remain subject to a security interest
in favor of the Agent for the ratable benefit of the Lenders and to secure the
liabilities of the Borrower re-evidenced by this Agreement and the other Loan
Documents. This Agreement is given as a substitution of, and not as a payment
of, the obligations of the Borrower under the Existing Credit Agreement and is
not intended to constitute a novation of the Existing Credit Agreement. Upon
the effectiveness of this Agreement, all amounts owing by the Borrower and
outstanding under the Existing Credit Agreement after giving effect to the
Assignment and Amendment shall constitute Advances under the Revolving Credit
Facility hereunder, in each case accruing interest (a) with respect to
Eurodollar Loans under the Existing Credit Agreement, at the Eurodollar Rate
hereunder and (b) with respect to Base Rate Loans under the Existing Credit
Agreement, at the Base Rate hereunder. The parties hereto agree that all
Eurodollar Rate Loans owing by the Borrower and outstanding under the Existing
Credit Agreement on the Closing Date after giving effect to the Assignment and
Amendment shall continue as Eurodollar Rate Loans hereunder. The parties hereto
further agree that all Letters of Credit issued under the Existing
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Credit Agreement, as described on Schedule 2 hereto, and outstanding on the
Closing Date for which the Borrower has incurred a reimbursement obligation
under the Existing Credit Agreement as a result of its assumption of certain
liabilities and obligations pursuant to the Assignment and Amendment shall
continue as Letters of Credit hereunder and shall constitute Letters of Credit
Outstandings hereunder.
SECTION 1.2 DEFINITIONS. For the purposes of this Agreement, in
addition to the definitions set forth above, the following terms shall have the
respective meanings set forth below:
"AAi Preferred Stock" means 100 shares of Series A Redeemable
Non-Voting Preferred Stock, par value $1.00 per share, of Foster Grant
Holdings, Inc. owned by the Borrower and any shares of capital stock
into which such stock may be converted or exchanged, including without
limitation shares of common stock of Accessories Associates;
"AAi Payment" means the cash payment or payments by the
Borrower of up to $2,500,000 to BEC in connection with the Bill of
Sale;
"AAi Prepayment" has the meaning given to such term in
Section 2.6(e) hereof;
"Accessories Associates" means Accessories Associates, Inc.,
a Rhode Island corporation;
"Accessories Associates IPO" means an initial public offering
of the common stock of Accessories Associates;
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an
option, warrant or convertible or similar type security to acquire
such a controlling interest at the time it becomes exercisable by the
holder thereof), whether by purchase of such equity interest or upon
exercise of an option or warrant for, or conversion of securities
into, such equity interest, or (ii) in a single or series of related
transactions, all or a portion of the assets of another Person
constituting a line or lines of business of such Person;
"Acquisition Date" has the meaning given to such term in
Section 7.2 hereof;
"Acquisition Consideration" has the meaning given to such
term in Section 7.2(b)(ii) hereof;
"Advance" means (a) the advance of the Term Loan and (b) any
borrowing under the Revolving Credit Facility consisting of a Base
Rate Loan or a Eurodollar Rate Loan, as the case may be;
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or
is under common control with, the
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Borrower; (ii) which beneficially owns or holds 10% or more of any
class of the outstanding voting stock of the Borrower; or (iii) 10% or
more of any class of the outstanding voting stock (or in the case of a
Person which is not a corporation, 10% or more of the equity interest)
of which is beneficially owned or held by the Borrower. The term
"control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of
such Person, whether through ownership of voting stock, by contract or
otherwise;
"Applicable Commitment Percentage" means, at any time for
each Lender with respect to the Total Credit Commitment (including its
Participations and its obligations hereunder to Issuing Bank to
acquire Participations), a fraction (expressed as a percentage), (A)
the numerator of which shall be the sum of such Lender's Revolving
Credit Commitment and Term Loan Commitment at such date of
determination (which as of the Closing Date are set forth on Exhibit A
attached hereto and incorporated herein by reference), and (B) the
denominator of which shall be the Total Credit Commitment at such date
of determination; provided that the Applicable Commitment Percentage
of each Lender shall be increased or decreased to reflect any
assignments to or by such Lender effected in accordance with Section
14.1 hereof;
"Applicable Currency" means, as to any particular Loan,
Dollars or French Francs, as designated (in the case of Loans and
Advances) in the Borrowing Notice applicable to such Loan;
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained;
"Applicable Margin" and "Applicable Unused Fee" means that
percent per annum set forth in the table below, which shall be (A)
determined as of each Determination Date based upon the computations
set forth in the compliance certificates delivered to the Agent
pursuant to Sections 9.1(a)(ii) and 9.1(b)(ii) hereof, subject to
review and approval of such computations by the Agent, and delivered
to the Agent not later than the time set forth in Sections 9.1(a) and
9.1(b) hereof (the "Compliance Date") and (B) applicable to all Fixed
Rate Loans made, renewed or converted, Letters of Credit outstanding
and any Unused Fee due and payable, on or after the most recent
Compliance Date to occur based upon the Consolidated Leverage Ratio
for the Four-Quarter Period then ended, as specified below:
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<TABLE>
<CAPTION>
Applicable Margin for
Fixed Rate Loans and Applicable Margin Applicable
Consolidated for Letter of Credit for Base Unused
Leverage Ratio Fees Rate Loans Fee
<S> <C> <C> <C>
Greater than 3.00 to 1.00 2.50% 1.00% .500%
Less than or equal to 3.00 to
1.00 but greater than 2.50 to
1.00 2.00% .500% .375%
Less than or equal to 2.50 to
1.00 but greater than 2.00 to
1.00 1.25% 0% .250%
Less than or equal to 2.00 to 1.00% 0% .250%
1.00
</TABLE>
; provided, however, the Applicable Margin for Eurodollar Loans and
Letter of Credit Fees shall be 2.50% and the Applicable Unused Fee
shall be 0.500% from the Closing Date to the Compliance Date
immediately following June 30, 1998;
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit
executed by the Borrower from time to time and delivered to Issuing
Bank to support the issuance of Letters of Credit;
"Asset Disposition" means any voluntary disposition, whether
by sale, lease or transfer, other than as permitted under Section 10.4
hereof, of (a) any or all of the assets, excluding cash and cash
equivalents, of the Borrower or its Subsidiaries, and (b) any of the
capital stock, or securities or investments exchangeable, exercisable
or convertible for or into, or otherwise entitling the holder to
receive, any of the capital stock of any Subsidiary (other than a
disposition to a Guarantor;
"Assignment and Amendment" has the meaning given to such term
in the recitals hereto;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B attached hereto and incorporated
herein by reference (with blanks appropriately filled in) delivered to
the Agent in connection with an assignment of a Lender's interest
under this Agreement pursuant to Section 14.1;
"A$" mean dollars constituting legal tender for the payment
of public and private debts in Australia;
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"Authorized Representative" means any of the Chairman,
President, Executive Vice Presidents, Senior Vice Presidents or Vice
Presidents of the Borrower and, with respect to financial matters, the
Chief Financial Officer, Vice President-Finance or Controller of the
Borrower or any other person expressly designated by the Board of
Directors of the Borrower (or the appropriate committee thereof) as an
Authorized Representative of the Borrower, as set forth from time to
time in a certificate in the form attached hereto as Exhibit C and
incorporated herein by reference;
"Base Rate" means the per annum rate of interest equal to the
sum of (a) the greater of (i) the Prime Rate or (ii) the Federal Funds
Rate plus one-half of one percent (0.5%) plus (b) the Applicable
Margin. Any change in the Base Rate due to a change in the Prime Rate
or the Federal Funds Rate shall be effective on the effective date of
such change in the Prime Rate or Federal Funds Rate;
"Base Rate Loan" means any Revolving Loan for which the rate
of interest is determined by reference to the Base Rate;
"BEC" means BEC Group, Inc., a Delaware corporation, and
after the date of effectiveness of the amendment to its Certificate of
Incorporation changing the name of the corporation, Lumen
Technologies, Inc., a Delaware corporation;
"Bill Bass" means Bill Bass Optical Pty. Ltd.;
"Bill of Sale" means that certain Bill of Sale and Assignment
Agreement between the Borrower and BEC dated as of March 11, 1998,
substantially in the form attached to the Merger Agreement pursuant to
which certain assets and liabilities of BEC were assigned and sold to
the Borrower;
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Bolle America" means Bolle America, Inc., a Delaware
corporation;
"Bolle Asia" means Bolle Asia Ltd.;
"Bolle Australia Acquisition" means the acquisition by the
Borrower or a wholly owned Subsidiary of at least seventy-five percent
(75%) of the issued and outstanding shares of Bill Bass, all of the
issued and outstanding shares of Parkhurst and Bolle Asia and the
remaining unowned issued and outstanding shares of Bolle Sunglasses
pursuant to the Bolle Australia Share Purchase Agreement for an
aggregate purchase price not to exceed A$5,687,500.00 in cash and
shares of Common Stock having an aggregate market value of
approximately A$3,500,000.00;
"Bolle Australia Share Purchase Agreement" means that certain
Share Purchase Agreement intended to be entered into on or before June
30, 1998 between the Borrower
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and certain individual shareholders of Bolle Australia, as amended
from time to time, but at all times in form and substance reasonably
acceptable to the Agent and the Lenders;
"Bolle France" means Holding B.F., a corporation governed by
the laws of France;
"Bolle SAS" means Etablissements Bolle, a company governed by
the law of France;
"Bolle Sunglasses" means Bolle Sunglasses Ltd. (UK), a
limited liability company governed by the laws of England.
"Bolle UK" means Bolle UK Limited, a limited liability
company governed by the laws of England;
"Bolle UK Acquisition" means the acquisition by Bolle or a
wholly owned Subsidiary of all of the issued and outstanding capital
shares of Bolle UK pursuant to the Bolle UK Share Purchase Agreement
for an aggregate purchase price not to exceed (pound)1,000,000.00 in
cash and $125,000 in average closing price (as determined in the Bolle
UK Share Purchase Agreement) of shares of Common Stock each year for
three years starting on the effective date of the Bolle UK
Acquisition;
"Bolle UK Share Purchase Agreement" means that certain Share
Purchase Agreement intended to be entered into on or before June 30,
1998 between the Borrower and certain individual shareholders of Bolle
UK, as amended from time to time, but at all times in form and
substance reasonably acceptable to the Agent and the Lenders;
"Bolle Warrants" means those warrants to purchase shares of
capital stock of the Borrower granted in exchange for the surrender of
certain existing warrants to purchase shares of BEC capital stock,
each in the form filed as an exhibit to the Borrower's registration
statement on Form S-1, registration number 333-40279;
"Borrower's Account" means demand deposit account number
[__________] with the Agent, or any successor account with the Agent,
which may be maintained at one or more offices of the Agent or an
agent of the Agent;
"Borrowing Notice" means the notice delivered by an
Authorized Representative in connection with the Advance of the Term
Loan or an Advance under the Revolving Credit Facility, in the form
attached hereto as Exhibit D and incorporated herein by reference;
"Business Day" means, (i) with respect to any Base Rate Loan,
any day which is not a Saturday, Sunday or a day on which banks in the
State of New York or State of North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed,
(ii) with respect to any Eurodollar Rate Loan, any day which is a
Business Day, as described in clause (i) above, and on which the
relevant international
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financial markets are open for the transaction of business
contemplated by this Agreement in London, England, New York, New York
and Charlotte, North Carolina and (iii) with respect to any FF LIBOR
Rate Loan, any day which is a Business Day, as described in clause (i)
above, and on which the relevant international finance markets are
open for the transaction of business contemplated by this Agreement in
Paris, France, New York, New York and Charlotte, North Carolina;
"Capital Expenditures" means, with respect to the Borrower
and its Subsidiaries, for any period the sum of (without duplication)
(i) all expenditures (whether paid in cash or accrued as liabilities)
by the Borrower or any Subsidiary during such period for items that
would be classified as "property, plant or equipment" or comparable
items on the consolidated balance sheet of the Borrower and its
Subsidiaries, including without limitation all transactional costs
incurred in connection with such expenditures provided the same have
been capitalized, excluding, however, the amount of any Capital
Expenditures paid for with proceeds of casualty insurance as permitted
under the Loan Documents as evidenced in writing and submitted to the
Agent together with any compliance certificate delivered pursuant to
Section 9.1(a) or (b) hereof, and (ii) with respect to any Capital
Lease entered into by the Borrower or its Subsidiaries during such
period, the present value of the lease payments due under such Capital
Lease over the term of such Capital Lease applying a discount rate
equal to the interest rate provided in such lease (or in the absence
of a stated interest rate, that rate used in the preparation of the
financial statements described in Section 9.1(a) hereof), all the
foregoing in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
"Capital Leases" means all leases which have been or should
be capitalized in accordance with GAAP, including Statement No. 13 of
the Financial Accounting Standards Board and any successor thereof,
applied on a Consistent Basis;
"Cash Collateral Account Agreement" means a Cash Collateral
Account Agreement in the form of Exhibit K-2 between the Borrower and
the Agent;
"Certificate of Designation" means either or both of the
Series A Certificate of Designation and the Series B Certificate of
Designation;
"Change in Consolidated Working Capital" means, with respect
to any determination thereof as at the end of any Fiscal Year of the
Borrower, the result obtained, expressed as a positive or negative
number as appropriate, by subtracting from Consolidated Working
Capital as at such date the amount of Consolidated Working Capital as
at the end of the immediately preceding Fiscal Year of the Borrower;
"Change of Control" shall have the meaning given to such term
in Section 10.16 hereof;
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"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 7.1 hereof have been satisfied or
waived;
"Code" means the Internal Revenue Code of 1986, as amended,
any successor provision or provisions and any regulations promulgated
thereunder;
"Collateral" means the collateral described in the Security
Instruments;
"Collateral Assignment of Option Agreement" means that
certain Collateral Assignment dated as of the Closing Date by the
Borrower in favor of the Agent and acknowledged and consented to by
The Lantis Corporation, pursuant to which the Borrower has
collaterally assigned all of its rights and interests under the Option
Agreement to the Agent for the benefit of the Lenders;
"Commercial Letter of Credit" means an irrevocable
documentary letter of credit issued hereunder for the account of the
Borrower; provided that the expiry date of a Commercial Letter of
Credit shall not be later than six (6) months subsequent to the date
of issuance thereof;
"Common Stock" means the common stock, par value $.01 per
share, of the Borrower;
"Compliance Date" has the meaning assigned to such term in
the definition of "Applicable Margin" in this Section 1.1;
"Consistent Basis" in reference to the application of
Generally Accepted Accounting Principles means the accounting
principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited
financial statements of the Borrower referred to in Section 8.6(a)
hereof;
"Consolidated Current Assets" means cash and all other assets
of the Borrower and its Subsidiaries which would be classified as a
current asset as determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis;
"Consolidated Current Liabilities" means all liabilities of
the Borrower and its Subsidiaries which would be classified as a
current liability as determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis.
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any period of computation thereof, the sum of,
without duplication, (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) taxes on income, (iv) amortization, and (v)
depreciation less the amount of any change during the immediately
preceding Fiscal Year resulting from the evaluation as required by
GAAP of the Borrower's investment in Eyecare Products and less up to
$3,750,000 in charges related to the change
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from purchase accounting of certain items previously included in the
financial statements of the Borrower under accrued liabilities and
long term liabilities, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis;
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrower and its Subsidiaries for the period of computation thereof,
the ratio of (i) Consolidated EBITDA for such period less Capital
Expenditures for such period to (ii) Consolidated Fixed Charges for
such period; provided, however that for each of the first five fiscal
quarters ending after the date on which any Permitted Acquisition is
effective, the Consolidated Fixed Charge Ratio shall be calculated
through the end of and including such fiscal quarter on a pro forma
basis giving effect to such Permitted Acquisition for the entire
Four-Quarter Period being computed.
"Consolidated Fixed Charges" means, with respect to Borrower
and its Subsidiaries for any period of computation thereof, the sum
of, without duplication, (i) Consolidated Interest Expense, less
interest expense incurred with respect to the Subordinated Debt but
not payable in cash, during such period, (ii) the principal amount of
Consolidated Funded Indebtedness due and payable during such period,
(iii) all cash dividends and other cash distributions (other than
distributions in the form of any stock (including without limitation
capital stock of the Borrower), security, note or other instrument)
paid during such period (regardless of when declared) on any shares of
capital stock of the Borrower then outstanding, including without
limitation its Common Stock and (iv) all payments under Capital Leases
made during such period, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis;
"Consolidated Funded Indebtedness" means, with respect to the
Borrower and its Subsidiaries, at any time as of which the amount
thereof is to be determined, the sum of (i) Indebtedness for Money
Borrowed of the Borrower and its Subsidiaries at such time and (ii)
the face amount of all outstanding letters of credit issued for the
account of the Borrower or any of its Subsidiaries and all obligations
(to the extent not duplicative) arising under such letters of credit,
all determined on a consolidated basis in accordance with GAAP applied
on a Consistent Basis;
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including, without limitation, fees payable in respect of a Swap
Agreement) payable in connection with the incurrence of Indebtedness
to the extent included in gross interest expense and (iii) the portion
of any payments made in connection with Capital Leases allocable to
interest expense, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis;
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Funded Indebtedness
(as determined as at such date) minus the
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FG Mortgage Debt (as determined at such date) to (ii) Consolidated
EBITDA (for the Four-Quarter Period ending on (or most recently prior
to) such date); provided, however that for each of the first five
fiscal quarters ending after the date on which any Permitted
Acquisition is effective, the Consolidated Leverage Ratio shall be
calculated through the end of and including such fiscal quarter on a
pro forma basis giving effect to such Permitted Acquisition for the
entire Four-Quarter Period being computed.
"Consolidated Net Income" means, for any period of
computation thereof, the gross revenues from operations of the
Borrower and its Subsidiaries (including payments received by the
Borrower and its Subsidiaries of (i) interest income, and (ii)
dividends and distributions made in the ordinary course of their
businesses by Persons in which investment is permitted pursuant to
this Agreement and not related to an extraordinary event) less all
operating and non-operating expenses (not related to extraordinary
events) of the Borrower and its Subsidiaries including taxes on
income, all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis; but (A) excluding (for all purposes
other than (x) compliance with Section 11.3 hereof and (y) the
computation of Consolidated EBITDA utilized to determine Excess Cash
Flow) in such calculation (1) the amount of any material net gains on
the sale, conversion or other disposition of capital assets (other
than the common stock of Eyecare Products), (2) the amount of any
material net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or
its Subsidiaries, (3) the amount of any material net gains on the
collection of proceeds of life insurance policies, (4) any write-up of
any asset, and (5) any other net gain of an extraordinary nature and
(B) excluding (for all purposes other than compliance with Section
11.3 hereof) all proceeds of the sale of the AAi Preferred Stock, all
as determined in accordance with GAAP applied on a Consistent Basis;
"Consolidated Net Worth" means at any time as of which the
amount thereof is to be determined, the sum of the following in
respect of the Borrower and its Subsidiaries (determined on a
consolidated basis and excluding intercompany items among the Borrower
and its Subsidiaries and any upward adjustment after the Closing Date
due to revaluation of assets): (i) the amount of issued and
outstanding share capital, plus (ii) the amount of additional paid-in
capital and retained income (or, in the case of a deficit, minus the
amount of such deficit), plus (iii) the amount of any foreign currency
translation adjustment (if positive, or, if negative, minus the amount
of such translation adjustment) minus (iv) the amount of any treasury
stock, all as determined in accordance with GAAP applied on a
Consistent Basis;
"Consolidated Pretax Income" means, for any period of
computation thereof, Consolidated Net Income plus all taxes on income
of the Borrower and its domestic Subsidiaries, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis;
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"Consolidated Total Assets" means, as at any time of
calculation thereof, the net book value of all assets of the Borrower
and its domestic Subsidiaries as determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis;
"Consolidated Working Capital" means, as of any date on which
the amount thereof is to be determined, the excess of Consolidated
Current Assets over Consolidated Current Liabilities.
"Contingent Obligation" of any Person means all contingent
liabilities (other than obligations of the Borrower and its
Subsidiaries with respect to the fulfillment of purchase orders issued
in the ordinary course of business) required (or which, upon the
creation or incurring thereof, would be required) to be included in
the consolidated financial statements (including footnotes) of such
Person in accordance with GAAP applied on a Consistent Basis,
including Statement No. 5 of the Financial Accounting Standards Board,
and except with respect to the calculation of Contingent Obligations
as required under the definition of "Solvent," any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness,
dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including
obligations of such Person however incurred:
(i) to purchase such Indebtedness or other
obligation or any property or assets constituting security
therefor;
(ii) to advance or supply funds in any manner (A)
for the purchase or payment of such Indebtedness or other
obligation, or (B) to maintain a minimum working capital, net
worth or other balance sheet condition or any income
statement condition of the primary obligor;
(iii) to grant or convey any Lien, security
interest, pledge, charge or other encumbrance on any property
or assets of such Person to secure payment of such
Indebtedness or other obligation;
(iv) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(v) otherwise to assure the owner of the
Indebtedness or such obligation of the primary obligor
against loss in respect thereof.
; provided, however, "Contingent Obligation" shall not include any
obligation which is required to be disclosed as a liability in the
financial statements (or footnotes thereto) of the Borrower pursuant
to Statements Nos. 123 or 107 of the Financial Accounting Standards
Board. With respect to Contingent Obligations, such liabilities shall
be computed at the amount which, in light of all the facts and
circumstances existing at the
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time, represent the present value of the amount which can
reasonably be expected to become an actual or matured liability;
"Continue", "Continuation", and "Continued" shall refer to
the continuation pursuant to Sections 2.11 or 3.11 hereof of a Fixed
Rate Loan of one Type as a Fixed Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Control Subsidiary" means any entity not constituting a
Subsidiary hereunder but which would otherwise be included as a
subsidiary of the Borrower for consolidated financial reporting
purposes in accordance with GAAP;
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 2.11 or 3.11 or Article V of one Type
of Loan into another Type of Loan.
"Core Business" means, with respect to the Borrower and its
Subsidiaries, the business of manufacturing, subcontracting, selling,
distributing and marketing active lifestyle products, including
sunglasses, sport related eyewear, military and industrial protective
eyewear and nonprescription eyeglasses (including frames, accessories
and other parts thereof);
"Deed of Trust" means, collectively (or individually as the
context may indicate), each deed of trust or mortgage or similar
agreement executed by the Borrower or any Subsidiary (whether of even
date herewith or delivered after the Closing Date pursuant to Article
VI or Section 9.21 hereof) in favor of the Agent in the form of
Exhibit H attached hereto and incorporated herein by reference, each
as from time to time amended, supplemented or replaced;
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder;
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to each FF LIBOR
Rate Loan, a rate of two percent (2%) above the FF LIBOR Rate
applicable to such Loan, (iii) with respect to Base Rate Loans, at a
rate of interest per annum which shall be two percent (2%) above the
Base Rate, and (iv) in any case, the maximum rate permitted by law, if
lower;
"Determination Date" means the last day of each fiscal
quarter of the Borrower;
"Direct Foreign Control Subsidiary" means any direct Foreign Control
Subsidiary of the Borrower or a Domestic Subsidiary;
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"Direct Foreign Subsidiary" means any direct Foreign
Subsidiary of the Borrower or a Domestic Subsidiary;
"Disbursing Bank" means any banking institution approved by
the Agent located within France;
"Dollar Equivalent Amount" means, on any date, the amount of
Dollars into which a French Franc amount would be converted based on
the Spot Rate of Exchange on such date;
"Dollar Loan" means any Revolving Loan denominated in Dollars;
"Dollar Value" means (a) with respect to any Dollar Loan, the
Dollar amount of such Loan, (b) with respect to any FF Revolving Loan
and the Term Loan, the Dollar Equivalent Amount of such Loan, and (c)
with respect to any Letter of Credit, the Dollar amount of all Letter
of Credit Outstandings attributable to such Letter of Credit, all as
recorded in the Agent's records pursuant to Section 2.2(b)(iv) and
3.1(b) hereof;
"Dollars" and the symbol "$" mean dollars constituting legal
tender for the payment of public and private debts in the United
States;
"Domestic Control Subsidiary" means any Control Subsidiary
which is organized under the laws of one of the states comprising the
United States of America, any territory thereof or the District of
Columbia;
"Domestic Subsidiary" means any Subsidiary that is organized
under the laws of one of the states comprising the United States of
America, any territory thereof or the District of Columbia;
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of
a Lender; and (iii) any other Person approved by the Agent and, unless
an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 12.1 hereof, the
Borrower, such approval not to be unreasonably withheld or delayed by
the Borrower and such approval to be deemed given by the Borrower
within five Business Days after written notice of such proposed
assignment has been provided by the assigning Lender to the Borrower;
provided, however, that (a) if such Person is a foreign entity, it
must have a zero rate of withholding and (b) neither the Borrower nor
an affiliate of the Borrower shall qualify as an Eligible Assignee;
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(i) Government Securities;
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(ii) obligations of any corporation organized under
the laws of any state of the United States or under the laws
of any other nation, payable in the United States, expressed
to mature not later than 90 days following the date of
issuance thereof and rated in an investment grade rating
category by S&P and Moody's;
(iii) interest bearing demand or time deposits
issued by any Lender or certificates of deposit, bankers
acceptances and other "money market instruments" maturing
within one hundred eighty (180) days from the date of
issuance thereof and issued by a bank or trust company
organized under the laws of the United States or of any state
thereof having capital surplus and undivided profits
aggregating at least $1,000,000;
(iv) prime commercial paper of the Agent, each
Lender or their respective affiliates, and prime commercial
paper rated P-1 by Moody's, or A-1 by S&P;
(v) Repurchase Agreements;
(vi) Municipal Obligations;
"Employee Benefit Plan" means any employee benefit plan
within the meaning of Section 3(3) of ERISA which (a) is maintained
for employees of the Borrower or is assumed by the Borrower in
connection with any Acquisition or any of its ERISA Affiliates or (b)
has at any time since November 1, 1995 been maintained for the
employees of the Borrower or any current or former ERISA Affiliate;
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct
concerning, any environmental matters or conditions, environmental
protection or conservation, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended; the Superfund Amendments and Reauthorization Act
of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law;
"Equity Offering" means a public or private offering of
equity securities (including, without limitation, any security or
investment not constituting Indebtedness exchangeable, exercisable or
convertible for or into, or otherwise entitling the holder to receive,
equity securities) of the Borrower or any Subsidiary (other than
securities issued to the Borrower or another Subsidiary); provided,
however, the term "Equity Offering" shall not include (i) the portion
of any such offering that does not result in any Net Proceeds to the
Borrower or any Subsidiary and (ii) any issuance of equity securities
in connection with the exercise of stock options or warrants granted
to, or purchase of restricted stock by, eligible participants under
the Stock Option Plan;
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder;
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is
under common control with the Borrower, who together with the
Borrower, is treated as a single employer within the meaning of
Section 414(b) and (c) of the Code;
"Eurodollar Rate" means the interest rate per annum
determined pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate Applicable
------------------------ + Margin
1 - Reserve Requirement
"Eurodollar Rate Loan" means any Revolving Loan that bears
interest at the Eurodollar Rate;
"Event of Default" means any of the occurrences set forth as
such in Section 12.1 hereof;
"Excess Cash Flow" means, with respect to the Borrower and
its Subsidiaries for any Fiscal Year, the difference of (i)
Consolidated EBITDA for such period (including therein any net gain or
loss, as applicable, of an extraordinary nature otherwise excluded
from the calculation thereof in the definition of "Consolidated Net
Income") minus (ii) the sum of (A) the Change in Consolidated Working
Capital as at the end of such Fiscal Year, provided any positive
Change in Consolidated Working Capital shall not exceed $2,500,000 for
any Fiscal Year, plus (B) Capital Expenditures, plus (C) Consolidated
Interest Expense, plus (D) required principal payments on Consolidated
Funded Indebtedness and optional prepayments of the Term Loan, plus
(E) taxes on income accrued during such period, plus (F) all cash paid
as part of the cost of any Acquisition plus (G) all amounts included
in the calculation of Consolidated EBITDA for the purposes of this
definition to the extent such amounts are subject to the mandatory
prepayment provisions of Section 2.6(a), (b), (c) or (e) hereof;
"Existing Credit Agreement" has the meaning given to such
term in the recitals hereto;
"Existing Indebtedness" means the Indebtedness for Money
Borrowed of the Borrower described on Schedule 10.1 giving effect to
the Assignment and Amendment;
"Eyecare Products" means Eyecare Products Plc, a public
liability company incorporated in England (Registration Number
2158452);
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"Facilities" means the Term Loan Facility, the Revolving
Credit Facility and the Letter of Credit Facility;
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility by payment in full of all
Revolving Credit Outstandings and Letter of Credit Outstandings,
together with all accrued and unpaid interest thereon, except for such
issued and undrawn Letters of Credit as have been fully cash
collateralized in a manner consistent with the terms of Section
12.1(l)(B), (b) the Borrower shall have paid all Term Loan
Outstandings in full, together with all accrued and unpaid interest
thereon, (c) all Swap Agreements shall have been terminated, expired
or cash collateralized, (d) all Term Loan Commitments, Revolving
Credit Commitments and Letter of Credit Commitments shall have
terminated or expired and (e) the Borrower shall have fully, finally
and irrevocably paid and satisfied in full all Obligations (other than
Obligations consisting of continuing indemnities and other contingent
Obligations of the Borrower or any Guarantor that may be owing to the
Lenders pursuant to the Loan Documents and expressly survive
termination of this Agreement);
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, provided that (a)
if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average
rate quoted to the Agent on such day on such transactions as
determined by the Agent in a commercially reasonable manner;
"FF Equivalent Amount" means, on any date, the amount of
French Francs into which a Dollar amount would be converted based on
the applicable Spot Rate of Exchange on such date.
"FF LIBOR Rate" means the interest rate per annum calculated
according to the following formula:
FF = Interbank Offered Rate Applicable
LIBORRate ------------------------ + Margin
1 - Reserve Requirement
"FF LIBOR Rate Loans" means any FF LIBOR Rate Revolving Loans
and any Segment;
"FF LIBOR Rate Revolving Loans" means any Revolving Loan that
bears interest at the FF LIBOR Rate;
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"FF Loan" means the Term Loan and any FF Revolving Loan;
"FF Rate Revolving Loan Valuation Date" shall have the
meaning ascribed to such term in Section 3.1(b) hereof;
"FF Revolving Loan" means any Revolving Loan denominated in
French Francs;
"FF Revolving Loan Outstandings" means, as of any date of
determination, the aggregate principal amount of all FF Revolving
Loans then outstanding;
"FF Revolving Loan Valuation Date" has the meaning ascribed
to such term in Section 3.1(b) hereof;
"FG Mortgage Debt" means all Indebtedness of the Borrower
assumed thereby pursuant to the Bill of Sale and initially incurred by
ORC Management and secured by that certain Deed of Trust and Security
Agreement dated as of March 31, 1995 by Foster Grant Group, L.P. in
favor of Wells Fargo (Texas), N.A., successor by merger to First
Interstate Bank of Texas, N.A., as amended;
"Fiscal Year" means the twelve (12) month fiscal period of
the Borrower ended December 31 of each calendar year;
"Fixed Rate Loan" means any Fixed Rate Revolving Loan and any
Segment;
"Fixed Rate Revolving Loan" means any Eurodollar Rate Loan
and any FF LIBOR Rate Revolving Loan;
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan;
"Foreign Control Subsidiary" means any Control Subsidiary
organized under the laws of any jurisdiction other than one of the
states comprising the United States of America, any territory thereof
or the District of Columbia;
"Foreign Subsidiary" means any Subsidiary organized under the
laws of any jurisdiction other than one of the states comprising the
United States of America, any territory thereof or the District of
Columbia;
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower taken together as one accounting
period;
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"French GAAP" those generally accepted accounting principles
which from time to time have substantive authoritative support in
France and are applicable in the circumstances as of the date of
delivery of any applicable financial statements hereunder;
"French Francs" or "FF" means the official currency of France;
"GAAP" or "Generally Accepted Accounting Principles" means
those generally accepted principles of accounting set forth in
pronouncements of the Financial Accounting Standards Board, the
Accounting Principles Board, the American Institute of Certified
Public Accountants or which have other substantial authoritative
support and are applicable in the circumstances as of the date of a
report, as such principles are from time to time supplemented and
amended, subject to compliance at all times with Section 1.2 hereof;
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America;
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative or
judicial, regulatory or administrative functions of or pertaining to
any government or any court, in each case whether a state of the
United States, the United States or foreign nation, state, province or
other governmental instrumentality;
"Guarantor" means Bolle America, ORC Management and any other
Domestic Subsidiary now existing or hereafter created or acquired;
"Guaranty" means, collectively (or individually as the
context may indicate), (i) the Second Amended and Restated Guaranty
Agreement executed by Bolle America and ORC Management on the Closing
Date and (ii) each Guaranty Agreement executed by a Guarantor (whether
of even date herewith or delivered after the Closing Date pursuant to
Section 9.21 hereof and whether executed individually or jointly and
severally with other Guarantors) in favor of the Agent guaranteeing in
whole or in part the payment of the Obligations, substantially in the
form of Exhibit E attached hereto and incorporated herein by
reference, as from time to time amended, supplemented or replaced;
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law;
"Hedging Obligations" means any and all obligations of the
Borrower, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or
NB BOLLE CREDIT AGREEMENT (FINAL)
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acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties
thereto from the fluctuations of interest rates, currency exchange
rates or forward rates applicable to such party's commodities, assets,
liabilities or exchange transactions, including, but not limited to,
Dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate
options, puts, warrants and those commonly known as interest rate
"swap" agreements, and forward commodity price options, puts, warrants
and those commonly known as commodity "swap" agreements; and (ii) any
and all cancellations, buybacks, reversals, terminations or
assignments of any of the foregoing;
"Indebtedness" of a Person shall mean, without duplication,
(i) all Indebtedness for Money Borrowed, (ii) obligations of such
Person arising under acceptance facilities, (iii) the undrawn face
amount of, and unpaid reimbursement obligations in respect of, all
letters of credit issued for the account of such Person, (iv) all
obligations of such Person upon which interest charges are customarily
paid, other than trade payables incurred in the ordinary course of
business, operating leases and taxes, (v) all obligations of such
Person under conditional sale or other title retention agreements
relating to property purchased by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (vi)
all executory obligations of such Person in respect of Hedging
Obligations and (vii) all Contingent Obligations in respect of
Indebtedness of other Persons;
"Indebtedness for Money Borrowed" means for any Person all
indebtedness in respect of money borrowed, including without
limitation all Capital Leases and the deferred purchase price of any
property or asset, evidenced by a promissory note, bond, debenture or
similar written obligation for the payment of money, other than trade
payables incurred in the ordinary course of business (including, but
not limited to all conditional sales or similar title retention
agreements);
"Intellectual Property" has the meaning given to such term in
Section 8.13 hereof;
"Intellectual Property Assignments" means those certain
Assignments of Patents, Trademarks, Copyrights and Licenses in the
form attached to the Intellectual Property Security Agreement as
Exhibit A, to be filed upon acceleration of the Obligations hereunder,
as from time to time amended, supplemented or replaced;
"Intellectual Property Security Agreement" means,
collectively (or individually as the context may indicate), (i) the
Second Amended and Restated Intellectual Property Security Agreement
dated as of the Closing Date executed by the Borrower and its Domestic
Subsidiaries and (ii) each other Intellectual Property Security
Agreement executed by the Borrower or a Domestic Subsidiary (whether
of even date herewith or delivered after the Closing Date pursuant to
Article VI or Section 9.21 hereof and whether executed individually or
jointly and severally with other Subsidiaries) in favor of the Agent
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to collaterally secure payment and performance of its respective
obligations hereunder and under the Guaranty, as applicable,
substantially in the form of Exhibit M attached hereto and
incorporated herein by reference, as from time to time amended,
supplemented or replaced;
"Interbank Offered Rate" means,
(i) for any Eurodollar Rate Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate
Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not
available, the term "Interbank Offered Rate" shall mean, for
any Eurodollar Rate Loan for any Interest Period therefor,
the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of such Interest period for a term
comparable to such Interest Period; provided, however, if
more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100 of
1%); and
(ii) for any FF LIBOR Rate Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate
Page 3740 (or any successor page) as the London interbank
offered rate for deposits in French Francs at approximately
11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period for a term comparable to
such Interest Period. If for any reason such rate is not
available, the term "Interbank Offered Rate" shall mean, for
any FF LIBOR Rate Loan, the rate determined by the Agent in
its reasonable sole discretion;
"Intercompany Notes" means those notes from time to time
evidencing Indebtedness owed to the Borrower or any Domestic
Subsidiary of the Borrower from any foreign Subsidiary in an aggregate
amount not in excess of FF 204,171,000, substantially in the form of
Exhibit T hereto;
"Intercompany Note Assignment" means that certain Amended and
Restated Collateral Assignment of Intercompany Notes between the
Borrower, certain Subsidiaries and the Agent for the benefit of the
Lenders dated as of the date hereof in the form of Exhibit S hereto
and incorporated herein by reference;
"Interest Period" for each Fixed Rate Loan means a period
commencing on the date such Fixed Rate Loan is made or converted and
each subsequent period commencing on the last day of the immediately
preceding Interest Period for such Fixed Rate Loan, and
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ending, at the Borrower's option, on the date one, two, three or six
months thereafter as notified to the Agent by the Authorized
Representative three (3) Business Days prior to the beginning of such
Interest Period; provided, that,
(A) if the Authorized Representative fails
to notify the Agent of the length of an Interest
Period three (3) Business Days prior to the first
day of such Interest Period, the Interest Period for
such Loan shall be deemed to be one month;
(B) if an Interest Period for a Fixed Rate
Loan would end on a day which is not a Business Day
such Interest Period shall be extended to the next
Business Day (unless such extension would cause the
applicable Interest Period to end in the succeeding
calendar month, in which case such Interest Period
shall end on the next preceding Business Day);
(C) any Interest Period which begins on the
last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a
calendar month;
(D) no Interest Period shall extend
past the Revolving Credit Termination Date or the
Term Loan Termination Date;
(E) on any day, with respect to all Loans,
there shall be not more than eight (8) Interest
Periods in effect;
"Interest Rate Selection Notice" means the notice delivered
by an Authorized Representative in connection with the election of a
subsequent interest period for any Fixed Rate Loan or the conversion
of any Eurodollar Rate Loan into a Base Rate Loan or the conversion of
any Base Rate Loan into a Eurodollar Rate Loan, in the form of Exhibit
F attached hereto and incorporated herein by reference;
"Issuing Bank" means NationsBank, or any successor or
replacement bank, as issuer of Letters of Credit in accordance with
Article 4 hereof;
"Landlord Waivers" means, collectively, each of the Landlord
Waivers delivered by the landlord of each material facility leased by
the Borrower and any Guarantor listed on Schedule 1 hereto or arising
after the Closing Date and delivered by the Borrower and the
Guarantors, as applicable, pursuant to Article VI or Section 9.21
hereof, substantially in the form of Exhibit P hereto and incorporated
herein by reference;
"LC Account Agreement" means the LC Account Agreement dated
as of the date hereof between the Borrower and the Agent in the form
of Exhibit K-1 hereto, as amended, supplemented or replaced from time
to time;
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"Lease Assignments" means, collectively, each Collateral
Assignment of Lease assigning to the Agent each material facility
lease of the Borrower and any Guarantor listed on Schedule 1 hereto or
entered into after the Closing Date and delivered by the Borrower and
the Guarantors, as applicable, pursuant to Article VI hereof to
collaterally secure the Borrower's Obligations and the Guarantors'
Obligations under the Guaranty, substantially in the form of Exhibit Q
hereto and incorporated herein by reference;
"Letter of Credit" means any Standby Letter of Credit or
Commercial Letter of Credit issued by Issuing Bank for the account of
the Borrower as described in Article IV hereof;
"Letter of Credit Commitment" means with respect to each
Lender, the obligation of such Lender to acquire Participations up to
an aggregate stated amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total Letter of
Credit Commitment as the same may be increased or decreased from time
to time pursuant to this Agreement;
"Letter of Credit Facility" means the facilities described in
Article IV hereof providing for the issuance by Issuing Bank for the
account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of
Credit Commitment;
"Letter of Credit Outstandings" means all undrawn amounts of
Letters of Credit plus Reimbursement Obligations;
"License Agreement" means, collectively (or individually as
the context may indicate), (i) that certain Distributorship Agreement
dated December 15, 1992, as amended thereafter and amended as of July
10, 1997 by that certain Amendment to Distributorship Agreement, each
between Bolle America and Bolle SNC pursuant to which Bolle America
has received a worldwide unrestricted, non-exclusive license to all of
the trademarks, copyrights and patents of Bolle France, and (ii) each
other similar distributorship or license agreement to which the
Borrower or a Subsidiary is a party relating to the trademarks,
copyrights or patents of Bolle France, in each case which license
agreements shall permit the assignment thereof to the Agent for the
benefit of the Lenders and each of its further assignees pursuant to
the Intellectual Property Security Agreement and the Intellectual
Property Assignments and shall have a scheduled expiration or
termination date occurring on or after the Scheduled Maturity Date;
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and its
Subsidiaries shall be deemed to be the owners of any property which
either of them have acquired or hold subject to a
NB BOLLE CREDIT AGREEMENT (FINAL)
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conditional sale agreement, financing lease, or other arrangement
pursuant to which title to the property has been retained by or vested
in some other Person for security purposes;
"Loan" or "Loans" means any of the Revolving Loans or the
Term Loan;
"Loan Documents" means this Agreement, the Notes, the
Guaranty, the Security Instruments and all other instruments and
documents now or hereafter executed or delivered to and in favor of
any Lender or the Agent in connection with the Loans or the Letters of
Credit made, issued or created under this Agreement, all as from time
to time amended, supplemented or replaced;
"Management Services Agreement" means that certain Management
Services Agreement between the Borrower and BEC substantially in the
form attached to the Merger Agreement;
"Material Adverse Effect" means a material adverse effect on
the business, properties, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries on a consolidated
basis;
"Material Subsidiary" means any direct or indirect Domestic
Subsidiary of the Borrower which (i) has total assets equal to or
greater than 5% of Consolidated Total Assets (calculated as of the
most recent fiscal period with respect to which the Agent shall have
received financial statements required to be delivered pursuant to
Sections 9.1(a) or (b) (or if prior to delivery of any financial
statements pursuant to such Sections, then calculated with respect to
the Fiscal Year end financial statements referenced in Section 8.6
hereof) (the "Required Financial Information")) or (ii) has pretax
income equal to or greater than 5% of Consolidated Pretax Income (each
calculated for the most recent period for which the Agent has received
the Required Financial Information); provided, however, that
notwithstanding the foregoing, the term "Material Subsidiaries" shall
mean domestic Subsidiaries of the Borrower that together with the
Borrower have assets equal to not less than 95% of Consolidated Total
Assets (calculated as described above) and net income of not less than
95% of Consolidated Pretax Income (calculated as described above);
provided further that if more than one combination of domestic
Subsidiaries satisfies such threshold, then those Subsidiaries so
determined to be "Material Subsidiaries" shall be specified by the
Borrower;
"Moody's" means Moody's Investors Service, Inc.;
"Mortgages Over Shares" means (i) that certain Mortgage Over
Shares of even date herewith by the Borrower in favor of the Agent
with respect to the shares of Eyecare Products and (ii) that certain
Mortgage Over Shares of even date herewith by the Borrower in favor of
the Agent with respect to the shares of Tavister.
"Mortgaged Property" means certain real property subject to
the FG Mortgage Debt;
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"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) years;
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated, in their
capacity as issuer of general obligations, in the highest investment
rating category by both S&P and Moody's;
"NMS" means NationsBanc Montgomery Securities LLC and its
successors;
"Net Proceeds" (a) from any Equity Offering means cash
payments received by the Borrower therefrom as and when received, net
of all legal, accounting, banking and underwriting fees and expenses,
commissions, discounts and other issuance expenses incurred in
connection therewith and all taxes required to be paid or accrued as a
consequence of such issuance; and (b) from any Asset Disposition or
option exercised under the Option Agreement means cash payments
received by the Borrower therefrom (including any cash payments
received pursuant to any note or other debt security received in
connection with any Asset Disposition) as and when received, net of
(i) all legal fees and expenses and other fees and expenses paid to
third parties and incurred in connection therewith, (ii) all taxes
required to be paid or accrued as a consequence of such sale and (iii)
with respect to an Asset Disposition only, amounts applied to
repayment of Indebtedness (other than the Obligations) secured by a
Lien on the asset or property disposed;
"Notes" means, collectively, the Term Notes and the Revolving
Notes;
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the
Reimbursement Obligations, (iii) all liabilities of Borrower to any
Lender which arise under a Swap Agreement, and (iv) the payment and
performance of all other obliga tions, liabilities and Indebtedness of
the Borrower to the Lenders or the Agent hereunder, under any one or
more of the other Loan Documents or otherwise with respect to the
Loans;
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement of such entity;
"Option Agreement" means that certain Option Agreement dated
November 14, 1996 between the Borrower and The Lantis Corporation, as
amended from time to time;
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"ORC Management" means ORC Management Corporation, a Delaware
corporation;
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization or certificate
of limited partnership of such entity;
"Outstandings" means, at any time of determination, the sum
of the Term Loan Outstandings, the Revolving Credit Outstandings and
the Letter of Credit Outstandings;
"Parkhurst" means Parkhurst Oaks Ltd.;
"Participation" means, with respect to any Lender (other than
Issuing Bank), the extension of credit represented by the
participation of such Lender hereunder in the liability of Issuing
Bank in respect of a Letter of Credit issued by Issuing Bank in
accordance with the terms hereof;
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto;
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of
ERISA or Section 412 of the Code and which is, or was since October
16, 1992, maintained for employees of the Borrower or any ERISA
Affiliate;
"Permitted Acquisition" means the Bolle Australia Acquisition
and the Bolle UK Acquisition if consummated and effective on or prior
to June 30, 1998 pursuant to the Share Purchase Agreements and as to
which all applicable conditions specified in Section 7.1 and Section
7.2 hereof shall have been satisfied;
"Permitted Indebtedness" has the meaning assigned to such
term in Section 10.1 hereof;
"Permitted Liens" has the meaning assigned to such term in
Section 10.2 hereof;
"Person" means an individual, partnership, corporation,
trust, unincorporated organization, association, joint venture or a
government or agency or political subdivision thereof;
"Pledged Stock" means (i) all of the capital stock and
related rights and interests directly or indirectly owned by the
Borrower of each direct and indirect Domestic Subsidiary and Domestic
Control Subsidiary, (ii) all of the capital stock and related rights
and interests of Eyecare Products Plc owned by the Borrower, (iii) all
of the AAi
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Preferred Stock (iv) 65% of the Voting Stock and 100% of the nonvoting
capital stock and related interests and rights directly or indirectly
owned by the Borrower of each Direct Foreign Subsidiary and Direct
Foreign Control Subsidiary, and (v) 100% of the capital stock and
related interests and rights directly or indirectly owned by the
Borrower of any Foreign Subsidiary or Foreign Control Subsidiary to
the extent such action would not result in any material adverse tax
impact on the Borrower in each case now or hereafter pledged by the
Borrower and certain Subsidiaries pursuant to the Stock Pledge
Agreement;
"Preferred Stock" means, collectively, the Series A Preferred
Stock and the Series B Preferred Stock;
"Prime Rate" means the per annum rate of interest established
from time to time by NationsBank as its prime rate, which rate may not
be the lowest rate of interest charged by NationsBank to its
customers;
"Principal Office" means the office of the Agent at
NationsBank, National Association, Independence Center, 15th Floor,
NC1 001-15-04, Charlotte, North Carolina 28255, Attention: Agency
Services, or such other office and address as the Agent may from time
to time designate in writing;
"Regulation D" means Regulation D of the Board as the same
may be amended or supplemented from time to time;
"Regulatory Change" means any change in, or the adoption or
making of new, United States Federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States Federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged
with the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy,
whether or not having the force of law, whether or not failure to
comply therewith would be unlawful;
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by Issuing Bank of
proceeds of Loans pursuant to Section 4.2 hereof) for amounts
theretofore paid by Issuing Bank pursuant to a drawing under such
Letter of Credit;
"Repurchase Agreement" means a repurchase agreement entered
into with (i) any financial institution whose debt obligations are
rated "A" by either of S&P or Moody's or whose commercial paper is
rated "A-1" by S&P or "P-1" by Moody's, or (ii) any Lender;
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"Required Lenders" means, as of any date, Lenders on such
date having Credit Exposures (as defined below) aggregating in excess
of 50% of the aggregate Credit Exposures of all the Lenders on such
date. For purposes of the preceding sentence, the amount of the
"Credit Exposure" of each Lender shall be equal at all times (a) other
than following the occurrence and during the continuance of an Event
of Default, to the sum of its Revolving Credit Commitment and Term
Loan Commitment, and (b) following the occurrence and during the
continuance of an Event of Default, to the sum of (i) the amount of
such Lender's Applicable Commitment Percentage of Term Loan
Outstandings plus (ii) the aggregate principal amount of such Lender's
Applicable Commitment Percentage of Revolving Credit Outstandings plus
(iii) the amount of such Lender's Applicable Commitment Percentage of
Letter of Credit Outstandings; provided that, for the purpose of this
definition only, (x) if any Lender shall have failed to fund its
Applicable Commitment Percentage of any Advance, the Term Loan
Commitment or Revolving Credit Commitment, as applicable, of such
Lender shall be deemed reduced by the amount it so failed to fund for
so long as such failure shall continue and such Lender's Credit
Exposure attributable to such failure shall be deemed held by any
Lender making more than its Applicable Commitment Percentage of such
Advance to the extent it covers such failure, and if any Lender shall
have failed to pay to the Issuing Bank upon demand its Applicable
Commitment Percentage of any drawing under any Letter of Credit
resulting in an outstanding Reimbursement Obligation, such Lender's
Credit Exposure attributable to such Letter of Credit Outstandings
shall be deemed to be held by Issuing Bank;
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors
of the Federal Reserve System (or any successor) by member banks of
the Federal Reserve System against, in the case of Fixed Rate Loans,
"Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement
shall reflect any other reserves required to be maintained by such
member banks with respect to (i) any category of liabilities which
includes deposits by reference to which any Fixed Rate is to be
determined or (ii) any category of extensions of credit or other
assets which include Fixed Rate Loans. Fixed Rate Loans shall be
deemed to constitute Eurocurrency liabilities and as such shall be
deemed subject to reserve requirements without benefits of credit for
proration, exceptions or offsets that may be available from time to
time to the Agent. Fixed Rate Loans shall be adjusted automatically on
and as of the effective date of any change in the Reserve Requirement.
"Revolving Credit Commitment" means with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower and to purchase Participations up to an aggregate principal
amount at any time outstanding equal to the amount set forth opposite
each Lender's name on Exhibit A hereto as the same may be increased or
decreased from time to time pursuant to this Agreement;
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"Revolving Credit Facility" means the facility described in
Article III hereof providing for Revolving Loans to the Borrower by
the Lenders in an aggregate principal amount equal to (i) the
Revolving Credit Commitment, less (ii) the aggregate principal amount
of Letter of Credit Outstandings;
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding;
"Revolving Credit Termination Date" means the earliest to
occur of (i) March 11, 2001, or (ii) such earlier date of termination
of the Lenders' obligations pursuant to Section 12.1 hereof upon the
occurrence of an Event of Default, or (iii) such date as the Borrower
may permanently terminate the Revolving Credit Facility by payment in
full of all Obligations thereunder (including the discharge of all
obligations of the Issuing Bank and the Lenders with respect to
Letters of Credit and Participations) pursuant to Section 3.6 hereof;
"Revolving Loan" means a Loan made under the Revolving Credit
Facility pursuant to Section 3.1 hereof;
"Revolving Loan Rate Adjustment Payment" shall have the
meaning ascribed to such term in Section 3.1(b) hereof;
"Revolving Notes" means the amended and restated promissory
notes of the Borrower evidencing the Revolving Loans executed and
delivered to the Lenders as provided in Section 3.9 hereof
substantially in the form of Exhibit J hereto, as amended,
supplemented, or replaced from time to time;
"S&P" means Standard & Poor's Rating Group, a division of the
McGraw Hill Company, Inc.;
"Scheduled Maturity Date" means March 11, 2003;
"Security Agreement" means, collectively (or individually as
the context may indicate), (i) the Second Amended and Restated
Security Agreement dated as of the date hereof by the Borrower and
each Guarantor to the Agent, and (ii) any additional Security
Agreement (whether of even date herewith or delivered after the
Closing Date pursuant to Article VI or Section 9.21 hereof and whether
executed individually or jointly and severally with other
Subsidiaries) delivered to the Agent, in each case, substantially in
the form attached hereto as Exhibit L, as such Security Agreement may
be amended, supplemented or replaced from time to time.
"Security Instruments" means the Security Agreement, the
Intellectual Property Security Agreement, the Stock Pledge Agreement,
the Collateral Assignment of Option Agreement, the Deed of Trust, the
Landlord Waivers, the Lease Assignments, the Intellectual Property
Assignments, the Intercompany Note Assignment, the Subordination
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Agreement and all other documents and agreements executed and
delivered in connection herewith granting to the Lenders Liens on any
assets of the Borrower or any Guarantor collaterally to secure payment
and performance of the Obligations and obligations under the Guaranty;
"Segment" means a portion of the Term Loan with respect to
which a particular interest rate is (or is proposed to be) applicable;
"Series A Certificate of Designation" means the designations,
rights and preferences of the Series A Preferred Stock as set forth in
the Amended and Restated Certificate of Incorporation of the Borrower
filed by the Borrower with the Secretary of State of Delaware on or
before the Closing Date;
"Series A Preferred Stock" means the 64,120 shares of Series
A Preferred Stock originally issued on or about July 10, 1997 by the
Borrower and containing such terms as are set forth in the Series A
Certificate of Designation;
"Series B Certificate of Designation" means the Certificate
of Designation of the Series B Preferred Stock of the Borrower filed
by the Borrower with the Secretary of State of Delaware on or before
the Closing Date;
"Series B Preferred Stock" means the 10,000 shares of Series
B Preferred Stock issued by the Borrower on the Closing Date to each
of the former holders of the Series A Preferred Stock issued by BEC on
or about July 10, 1997 and containing such terms as are set forth in
the Series B Certificate of Designation;
"Share Purchase Agreements" means, collectively, the Bolle
Australia Share Purchase Agreement and the Bolle UK Share Purchase
Agreement;
"Single Employer Plan" means any employee pension benefit
plan covered by Title IV of ERISA in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA and which is not a Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that
at the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including, without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted;
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"Spot Rate of Exchange" means (i) in determining the Dollar
Equivalent Amount of a French Franc amount as of any date, the spot
exchange rate determined by the Agent in accordance with its usual
procedures for the purchase by the Agent of Dollars with French Francs
at approximately 10:00 A.M. on the Business Day that is two (2)
Business Days prior to such date, and (ii) in determining the FF
Equivalent Amount of a Dollar amount on any date, the spot exchange
rate as determined by the Agent in accordance with its usual
procedures for the purchase by the Agent of French Francs with Dollars
at approximately 10:00 A.M. on the Business Day that is two (2)
Business Days prior to such date;
"Standby Letter of Credit" means an irrevocable standby
letter of credit issued hereunder for the account of the Borrower or
any of its Subsidiaries, provided that the expiry date of a Standby
Letter of Credit shall not be later than twelve (12) months subsequent
to the date of issuance thereof;
"Stock Option Plan" means the Bolle Inc. 1998 Stock Incentive
Plan;
"Stock Pledge Agreement" means, collectively (or individually
as the context may indicate), (i) that certain Second Amended and
Restated Stock Pledge Agreement dated as of the date hereof between
the Borrower, certain Guarantors and the Agent for the benefit of the
Agent and the Lenders, (ii) the Mortgages Over Shares, and (iii) any
additional Stock Pledge Agreement delivered to the Agent pursuant to
Article VI or Section 9.21 hereof, in each case, substantially in the
form attached hereto as Exhibit G, as such Stock Pledge Agreement may
be amended, supplemented or replaced from time to time;
"Subordination Agreement" means that certain Subordination
Agreement dated as of the date hereof between the Agent, the Borrower
and certain Subsidiaries now or hereafter a party thereto,
substantially in the form attached hereto as Exhibit U, as such
Subordination Agreement may be amended, supplemented or replaced from
time to time;
"Subordinated Indebtedness" means all Indebtedness permitted
to be incurred under the terms hereof that is subordinated to the
Facilities under its own terms or under any separate agreement of
subordination, in each case upon terms satisfactory to the Agent,
including without limitation any subordinated indebtedness issued in
redemption of the Series A Preferred Stock;
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding stock having ordinary voting power or
more than 50% of all equity interests is owned or controlled directly
or indirectly by the Borrower or by one or more of the Borrower's
Subsidiaries, in each case, at or after the Closing Date; provided,
however, that, subject to Section 1.3(a) hereof, the term "Subsidiary"
shall not include any Control Subsidiary;
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"Swap Agreement" means one or more agreements between the
Borrower and a Lender, on terms mutually acceptable to such Borrower
and such Lender with respect to Indebtedness evidenced by the Notes,
which agreements create Hedging Obligations;
"Tavister" means Tavister Limited, a company incorporated in
England and Wales (Reg. No. 3381752);
"Term Loan" means the loan made pursuant to the Term Loan
Facility in accordance with Article II;
"Term Loan Commitment" means, with respect to each Lender,
the obligation of such Lender as set forth in Section 2.2 hereof to
make the Term Loan to the Borrower in a principal amount equal to such
Lender's Applicable Commitment Percentage of the Total Term Loan
Commitment as set forth on Exhibit A;
"Term Loan Facility" means the facility described in Article
II providing for the Term Loan to the Borrower by the Lenders in the
principal amount of the Total Term Loan Commitment;
"Term Loan Outstandings" means, as of any date of
determination, the principal amount of the Term Loan then outstanding;
"Term Notes" means, collectively, the amended and restated
promissory notes of the Borrower evidencing the Term Loan executed and
delivered to the Lenders as provided in Section 2.9 substantially in
the form of Exhibit I, with appropriate insertions as to amounts,
dates and names of Lenders as the same may be amended, supplemented or
replaced from time to time;
"Term Loan Rate Adjustment Payment" has the meaning ascribed
to such term in Section 2.2(d)(iv) hereof;
"Term Loan Termination Date" means (i) March 11, 2003 or (ii)
such earlier date of termination of Lenders' obligations pursuant to
Section 12.1 upon the occurrence of an Event of Default, or (iii) such
date as the Borrower may voluntarily or by mandatory prepayment
permanently terminate the Term Loan Facility by payment in full of all
Obligations incurred in connection with the Term Loan pursuant to
Sections 2.6 or 2.7 hereof;
"Term Loan Valuation Date" has the meaning ascribed to such
term in Section 2.2(b)(iv) hereof;
"Termination Event" means: (a) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder; or (b)
the withdrawal of the Borrower or any ERISA Affiliate from a Pension
Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA or was deemed such under
Section
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4068(f) of ERISA; or (c) the termination of a Pension Plan, the filing
of a notice of intent to terminate a Pension Plan or the treatment of
a Pension Plan amendment as a termination under Section 4041 of ERISA;
or (d) the institution of proceedings to terminate a Pension Plan by
the PBGC; or (e) any other event or condition which would constitute
grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (f) the
partial or complete withdrawal of the Borrower or any ERISA Affiliate
from a Multiemployer Plan; or (g) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA; or (h) any event or
condition which results in the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
respectively; or (i) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or
the institution by the PBGC of proceedings to terminate a
Multiemployer Plan under Section 4042 of ERISA;
"Texas Property" means certain real property of the Borrower
assigned to the Borrower pursuant to the Bill of Sale, and all
improvements thereon, located in Dallas, Texas;
"Texas Property Purchase Agreement" means that Contract of
Sale dated as of January 15, 1998, as amended by the Reinstatement and
First Amendment to Contract of Sale dated as of March 3, 1998, by and
between ORC Management and MacFarlan Real Estate Series, L.L.C.
effecting the sale of the Texas Property by ORC Management in form and
substance acceptable to the Agent and the Lenders;
"Total Credit Commitment" means the sum of the Total Term
Loan Commitment, and the Total Revolving Credit Commitment;
"Total FF Loan Commitment" means, at any time, the FF
Equivalent Amount of the difference of (a) $28,000,000 less (b) all
Revolving Credit Outstandings attributable to Revolving Loans
denominated in Dollars.
"Total Letter of Credit Commitment" means $5,000,000;
"Total Revolving Credit Commitment" means $18,000,000, as
reduced from time to time in accordance with Sections 3.6 and 3.7
hereof;
"Total Term Loan Commitment" means, with respect to the
Lenders as a whole, a principal amount equal to FF61,290,000, such
amount being the FF Equivalent Amount on the Closing Date of
$10,000,000 available in French Francs;
"Type" shall mean any type of Loan or Segment bearing
interest at a specified rate (i.e., Base Rate Loan, Base Rate Segment,
FF LIBOR Rate Loan, FF LIBOR Rate Segment, Eurodollar Rate Loan or
Eurodollar Rate Segment);
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"UCC" means the Uniform Commercial Code of the State of New
York, as amended or supplemented from time to time.
"Unused Fee" has the meaning assigned to such term in Section
3.13(a) hereof;
"Voting Stock" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
SECTION 1.3 RULES OF INTERPRETATION.
(a) All accounting terms not specifically defined herein
shall have the meanings assigned to such terms and shall be
interpreted in accordance with GAAP applied on a Consistent Basis;
provided, however, that to the extent any term defined in this Article
I refers to "Subsidiaries" and contains a calculation to be made in
accordance with GAAP, the term "Subsidiaries" shall be deemed to
include Control Subsidiaries for the purpose of the calculation
contained within such definition;
(b) Each term defined in Article 1 or 9 of the UCC shall have
the meaning given therein unless otherwise defined herein, except to
the extent that the Uniform Commercial Code of another jurisdiction is
controlling, in which case such terms shall have the meaning given in
the Uniform Commercial Code of the applicable jurisdiction;
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof;
(d) Except as otherwise expressly provided, references herein
to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections,
paragraphs, clauses, annexes, appendices, exhibits and schedules in or
to this Agreement;
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of
such defined term, and all references to the masculine gender shall
include reference to the feminine or neuter gender, and vice versa, as
the context may require;
(f) When used herein or in any other Loan Document, words
such as "hereunder", "hereto", "hereof" and "herein" and other words
of like import shall, unless the context clearly indicates to the
contrary, refer to the whole of the applicable document and not to any
particular article, section, subsection, paragraph or clause thereof;
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(g) References to "including" means including without
limiting the generality of any description preceding such term;
(h) All dates and times of day specified herein shall refer
to such dates and times at Charlotte, North Carolina.
ARTICLE II
THE TERM LOAN
SECTION 2.1 THE TERM LOAN.
(a) Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make an Advance of the Term Loan on
the Closing Date on a pro rata basis determined by the Term Loan
Commitment of each Lender. The Term Loan shall be available in a
single draw at Closing. The principal amount of each Segment of the
Term Loan outstanding hereunder from time to time shall bear interest
at the FF LIBOR Rate; provided, however, that (i) no Segment shall
have an Interest Period that extends beyond the Scheduled Maturity
Date, (ii) each Segment shall be in the minimum FF Equivalent Amount
of $500,000 and, if greater, an integral multiple of the FF Equivalent
Amount of $50,000 and (iii) the principal amount of each Segment may,
subject to the provisions of Sections 2.3, 2.6 and 2.7 hereof, be
repaid only on the last day of the Interest Period with respect
thereto. No amount of the Term Loan repaid or prepaid by the Borrower
may be reborrowed hereunder, and no Advance of the Term Loan shall be
made by any Lender after the Closing Date.
(b) As early as practicable on the Closing Date, each Lender
shall, pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Term Loan to be made by it,
determined in accordance with Section 2.1(a) hereof, available to the
Borrower in French Francs at the Disbursing Bank, to the account of
the Agent with the Disbursing Bank. The amount so received by the
Disbursing Bank shall, subject to the terms and conditions of this
Agreement and upon instruction from the Agent to the Disbursing Bank
on or before 10:00 A.M. on the date of such Advance, be made available
to the Borrower by delivery of the proceeds thereof to the Borrower's
Account with the Disbursing Bank or otherwise as shall be directed by
the Authorized Representative and reasonably acceptable to the Agent.
(c) The principal amount outstanding of the Term Loan shall
be recorded by the Agent in French Francs which recorded amount shall
be reduced from time to time by the amount of any principal payments
with respect to the Term Loan.
(d) On the date of any Continuation of a Segment pursuant to
Section 2.10 hereof and, with respect to any Segment having an
Interest Period longer than three months, at the end of each
three-month period following the first day of such Interest Period
(each a "Term Loan Valuation Date"), the Agent shall determine and
record the
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amount of Term Loan Outstandings. If the aggregate amount of all Term
Loan Outstandings and FF Revolving Loan Outstandings exceeds the Total
FF Loan Commitment, the Borrower shall, within two Business Days of
written notice thereof from the Agent, repay (a "Term Loan Rate
Adjustment Payment") the portion of the Term Loan or FF Revolving
Loans, at the Borrower's election, necessary to ensure that the amount
of all Term Loan Outstandings and FF Revolving Loan Outstandings does
not exceed such Total FF Loan Commitment. Such Term Loan Rate
Adjustment Payment shall be accompanied by payment of all amounts due
pursuant to Section 5.5 hereof as a result of such Term Loan Rate
Adjustment Payment. The Agent shall maintain records sufficient to
identify the outstanding principal amount and Dollar Value of each
Segment.
SECTION 2.2 PAYMENT OF PRINCIPAL. Subject to mandatory and optional
prepayments provided for in Sections 2.5 and 2.6 hereof, the principal amount
of the Term Loan shall be repaid quarterly, commencing with the quarter ending
September 30, 1998, in the French Franc amounts of the Term Loan, and on the
dates set forth below; provided, however, that the entire amount of Term Loan
Outstandings shall be due and payable in full on the Term Loan Termination
Date:
Due Date Amount
September 30, 1998 FF 1,532,250
December 31, 1998 FF 1,532,250
March 31, 1999 FF 4,596,750
June 30, 1999 FF 4,596,750
September 30, 1999 FF 3,064,500
December 31, 1999 FF 3,064,500
March 31, 2000 FF 3,064,500
June 30, 2000 FF 3,064,500
September 30, 2000 FF 3,064,500
December 31, 2000 FF 3,064,500
March 31, 2001 FF 3,064,500
June 30, 2001 FF 3,064,500
September 30, 2001 FF 3,064,500
December 31, 2001 FF 3,064,500
March 31, 2002 FF 3,064,500
June 30, 2002 FF 3,064,500
September 30, 2002 FF 3,064,500
December 31, 2002 FF 3,064,500
March 11, 2003 All remaining principal
amount outstanding
SECTION 2.3 PAYMENT OF INTEREST.
(a) The Borrower shall pay interest to the Agent at the
Principal Office for the account of each Lender on the outstanding and
unpaid principal amount of the Term Loan
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made by such Lender for the period commencing on the date of the
Advance of such Term Loan or the commencement of an Interest Period
with respect to any Segment of such Term Loan, as applicable, until
(but not including) the end of the applicable Interest Period or the
date any Segment of the Term Loan shall be Continued or be otherwise
due at the applicable FF LIBOR Rate, such payments to be made in
French Francs; provided, however, that if any amount shall not be paid
when due (at maturity, by acceleration or otherwise) or if any other
Event of Default shall have occurred and be continuing hereunder, all
amounts outstanding hereunder shall bear interest thereafter at the
Default Rate from the date such Event of Default occurred until the
date such Event of Default is cured or waived.
(b) Interest on the outstanding principal balance of the Term
Loan shall be computed on the basis of a year of 360 days and
calculated for the actual number of days elapsed. Interest on the Term
Loan shall be paid on the last day of the applicable Interest Period
for each Segment and, for any Segment having an Interest Period
extending beyond three (3) months, also on the date occurring every
three (3) months after the commencement of such Interest Period, and
(iii) on the Term Loan Termination Date.
SECTION 2.4 MANNER OF PAYMENT.
(a) Each payment of principal (including any mandatory or
optional prepayment), interest and fees, and any other amount required
to be paid to the Lenders with respect to the Term Loan, shall be made
to the Agent at the Principal Office for the account of each Lender in
French Francs in immediately available funds without setoff, deduction
or counterclaim on or before 2:30 P.M. on the date such payment is
due. The Agent may, but shall not be obligated to, debit the Dollar
Value of any such payment which is not made by such time from any one
or more ordinary deposit accounts of the Borrower with the Agent.
(b) The Agent shall deem any payment made by or on behalf of
the Borrower that is not made (i)in French Francs, (ii) in immediately
available funds and (iii) prior to 2:30 P.M. on the date such payment
is due to be a non-conforming payment. Any such non-conforming payment
shall not be deemed to be received by the Agent until the time such
funds are paid in French Francs and become available funds. Any
non-conforming payment which conforms to clauses (i) and (ii) above
shall be deemed received by the Agent on the next Business Day. Any
non-conforming payment may constitute or become a Default or Event of
Default. The Agent shall give prompt written notice to the Authorized
Representative and each of the Lenders (confirmed in writing) if any
payment (other than a prepayment) is non-conforming. Interest shall
continue to accrue on any principal as to which a non-conforming
payment is made until such funds become available funds (but in no
event less than the period from the date of such payment to the next
succeeding Business Day) at the Default Rate (other than with respect
to non-conforming prepayments, with respect to which interest shall
continue to accrue on any principal as to which such non-conforming
payment is made until such funds become available funds at
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the one month FF LIBOR Rate) from the date such amount was due and
payable until the date such amount is paid in full.
(c) In the event that any payment hereunder or under the Term
Notes becomes due and payable on a day other than a Business Day, then
such due date shall be extended to the next succeeding Business Day
unless provided otherwise under clause (B) of the definition of
"Interest Period"; provided, however, that interest shall continue to
accrue during the period of any such extension; and provided further,
however, that in no event shall any such due date be extended beyond
the Term Loan Termination Date.
SECTION 2.5 OPTIONAL PREPAYMENTS. The Borrower may prepay the Term
Loan in whole or in part from time to time on any Business Day, without penalty
or premium, upon not less than three (3) Business Days' prior written notice
(effective upon receipt) to the Agent, which notice shall be irrevocable. Any
prepayment shall be made at a prepayment price equal to (i) the amount of
principal to be prepaid, plus (ii) all accrued and unpaid interest on the
amount so prepaid, to the date of prepayment. All prepayments under this
Section 2.5 shall be made in the minimum principal FF Equivalent Amount of
$500,000 or any integral multiple of the FF Equivalent Amount of $50,000 in
excess thereof (or in the entire remaining principal balance of the Term Loan),
and all such prepayments of principal shall be applied to installments of
principal in order of their maturity. No such prepayment shall result in the
payment of any Segment other than on the last day of the Interest Period of
such Segment unless such prepayment is accompanied by amounts due, if any,
under Section 5.5 hereof.
SECTION 2.6 MANDATORY PREPAYMENTS. In addition to the required
payments of principal of the Term Loan set forth in Section 2.2 hereof and any
optional payments of principal of the Term Loan effected under Section 2.5
hereof, the Borrower shall make the following required prepayments, each such
payment to be made to the Agent for the benefit of the Lenders within the time
period specified below in the FF Equivalent Amount of the amount due:
(a) Asset Dispositions. The Borrower shall make, or shall
cause each applicable Subsidiary to make, a prepayment from the Net
Proceeds of any Asset Disposition resulting in Net Proceeds which (i)
exceed $150,000 for any single or series of related transactions or
(ii) when aggregated with all other Net Proceeds from Asset
Dispositions received during any Fiscal Year exceed $300,000, in each
case, in an amount equal to one hundred percent (100%) of such Net
Proceeds in excess of such threshold amounts. Each such prepayment
shall be made within five (5) Business Days of receipt of such Net
Proceeds and upon not less than three (3) Business Days' written
notice to the Agent, which notice shall include a certificate of an
Authorized Representative setting forth in reasonable detail the
calculations utilized in computing the amount of Net Proceeds.
Notwithstanding the foregoing, however, there shall be excluded from
the calculation of the Net Proceeds for any payment required under
this Section 2.6(a) 100% of the Net Proceeds from any disposition of
the Texas Property, investments or other assets of the Borrower or any
Subsidiary which are subject to Section 2.6(e) below.
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(b) Equity Offerings. In the event that the Consolidated
Leverage Ratio exceeds 2.50 to 1.00 for the most recently ended
Four-Quarter Period preceding any Equity Offering, the Borrower shall
make a prepayment from the Net Proceeds of such Equity Offering in an
amount equal to the lesser of (i) 100% of such Net Proceeds or (ii)
the amount of such Net Proceeds which would result in a Consolidated
Leverage Ratio equal to 2.50 to 1.00 after giving pro forma effect to
such prepayment for such Four-Quarter Period. Each such prepayment
shall be made within five (5) Business Days of receipt of such Net
Proceeds and upon not less than three (3) Business Days' written
notice to the Agent, which notice shall include a certificate of an
Authorized Representative setting forth in reasonable detail the
calculations utilized in computing the amount of Net Proceeds.
Notwithstanding the foregoing, however, any payment required under
this Section 2.6(b) shall not be required to the extent that any Net
Proceeds of an Equity Offering are used to repay or redeem all or a
portion of the Series B Preferred Stock permitted hereunder.
(c) Option Proceeds. The Borrower shall make a prepayment
from the Net Proceeds of any exercise of an option granted under the
Option Agreement in an amount equal to 100% of such Net Proceeds. Each
such prepayment shall be made within five (5) Business Days of receipt
of such Net Proceeds and upon not less than three (3) Business Days'
written notice to the Agent, which notice shall include a certificate
of an Authorized Representative setting forth in reasonable detail the
calculations utilized in computing the amount of Net Proceeds.
(d) Excess Cash Flow. The Borrower shall make a prepayment on
April 15 of each year in the amount equal to fifty percent (50%) of
the Borrower's Excess Cash Flow for the Fiscal Year ended immediately
prior thereto, commencing with the Fiscal Year ending December 31,
1998. Each such prepayment shall include a certificate of an
Authorized Representative setting forth in reasonable detail the
calculations utilized in computing Excess Cash Flow.
(e) Texas Property and Investment Net Proceeds. The Borrower
shall make a prepayment of (i) 100% of the Net Proceeds from any
disposition of (A) the Texas Property and (B) any capital stock of
Eyecare Products, if not sold pursuant to the terms of the Option
Agreement, and (ii) (A) 100% of the Net Proceeds from the disposition
of shares of Accessories Associates common stock received upon the
exchange of the AAi Preferred Stock in connection with or subsequent
to the Accessories Associates IPO and (B) 100% of the Net Proceeds
from (X) the redemption or any other disposition by the Borrower
(except as provided for in (A) immediately above) of the AAi Preferred
Stock after application of such Net Proceeds in compliance with the
terms of the Bill of Sale and/or (Y) if less than $1,000,000 of such
Net Proceeds as set forth in (X) immediately above is available for a
prepayment hereunder, the Borrower shall immediately seek an equity or
capital investment therein and prepay hereunder on the next Business
Day after the receipt of such investment an amount of the gross
proceeds of such an equity investment in the Borrower which, together
with the Net Proceeds available under (X) immediately available for a
prepayment hereunder, equals $1,000,000 (such prepayment
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pursuant to this Subsection 2.6(e)(ii), the "AAi Prepayment"). Each
such prepayment shall be made within five (5) Business Days of receipt
of such Net Proceeds and upon not less than three (3) Business Days'
written notice to the Agent, which notice shall include a certificate
of an Authorized Representative setting forth in reasonable detail the
calculations utilized in computing the amount of Net Proceeds.
The first $1,500,000 of mandatory prepayments made pursuant to Section 2.6(a)
shall be applied to the scheduled installments of principal remaining
outstanding under the Term Loan pursuant to Section 2.2 hereof (as adjusted to
give effect to any prior payments or prepayments of principal) in sequential
order of maturity. All mandatory prepayments made pursuant to Section 2.6(e)
shall be applied pro rata to the scheduled installments of principal remaining
outstanding under the Term Loan pursuant to Section 2.2 hereof (as adjusted to
give effect to any prior payments or prepayments of principal). The remaining
amounts of mandatory prepayments made pursuant to Section 2.6(a) and all
mandatory prepayments made pursuant to Section 2.6 (b), (c) or (d) hereof shall
be applied pro rata to the scheduled installments of principal remaining
outstanding under the Term Loan pursuant to Section 2.2 hereof (as adjusted to
give effect to any prior payments or prepayments of principal). If as a result
of the making of any payment required to be made pursuant to this Section 2.6
the Borrower would incur costs pursuant to Section 5.5 hereof in excess of
$5,000, it may deposit the amount of such payment with the Agent, for the
benefit of the Lenders, in a cash collateral account with and in the name of
the Agent established for such purpose pursuant to the terms of a Cash
Collateral Account Agreement, as to which the Agent shall have exclusive
control, until the end of the applicable Interest Period at which time such
payment shall automatically be made. Any prepayment of the Term Loan pursuant
to this Section 2.6 other than on the last day of an Interest Period which is
not subject to escrow pursuant to the immediately preceding sentence shall be
accompanied by the additional payment, if any, required by Section 5.5 hereof.
If at any time all Term Loan Outstandings shall be paid in full, the prepayment
requirements of this Section 2.6 shall continue and all such payments shall be
applied to permanently reduce the Revolving Credit Commitment pursuant to
Section 3.6(b).
SECTION 2.7 BORROWER'S ACCOUNT. The Borrower shall, until the Term
Loan Termination Date, continuously maintain the Borrower's Account for the
purposes herein contemplated.
SECTION 2.8 TERM NOTES. The Term Loan shall be evidenced by the Term
Notes payable to the order of each Lender in the respective amount of its Term
Loan Commitment, which Term Notes shall be dated the Closing Date or a later
date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
SECTION 2.9 INTEREST PERIODS. The Term Loan shall be, at the option of
the Borrower specified in the applicable Borrowing Notice or an Interest Rate
Selection Notice, comprised of Segments with the same or varying Interest
Periods; provided, however, there shall not be outstanding at any one time
Fixed Rate Loans having more than eight (8) different Interest Periods. If the
Agent does not receive an Interest Rate Selection Notice giving notice of
election of the duration of an Interest Period by the time prescribed by
Section 2.10 hereof, the Borrower
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shall be deemed to have elected to Continue such Segment with an Interest
Period of one month until the Borrower notifies the Agent in accordance with
Section 2.10 hereof.
SECTION 2.10 ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Provided that
no Default or Event of Default shall have occurred and be continuing and
subject to the limitations set forth below, the Borrower may, upon irrevocable
telephonic request, confirmed by same-day delivery of a properly completed
Interest Rate Selection Notice by telefacsimile transmission to the Agent (or
by execution and return of a confirmatory writing prepared by the Agent), on or
before 10:30 A.M. on the date that is three (3) Business Days prior to the date
of such conversion, elect a subsequent Interest Period for any Segment to begin
on the last day of the then current Interest Period for such Segment. Each
election pursuant to this Section 2.10 shall be subject to the limitations on
FF LIBOR Rate Loans set forth in the definition of "Interest Period" herein and
in Sections 2.1 and 2.9 and Article V hereof. All such Continuations of
Segments shall be effected pro rata based on the Applicable Commitment
Percentages of the Lenders. The failure of the Borrower to provide written
confirmation of any telephonic notice of election or conversion hereunder shall
not affect the validity of such telephonic notice.
SECTION 2.11 PRO RATA PAYMENTS. Except as otherwise provided herein,
(a) each payment on account of the principal of and interest on the Term Loan
shall be made to the Agent for the account of the Lenders pro rata based on
their Applicable Commitment Percentages of the Total Term Loan Commitment, (b)
all payments to be made by the Borrower for the account of each of the Lenders
on account of principal, interest and fees, shall be made without diminution,
set-off, recoupment or counterclaim, and (c) the Agent will promptly distribute
to the Lenders in immediately available funds payments received in fully
collected, immediately available funds from the Borrower.
SECTION 2.12 USE OF PROCEEDS. The proceeds of the Term Loan hereunder
shall be used by the Borrower (i) for working capital, (ii) to finance capital
expenditures permitted hereunder, (iii) to finance the Bolle Australia
Acquisition and the Bolle UK Acquisition, (iv) to finance Existing Indebtedness
other than the FG Mortgage and (vi) for other lawful corporate purposes.
ARTICLE III
REVOLVING LOANS
SECTION 3.1 REVOLVING LOANS.
(a) Commitment. Subject to availability and the terms and
conditions of this Agreement, each Lender severally agrees to make
Advances of Dollar Loans in Dollars or FF Revolving Loans in French
Francs (as specified in the respective Borrowing Notice) to the
Borrower under the Revolving Credit Facility from time to time from
the Closing Date until the Revolving Credit Termination Date on a pro
rata basis as to the total borrowing requested by the Borrower on any
day determined by such Lender's Applicable
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Commitment Percentage up to but not exceeding a Dollar Value equal to
the Revolving Credit Commitment of such Lender; provided, however,
that the Lenders will not be required and shall have no obligation to
make any Advance under the Revolving Credit Facility (i) so long as
any condition set forth in Section 7.2 hereof is not satisfied or (ii)
if the Agent has accelerated the maturity of any of the Notes as a
result of an Event of Default; provided, further, however, that
immediately after giving effect to each such Advance, (A) the Dollar
Value of all Revolving Credit Outstandings plus the Dollar Value of
Letter of Credit Outstandings shall not exceed the Total Revolving
Credit Commitment and (B) the Dollar Value of all Outstandings shall
not exceed the Total Credit Commitment. Within such limits, the
Borrower may borrow, repay and reborrow hereunder, on a Business Day,
from the Closing Date until, but (as to borrowings and reborrowings)
not including, the Revolving Credit Termination Date; provided,
however, that (y) no Fixed Rate Revolving Loan shall be made which has
an Interest Period that extends beyond the Revolving Credit
Termination Date and (z) each Fixed Rate Revolving Loan may, subject
to the provisions of Section 5.5, be repaid only on the last day of
the Interest Period with respect thereto.
(b) Records and Valuation. The principal amount of any
Advance of a Dollar Loan shall be recorded in the Agent's records in
Dollars and the principal amount of any Advance of a FF Revolving Loan
shall be recorded in the Agent's records in French Francs and such
recorded amount shall be reduced from time to time by the amount of
any principal payments with respect to such Advance. On the date of
any Continuation of a FF LIBOR Rate Loan pursuant to Section 3.11
hereof and, with respect to any FF Revolving Loan having an Interest
Period longer than three months, at the end of each three-month period
following the first day of such Interest Period (each a "FF Revolving
Loan Valuation Date"), the Agent shall determine and record the Dollar
Value of all Revolving Credit Outstandings. If (i) the aggregate
amount of all FF Revolving Loan Outstandings and Term Loan
Outstandings exceeds the Total FF Loan Commitment or (ii) the Dollar
Value of all Revolving Credit Outstandings plus the Dollar Value of
all Letter of Credit Outstandings exceeds the Total Revolving Credit
Commitment, the Borrower shall, within two Business Days of written
notice thereof from the Agent, repay (a "Revolving Loan Rate
Adjustment Payment") (A) in the case of clause (i) above, the portion
of the FF Revolving Loans or, at the election of the Borrower, the
Term Loan necessary to ensure that the aggregate amount of all FF
Revolving Loans Outstanding and Term Loan Outstandings does not exceed
the Total FF Loan Commitment, and (B) in the case of clause (ii)
above, the portion of any Loans necessary to ensure that the Dollar
Value of all Revolving Credit Outstandings plus the Dollar Value of
all Letter of Credit Outstandings does not exceed the Total Revolving
Credit Commitment. Such Revolving Loan Rate Adjustment Payment shall
be accompanied by payment of all amounts due pursuant to Section 5.5
hereof as a result of such Revolving Loan Rate Adjustment Payment. The
Agent shall maintain records sufficient to identify the outstanding
principal amount and Dollar Value of all Revolving Credit
Outstandings.
(c) Amounts. Each Revolving Loan made, Converted or
Continued, unless made in accordance with Section 3.2(f) hereof, shall
be (i) in the case of Dollar Loans, in a
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principal amount of at least $500,000, and, if greater, an integral
multiple of $50,000, and (ii) in the case of FF Revolving Loans, in a
principal amount of the FF Equivalent Amount of at least $500,000, and
if greater, the FF Equivalent Amount of an integral multiple of
$50,000.
SECTION 3.2 ADVANCES AND RATE SELECTION.
(a) An Authorized Representative shall give the Agent (a)
irrevocable telephonic notice of each Fixed Rate Revolving Loan,
whether representing an additional Advance hereunder or the conversion
of borrowings hereunder from Base Rate Loans to Eurodollar Rate Loans
or the election of a subsequent Interest Period for any Fixed Rate
Revolving Loan, prior to 10:30 A.M. at least three (3) Business Days
prior to the day such Advance is to be made or such Loan is to be
Converted or Continued; and (b) irrevocable telephonic notice of each
Base Rate Loan representing an additional Advance hereunder or the
conversion of borrowings hereunder from Eurodollar Rate Loans to Base
Rate Loans prior to 10:30 A.M. on the day such Advance is to be made
or such Loan is to be converted. Each such notice, which shall be
effective upon receipt by the Agent, shall specify the amount of the
Advance, the Applicable Currency, the type of Loan (Base Rate or Fixed
Rate), the date of the Advance and, if a Fixed Rate Revolving Loan,
the Interest Period to be used in the computation of interest. The
Authorized Representative shall provide the Agent written confirmation
of each such telephonic notice no later than 12:00 noon on the same
day received by telefacsimile transmission in the form of a Borrowing
Notice for additional Advances, or in the form of an Interest Rate
Selection Notice (or execution and return of a confirmatory writing
prepared by the Agent) for the selection or conversion of interest
rates for outstanding Revolving Loans, in each case with appropriate
insertions, but failure to provide such confirmation shall not affect
the validity of such telephonic notice.
(b) Notice of receipt of such Borrowing Notice or Interest
Rate Selection Notice, as the case may be, together with the amount of
each Lender's portion of an Advance requested thereunder, shall be
provided by the Agent to each Lender by telefacsimile transmission
with reasonable promptness, but (provided the Agent shall have
received such notice by 10:30 A.M.) not later than 12:00 P.M. on the
same day as the Agent's receipt of such notice.
(c) In the case of Advances of Dollar Loans, not later than
2:00 P.M. on the date specified for each borrowing under this Section
3.2, each Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the Advance or
Advances to be made by it on such day available by wire transfer to
the Agent in the amount of its pro rata share, determined according to
such Lender's Applicable Commitment Percentage of each Dollar Loan to
be made on such day. Such wire transfer shall be directed to the Agent
at the Principal Office and shall be in the form of Dollars
constituting immediately available funds. The amount so received by
the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by delivery of the
proceeds thereof to the Borrower's Account or otherwise as shall be
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directed in the applicable Borrowing Notice by the Authorized
Representative and reasonably acceptable to the Agent.
(d) In the case of Advances of FF Revolving Loans, not later
than 10:00 A.M. on the date specified for each Advance, each Lender
shall, pursuant to the terms and subject to the conditions of this
Agreement, make each FF Revolving Loan to be made by it on such day
available to the Borrower in French Francs at the Disbursing Bank, to
the account of the Agent with the Disbursing Bank. The amount so
received by the Disbursing Bank shall, subject to the terms and
conditions of this Agreement and upon instruction from the Agent to
the Disbursing Bank on or before 10:00 A.M. on the date of such
Advance, be made available to the Borrower by delivery of the proceeds
thereof to the Borrower's account with the Disbursing Bank.
(e) The Borrower shall have the option to elect the duration
of the initial and any subsequent Interest Periods and to convert the
Revolving Loans in accordance with Section 3.11 hereof. Fixed Rate
Revolving Loans and Base Rate Loans may be outstanding at the same
time, provided, however, there shall not be outstanding at any one
time Fixed Rate Loans and Segments having more than eight (8) Interest
Periods. If the Agent does not receive a notice of election of
duration of an Interest Period or to convert by the time prescribed
hereby and by Section 3.11 hereof, the Borrower shall be deemed to
have elected (i) with respect to any Dollar Loan, to Convert to or
Continue such Dollar Loan as a Base Rate Loan or (ii) with respect to
any FF Revolving Loan, to Continue such FF Revolving Loan with an
Interest Period of one month, in any case until the Borrower otherwise
notifies the Agent in accordance herewith and with Section 3.11
hereof.
(f) Notwithstanding the foregoing, if a drawing is made under
any Letter of Credit prior to the Revolving Credit Termination Date,
notice of such drawing and resulting Reimbursement Obligation shall be
provided promptly by Issuing Bank to the Agent and the Agent shall
provide notice to each Lender and the Borrower by telephone. If such
notice to the Lenders of a drawing under any Letter of Credit is given
by the Agent at or before 1:00 p.m. on any Business Day, the Borrower
shall be deemed to have requested, and each Lender shall, pursuant to
the conditions of this Agreement, make, an Advance in Dollars as a
Base Rate Loan under the Revolving Credit Facility in the amount of
such Lender's Applicable Commitment Percentage of such Reimbursement
Obligation and shall pay such amount to the Agent for the account of
Issuing Bank at the Principal Office in Dollars and in immediately
available funds before 2:30 P.M. on the same Business Day. If notice
to the Lenders is given by the Agent after 1:00 P.M. on any Business
Day, the Borrower shall be deemed to have requested, and each Lender
shall, pursuant to the terms and subject to the conditions of this
Agreement, make, an Advance in Dollars as a Base Rate Loan under the
Revolving Credit Facility in the amount of such Lender's Applicable
Commitment Percentage of such Reimbursement Obligation and shall pay
such amount to the Agent for the account of Issuing Bank at the
Principal Office in Dollars and in immediately available funds before
12:00 noon on the next following Business Day. Such Base Rate Loan
shall continue unless and until the Borrower converts such Base Rate
Loan in accordance with the terms of Section 3.11 hereof.
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SECTION 3.3 PAYMENT OF INTEREST.
(a) The Borrower shall pay interest to the Agent at the
Principal Office for the account of each Lender on the outstanding and
unpaid principal amount of each Revolving Loan made by such Lender for
the period commencing on the date of such Revolving Loan until (but
not including) the end of the applicable Interest Period or the date
such Revolving Loan shall be due (i) in the case of Dollar Loans, at
the Eurodollar Rate or the Base Rate, as elected by the Borrower in
the applicable Borrowing Notice of Interest Rate Selection notice or
as deemed elected by the Borrower or otherwise applicable to such
Revolving Loan as provided herein, such payment to be made in Dollars,
and (ii) in the case of FF Revolving Loans, at the applicable FF LIBOR
Rate, such payments to be made in French Francs; provided, however,
that if any amount shall not be paid when due (at maturity, by
acceleration or otherwise) or if any other Event of Default shall have
occurred and be continuing hereunder, all amounts outstanding
hereunder shall bear interest thereafter at the Default Rate from the
date such Event of Default occurred until the date such Event of
Default is cured or waived.
(b) Interest on the outstanding principal balance of each
Revolving Loan shall be computed on the basis of a year of 360 days
and calculated for the actual number of days elapsed. Interest on each
Revolving Loan shall be paid (i) with respect to Base Rate Loans,
quarterly in arrears on the last Business Day of each March, June,
September and December commencing March 1998, (ii) with respect to
Fixed Rate Revolving Loans, on the last day of the applicable Interest
Period for each Fixed Rate Revolving Loan and for any Fixed Rate
Revolving Loan having an Interest Period extending beyond three (3)
months, also on the date occurring every three (3) months after the
commencement of such Interest Period, and (iii) upon payment in full
of the principal amount of such Revolving Loan.
SECTION 3.4 PAYMENT OF PRINCIPAL.
(a) The principal amount of all Revolving Credit Outstandings
shall be due and payable to the Agent for the benefit of each Lender
in full on the Revolving Credit Termination Date, or as otherwise
expressly provided herein, in the Applicable Currency in which such
amount was borrowed. The principal amount of Base Rate Loans may be
prepaid in whole or in part at any time without premium or penalty.
The principal amount of Fixed Rate Revolving Loans may only be prepaid
at the end of the applicable Interest Period, unless the Borrower
shall pay to the Agent for the account of the Lenders the amount, if
any, required under Section 5.5 hereof.
(b) In the event any payment of principal is made prior to
the Revolving Credit Termination Date, an Authorized Representative
shall give the Agent irrevocable telephonic notice of any payment of a
Fixed Rate Revolving Loan prior to 10:30 A.M. at least three (3)
Business Days prior to the date such payment is to be made and of any
payment of a Base Rate Loan prior to 10:30 A.M. on the day such
payment is to be made.
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Written confirmation of each notice shall be provided to the Agent in
accordance with the terms therefor set forth in Section 3.2(a) hereof
with respect to Advances and the selection of interest rates. Such
notice shall specify (a) the date the payment will be made, (B) the
amount of such repayment and (C) the Loan to which such payment
relates. All prepayments made by the Borrower shall be in the minimum
amount of $500,000 (or the FF Equivalent Amount with respect to FF
Revolving Loans) or an integral multiple of $50,000 (or the FF
Equivalent Amount with respect to FF Revolving Loans) in excess
thereof, or such other amount as necessary to comply with this Section
3.4 or with the covenants set forth in Article XI hereof or the
remaining principal amount outstanding, if less than such amounts.
SECTION 3.5 MANNER OF PAYMENT.
(a) Each payment of principal (including any mandatory or
optional prepayment), interest and fees, and other amounts required to
be paid to the Lenders with respect to the Revolving Loans, shall be
made to the Agent at the Principal Office, for the account of each
Lender's applicable Lending Office, in Dollars in the case of Dollar
Loans and in French Francs in the case of FF Revolving Loans, in
immediately available funds without setoff, deduction or counterclaim
before 2:30 P.M. on the date such payment is due. The Agent may, but
shall not be obligated to, debit the Dollar Value of any such payment
which is not made by such time from any one or more ordinary deposit
accounts, if any, of the Borrower with the Agent.
(b) The Agent shall deem any payment by or on behalf of the
Borrower hereunder that is not made (i) in Dollars in the case of
Dollar Loans and in French Francs in the case of FF Revolving Loans,
(ii) in immediately available funds and (iii) prior to 2:30 P.M. on
the date payment is due to be a non-conforming payment. Any such
non-conforming payment shall not be deemed to be received by the Agent
until the time such funds are paid in the Applicable Currency and
become available funds. Any non-conforming payment which conforms to
clauses (i) and (ii) above shall be deemed received by the Agent on
the next Business Day. Any non-conforming payment may constitute or
become a Default or Event of Default. The Agent shall give prompt
notice to the Authorized Representative and each of the Lenders
(confirmed in writing) if any payment (other than a prepayment) is
non-conforming. Interest shall continue to accrue on any principal as
to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of
such payment to the next succeeding Business Day) at the Default Rate
after the occurrence and during the continuance of an Event of Default
(other than with respect to non-conforming prepayments, with respect
to which interest shall continue to accrue on any principal as to
which such non-conforming payment is made until such funds become
available funds at the Base Rate, the Eurodollar Rate, or the FF LIBOR
Rate as applicable) from the date such amount was due and payable
until the date such amount is paid in full.
(c) In the event that any payment hereunder or under the
Revolving Notes becomes due and payable on a day other than a Business
Day, then such due date shall be
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extended to the next succeeding Business Day unless provided otherwise
under clause (B) of the definition of "Interest Period;" provided that
interest shall continue to accrue during the period of any such
extension; and provided further, however, that in no event shall any
such due date be extended beyond the Revolving Credit Termination
Date.
SECTION 3.6 COMMITMENT REDUCTIONS.
(a) Voluntary Commitment Reductions. The Borrower shall have
the right from time to time (but not more frequently than once during
any fiscal quarter of the Borrower), upon not less than five (5)
Business Days written notice from an Authorized Representative to the
Agent, to reduce the Revolving Credit Commitment. The Agent shall give
each Lender, within one (1) Business Day, telephonic notice (confirmed
in writing) of any such reduction. Each such reduction shall be in the
amount of $2,000,000 (or the FF Equivalent Amount with respect to FF
Revolving Loans) or an integral multiple of $500,000 (or the FF
Equivalent Amount with respect to FF Revolving Loans) in excess
thereof and shall permanently reduce the Total Revolving Credit
Commitment and the Revolving Credit Commitment of each Lender pro
rata. No such reduction shall be permitted that results in the payment
of any Fixed Rate Revolving Loan other than on the last day of the
Interest Period of such Loan unless such prepayment is accompanied by
amounts due, if any, under Section 5.5 hereof. Each reduction of the
Revolving Credit Commitment shall be accompanied by payment of the
principal amount of the Revolving Credit Outstandings to the extent
that the sum of the Dollar Value all Revolving Credit Outstandings and
Letter of Credit Outstandings exceeds the Total Revolving Credit
Commitment after giving effect to such reduction, together with
accrued and unpaid interest on the amounts prepaid.
(b) Mandatory Commitment Reductions. In addition to any
optional reduction of the Revolving Credit Commitments effected under
Section 3.6(a) hereof, the Borrower shall make the following required
reductions,:
(i) In the event the Bolle Australia Acquisition has
not been consummated on or before June 30, 1998, the Total
Revolving Credit Commitment shall be permanently reduced by
the Dollar equivalent amount of A$5,687,500 on such date
determined by the spot rate of exchange for Australian
Dollars as established by the Agent in accordance with its
customary practices.
(ii) In addition to the foregoing, in the event the
Bolle UK Acquisition has not been consummated on or before
June 30, 1998, the Total Revolving Credit Commitment shall be
permanently reduced by the Dollar equivalent amount of
Li.1,000,000 on such date determined by the spot rate of
exchange for pounds sterling as established by the Agent in
accordance with its customary practices.
(iii) In the event that the Term Loan Outstandings
are paid in full, any mandatory prepayment required under
Section 2.7 shall be applied as a mandatory reduction of the
Total Revolving Credit Commitment hereunder.
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Each of the foregoing reductions shall permanently reduce the Total
Revolving Credit Commitment and the Revolving Credit Commitment of
each Lender pro rata. No such reduction shall be permitted that
results in the payment of any Fixed Rate Revolving Loan other than on
the last day of the Interest Period of such Loan unless such
prepayment is accompanied by amounts due, if any, under Section 5.5
hereof. Each reduction of the Revolving Credit Commitment shall be
accompanied by payment of the principal amount of the Revolving Credit
Outstandings to the extent that the sum of the Dollar Value all
Revolving Credit Outstandings and Letter of Credit Outstandings
exceeds the Total Revolving Credit Commitment after giving effect to
such reduction, together with accrued and unpaid interest on the
amounts prepaid.
(c) Termination by Commitment Reduction. A reduction of the
Total Revolving Credit Commitment to zero and payment by the Borrower
of all Obligations (including the payment of all Term Loan
Outstandings and the discharge of all obligations of Issuing Bank and
the Lenders with respect to Letters of Credit and Participations)
shall, subject to the terms and conditions of Section 15.7 hereof, be
deemed a cancellation and termination of this Agreement (other than
with respect to Sections 4.2(g), 9.14, 13.7, 15.4 and 15.8 hereof,
which shall survive any such termination).
SECTION 3.7 INCREASE AND DECREASE IN AMOUNTS. The amount of the
Revolving Credit Commitment which shall be available to the Borrower shall be
reduced by the aggregate amount of all Revolving Credit Outstandings and Letter
of Credit Outstandings and shall be reinstated (subject to Sections 3.4 and 3.6
hereof) as such Revolving Credit Outstandings and Letter of Credit Outstandings
are reduced.
SECTION 3.8 BORROWER'S ACCOUNT. The Borrower shall continuously
maintain the Borrower's Account until the Revolving Credit Termination Date.
SECTION 3.9 NOTES. Revolving Loans made by each Lender shall be
evidenced by a Revolving Note payable to the order of such Lender in the amount
of its Applicable Commitment Percentage of the Total Revolving Credit
Commitment, which Revolving Notes shall be dated the Closing Date or such later
date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
SECTION 3.10 PRO RATA PAYMENTS. Except as otherwise provided herein,
each payment and prepayment on account of the principal of and interest on the
Revolving Loans and the fees described in Section 3.12 hereof shall be made to
the Agent for the account of the Lenders in the aggregate amount payable to the
Lenders pro rata based on their Applicable Commitment Percentages. All payments
to be made by the Borrower for the account of each of the Lenders on account of
principal, interest and fees shall be made without set-off or counterclaim. The
Agent will promptly distribute such payments received to the Lenders as
provided for herein.
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SECTION 3.11 CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS.
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(a) Upon irrevocable telephonic request, confirmed by
same-day delivery of a properly completed Interest Rate Selection
Notice by telefacsimile transmission to the Agent (or by execution and
return of a confirmatory writing prepared by the Agent), on or before
10:30 A.M. on any Business Day, the Borrower may convert all or a part
of Eurodollar Rate Loans to Base Rate Loans on the last day of the
Interest Period for such Eurodollar Rate Loans; and
(b) Provided that no Default or Event of Default shall have
occurred and be continuing, the Borrower may upon irrevocable
telephonic request, confirmed by same-day delivery of a properly
completed Interest Rate Selection Notice by telefacsimile transmission
to the Agent (or by execution and return of a confirmatory writing
prepared by the Agent), on or before 10:30 A.M. on the date that is
three (3) Business Days prior to the date of a conversion:
(i) elect a subsequent Interest Period for all or a portion
of Fixed Rate Revolving Loans to begin on the last day of the current
Interest Period for such Fixed Rate Revolving Loans; or
(ii) convert Base Rate Loans to Eurodollar Rate Loans on any
Business Day.
Each election and conversion pursuant to this Section 3.11 shall be
subject to the limitations on Eurodollar Rate Loans and FF LIBOR Rate Loans set
forth in the definition of "Interest Period" herein and in Sections 3.1, 3.2
and Article V hereof. All such Continuations or Conversions of Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the
Lenders. The failure of the Borrower to provide written confirmation of any
telephonic notice of election or conversion hereunder shall not affect the
validity of such telephonic notice.
SECTION 3.12 UNUSED FEE. For the period beginning on the Closing Date
and ending on the Revolving Credit Termination Date, the Borrower agrees to pay
to the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a quarterly unused fee (the "Unused Fee") equal in
amount to the product of the Applicable Unused Fee multiplied by the average
daily amount by which Total Revolving Credit Commitment exceeds the sum of the
Dollar Value of all Revolving Credit Outstandings and all Letter of Credit
Outstandings for such period. Payments of the Unused Fee shall be due in
arrears on the last Business Day of each March, June, September and December
for the three month period then ended beginning March 1998 to and on the
Revolving Credit Termination Date. Notwithstanding the foregoing, so long as
any Lender fails to make available any portion of its Revolving Credit
Commitment when requested, such Lender shall not be entitled to receive payment
of its pro rata share of the Unused Fee until such Lender shall make available
such portion. The Unused Fee shall be calculated on the basis of a year of 360
days for the actual number of days elapsed.
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SECTION 3.13 ADDITIONAL FEES. In addition to any fees described above,
the Borrower agrees to pay to the Agent and Issuing Bank such other fees as may
be agreed to in a separate writing or writings.
SECTION 3.14 DEFICIENCY ADVANCES. No Lender shall be responsible for
any default of any other Lender (a "defaulting Lender") in respect of such
other Lender's obligation to make any Loan hereunder nor shall the Revolving
Credit Commitment of any Lender hereunder be increased as a result of such
default of any other Lender. Without limiting the generality of the foregoing,
in the event any Lender shall fail to advance funds to the Borrower as herein
provided, any other Lender (an "advancing Lender") may in its discretion, but
shall not be obligated to, advance under its Revolving Credit Commitment all or
any portion of such amount or amounts (each, a "deficiency advance") and shall
thereafter be entitled to payments of principal of and interest on such
deficiency advance in the same manner and at the same interest rate or rates to
which such defaulting Lender would have been entitled had it made such advance
under its applicable Revolving Credit Commitment; provided that, upon payment
to the advancing Lender from the defaulting Lender of the entire outstanding
amount of each such deficiency advance, together with accrued and unpaid
interest thereon, from the most recent date or dates interest was paid to the
advancing Lender by the Borrower on each Loan comprising the deficiency advance
at the interest rate per annum for overnight borrowing by the advancing Lender
from the Federal Reserve Bank, then such payment shall be credited against the
applicable Revolving Credit Commitment of the advancing Lender in full payment
of such deficiency advance and the Borrower shall be deemed to have borrowed
the amount of such deficiency advance from the defaulting Lender as of the most
recent date or dates, as the case may be, upon which any payments of interest
were made by the Borrower thereon.
SECTION 3.15 USE OF PROCEEDS. The Revolving Credit Facility shall be
used by the Borrower (i) for working capital, (ii) to finance capital
expenditures (excluding Acquisitions) permitted hereunder, (iii) to finance the
Bolle Australia Acquisition and the Bolle UK Acquisition, (iv) to refinance
Existing Indebtedness other than the FG Mortgage and (v) for other lawful
general corporate purposes (excluding Acquisitions).
ARTICLE IV
LETTERS OF CREDIT
SECTION 4.1 LETTERS OF CREDIT. Issuing Bank agrees, subject to the
terms and conditions of this Agreement, upon request and for the account of
Borrower, to issue from time to time Letters of Credit upon delivery to Issuing
Bank of an Application and Agreement for Letter of Credit in form and content
reasonably acceptable to Issuing Bank; provided, that the Letter of Credit
Outstandings shall not exceed the Total Letter of Credit Commitment. No Letter
of Credit shall be issued by Issuing Bank with an expiry date or payment date
occurring subsequent to the fifth Business Day preceding the Revolving Credit
Termination Date. Issuing Bank shall not be required to issue any Letter of
Credit if, immediately after giving effect thereto, the sum of all Revolving
Credit Outstandings and Letter of Credit Outstandings would exceed the
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Total Revolving Credit Commitment; provided that the Letters of Credit
previously issued may remain outstanding until their respective expiry dates.
SECTION 4.2 REIMBURSEMENT.
(a) The Borrower hereby unconditionally agrees immediately to
pay to Issuing Bank on demand at the Principal Office all amounts
required to pay all drafts drawn and honored under Letters of Credit
and all reasonable expenses incurred by Issuing Bank in connection
with Letters of Credit and in any event and without demand to place in
possession of Issuing Bank sufficient funds to pay all debts and
liabilities arising under any Letter of Credit; provided that to the
extent permitted by Section 3.2(f) hereof, such amounts shall be paid
pursuant to Advances under the Revolving Credit Facility. The
Borrower's obligation to pay Issuing Bank under this Section 4.2, and
Issuing Bank's right to receive such payment, shall be absolute and
unconditional and shall not be affected by any circumstance
whatsoever, including without limitation the unavailability of any
Advance under the Revolving Credit Facility. Issuing Bank shall give
the Borrower prompt written notice of any request for a draw under a
Letter of Credit. In the event an Advance under the Revolving Credit
Facility is not available, Issuing Bank may charge any account the
Borrower may have with it for any and all amounts Issuing Bank pays
under a Letter of Credit, plus charges and reasonable expenses as from
time to time agreed to by Issuing Bank and the Borrower. The Borrower
agrees to pay Issuing Bank interest on any amounts paid by the Issuing
Bank in connection with drafts drawn and honored under Letters of
Credit when due hereunder, and which is not paid pursuant to Advances
under the Revolving Credit Facility as herein contemplated, at the
Default Rate from the date of such drawing to the date such amount is
paid in full.
(b) In accordance with the provisions of Section 3.2 hereof,
Issuing Bank shall notify the Agent and the Borrower of any drawing
under any Letter of Credit as promptly as practicable following the
receipt by Issuing Bank of such drawing.
(c) Each Lender (other than Issuing Bank) shall automatically
acquire on the date of issuance thereof a Participation in the
liability of Issuing Bank in respect of each Letter of Credit in an
amount equal to such Lender's Applicable Commitment Percentage of such
liability, and to the extent that the Borrower is obligated to pay
Issuing Bank under Section 4.2(a) hereof, each Lender (other than
Issuing Bank) thereby shall, as hereinafter described, absolutely,
unconditionally and irrevocably assume, and shall be unconditionally
obligated to pay to Issuing Bank, its Applicable Commitment Percentage
of the liability of Issuing Bank under such Letter of Credit.
(i) Prior to the Revolving Credit Termination Date,
each Lender (other than Issuing Bank) shall, subject to the
terms and conditions of Article III, make a Revolving Loan
bearing interest at the Base Rate to the Borrower by paying
to the Agent for the account of Issuing Bank at the Principal
Office in Dollars and in immediately available funds an
amount equal to its Applicable
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Commitment Percentage of any Reimbursement Obligation, all as
described in and pursuant to Section 3.2(f).
(ii) With respect to drawings under any Letter of
Credit for which a Revolving Loan is not made as set forth in
clause (i) above, each Lender (other than Issuing Bank) upon
receipt from the Agent of notice of a drawing in the manner
described in Section 3.2(f), shall promptly pay to the Agent
for the account of Issuing Bank, prior to the applicable time
set forth in Section 3.2(f) for the making of an Advance by
such Lender, its Applicable Commitment Percentage of such
drawing. Simultaneously with the making of each such payment
by a Lender to the Agent for the account of Issuing Bank,
such Lender shall, automatically and without any further
action on the part of Issuing Bank or such Lender, acquire a
Participation in an amount equal to such payment (excluding
the portion thereof constituting interest) in the related
Reimbursement Obligation of the Borrower.
(iii) Each Lender's obligation to make payment to
the Agent for the account of Issuing Bank pursuant to this
Section 4.2(c), and the right of Issuing Bank to receive the
same, shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Lender is
obligated to pay but does not pay amounts to the Agent for
the account of the Issuing Bank in full upon such request as
required by this Section 4.2(c), such Lender shall, on
demand, pay to the Agent for the account of Issuing Bank
interest on the unpaid amount for each day during the period
commencing on the date of notice given to such Lender
pursuant to Section 4.2(c) hereof until such Lender pays such
amount to the Agent for the account of Issuing Bank in full
at the interest rate per annum for overnight borrowings by
Issuing Bank from the Federal Reserve Bank.
(iv) In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set forth
in clause (ii) above, then at any time payment of such
Reimbursement Obligation, in whole or in part, is received by
Issuing Bank from the Borrower, Issuing Bank shall pay to
each Lender an amount equal to its Applicable Commitment
Percentage of such payment from the Borrower.
(d) Promptly following the end of each calendar month,
Issuing Bank shall deliver to the Agent, and the Agent shall deliver
to each Lender, a notice describing the aggregate undrawn amount of
all Letters of Credit at the end of such month. Upon the request of
any Lender from time to time, Issuing Bank shall deliver to the Agent,
and the Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to Letter of Credit
Outstandings.
(e) The issuance by Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section
7.3 hereof, be subject to the conditions that such Letter of Credit be
in such form and contain such terms as shall be reasonably
satisfactory to Issuing Bank consistent with the then current
practices and procedures of
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Issuing Bank with respect to similar letters of credit, and the
Borrower shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as Issuing Bank shall
have reasonably requested consistent with such practices and
procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits,
1993 revision, International Chamber of Commerce Publication No. 500
and all subsequent amendments and revisions thereto.
(f) The Borrower agrees that Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter
of Credit, any drafts or other documents otherwise in order which may
be signed or issued by an administrator, executor, trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors, liquidator, receiver, attorney in fact or other legal
representative of a party who is authorized under such Letter of
Credit to draw or issue any drafts or other documents.
(g) Without duplication of Section 15.8 hereof, the Borrower
hereby agrees to defend, indemnify and hold harmless Issuing Bank,
each other Lender and the Agent from and against any and all claims
and damages, losses, liabilities, reasonable costs and expenses which
Issuing Bank, such other Lender or the Agent may incur (or which may
be claimed against Issuing Bank, such other Lender or the Agent) by
any Person by reason of or in connection with the issuance or transfer
of or payment or failure to pay under any Letter of Credit; provided
that the Borrower shall not be required to indemnify Issuing Bank, any
other Lender or the Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent,
caused by the willful misconduct or gross negligence of the party to
be indemnified. The provisions of this Section 4.2(g) shall survive
the Facility Termination Date.
(h) Without limiting Borrower's rights as set forth in
Section 4.2(g) above, the obligation of the Borrower to immediately
reimburse the Agent for drawings made under Letters of Credit shall be
absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement and such
Letters of Credit and the related Applications and Agreements for
Letters of Credit, notwithstanding the following circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, the obligation supported by the Letter of Credit or any other
agreement or instrument relating thereto (collectively, the "Related
Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense or other
rights which the Borrower may have at any time against any beneficiary
or any transferee of a Letter of Credit (or any Persons for whom any
such beneficiary or any such transferee may be acting), Agent, Lenders
or any other Person, whether in
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connection with the Loan Documents, the Related Documents or
any unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a
Letter of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), Agent,
Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect whatsoever; or
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by Agent, with or without notice to or approval by
the Borrower in respect of any of Borrower's Obligations
under this Agreement.
SECTION 4.3 LETTER OF CREDIT FEE. The Borrower agrees to pay to the
Agent, (a) for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, quarterly in arrears on the last Business Day of each
March, June, September and December, beginning March 1998, a fee (i) for each
Standby Letter of Credit, equal to the product of the average daily amount
available to be drawn on such Letter of Credit during such three month period
multiplied by the Applicable Margin and (ii) for each Commercial Letter of
Credit, equal to the product of the stated amount of such Commercial Letter of
Credit outstanding during any portion of such three month period multiplied by
the Applicable Margin, and (b) for the Issuing Bank, 0.125% per annum based on
the aggregate amount available to be drawn on each outstanding Letter of
Credit. Such fees shall be calculated on the basis of a year of 360 days for
the actual number of days during which Letters of Credit are outstanding.
SECTION 4.4 ADMINISTRATIVE FEES. The Borrower shall pay to Issuing
Bank such administrative fee and other fees, if any, in connection with the
Letters of Credit in such amounts and at such times as Issuing Bank and the
Borrower shall agree from time to time.
ARTICLE V
CHANGE IN CIRCUMSTANCES
SECTION 5.1 INCREASED COST AND REDUCED RETURN.
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(a) If, after the date hereof, any Lender shall have determined in
good faith that the adoption of any applicable law, rule, or regulation, or any
change in any applicable law, rule, or regulation, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office) with
any request or
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directive (whether or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with
respect to any Fixed Rate Loans, its Note, or its obligation
to make Fixed Rate Loans, or change the basis of taxation of
any amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or its Note in respect of any
Fixed Rate Loans (other than franchise taxes and taxes
imposed on the overall income of such Lender by the
jurisdiction in which such Lender has its principal office or
such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate or the FF LIBOR Rate)
relating to any extensions of credit or other assets of, or
any deposits with or other liabilities or commitments of,
such Lender (or its Applicable Lending Office), including the
Revolving Credit Commitment and Term Loan Commitment of such
Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting this Agreement or its Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Fixed Rate Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Agreement or its Note
with respect to any Fixed Rate Loans, then the Borrower shall pay to such
Lender on demand such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 5.1(a) the Borrower may, by notice to such Lender
(with a copy to the Agent), suspend the obligation of such Lender to make or
Continue Loans of the Type with respect to which such compensation is
requested, or to Convert Loans of any other Type into Loans of such Type, until
the event or condition giving rise to such request ceases to be in effect (in
which case the provisions of Section 5.4 shall be applicable); provided that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any Governmental Authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
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directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender on an
after-tax basis for such reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent in
writing of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this Section
5.1 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
it. Any Lender claiming compensation under this Section 5.1 shall furnish to
the Borrower and the Agent a statement setting forth the additional amount or
amounts to be paid to it hereunder which shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
SECTION 5.2 LIMITATION ON TYPES OF LOANS. If on or prior to the first
day of any Interest Period for any Fixed Rate Loan:
(a) the Agent reasonably determines (which determination
shall be conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Interbank Offered Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate or FF
LIBOR Rate will not adequately and fairly reflect the cost to the
Lenders of funding such Fixed Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt written notice thereof specifying
the relevant Type of Loans and the relevant amounts or periods, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make additional Loans of such Type, Continue Loans of such Type, or to Convert
Loans of any other Type into Loans of such Type and the Borrower shall, on the
last day of the then current Interest Period for each outstanding Loan of the
affected Type, (i) with respect to FF LIBOR Rate Loans, repay such Loan and
(ii) with respect to Eurodollar Rate Loans, either prepay such Loan or Convert
such Loan into another Type of Loan in accordance with the terms of this
Agreement.
SECTION 5.3 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund any Fixed Rate Loans
hereunder, then such Lender shall promptly notify the Borrower thereof and (a)
such Lender's obligation to make or Continue Eurodollar Rate Loans and to
Convert other Types of Loans into Eurodollar Rate Loans shall be terminated
until such time as such Lender may again make, maintain, and fund Eurodollar
Rate Loans (in which case the provisions of Section 5.4 shall be applicable)
and (b) such Lender's obligation to make or Continue FF LIBOR Rate Loans shall
be suspended and the Borrower shall repay to such Lender all outstanding FF
LIBOR Rate Loans owed to such Lender, together with interest accrued thereon
and amounts required under Section 5.5 hereof, either on the last day of the
Interest
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Period thereof, if such Lender may lawfully continue to maintain such FF LIBOR
Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such FF LIBOR Rate Loans.
SECTION 5.4 TREATMENT OF AFFECTED LOANS. If the obligation of any
Lender to make a Eurodollar Rate Loan or to Continue, or to Convert Loans of
any other Type into, Eurodollar Rate Loans shall be suspended pursuant to
Section 5.1 or 5.3 hereof (Loans of such Type being herein called "Affected
Loans" and such Type being herein called the "Affected Type"), such Lender's
Affected Loans shall be automatically Converted into Base Rate Loans on the
last day(s) of the then current Interest Period(s) for Affected Loans (or, in
the case of a Conversion required by Section 5.3 hereof, on such earlier date
as such Lender may specify in writing to the Borrower with a copy to the Agent)
and, unless and until such Lender gives written notice as provided below that
the circumstances specified in Section 5.1 or 5.3 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 5.1 or 5.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 5.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.
SECTION 5.5 COMPENSATION. Upon the request of any Lender, the Borrower
shall pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Fixed Rate
Loan for any reason (including, without limitation, the acceleration
of the Loans pursuant to Section 12.1) on a date other than the last
day of the Interest Period for such Loan; or
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(b) any failure by a Borrower for any reason (including,
without limitation, the failure of any condition precedent specified
in Article VII to be satisfied) to borrow, Convert, Continue, or
prepay a Fixed Rate Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this
Agreement.
SECTION 5.6 TAXES. (a) Any and all payments by the Borrower to or for
the account of any Lender or the Agent hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender (or its
Applicable Lending Office) or the Agent (as the case may be) is organized or
any political subdivision thereof, other than to the extent such income or
franchise tax is imposed solely as a result of the activities of the Agent or a
Lender pursuant to or in respect of this Agreement or any of the other Loan
Documents (all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"Taxes"). If a Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable under this Agreement or any other Loan Document to
any Lender or the Agent, (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 5.6) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions, (iii) such
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, and (iv) such Borrower
shall furnish to the Agent, at its address referred to in Section 15.1, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this
Agreement or any other Loan Document or from the execution or delivery of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 5.6) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and
on or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the
Borrower or the Agent (but only so long as such Lender remains lawfully able to
do so), shall provide the Borrower and the Agent with (i) Internal Revenue
Service Form 1001 or 4224, as
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appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which eliminates withholding tax on
payments of interest or certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
and (iii) any other form or certificate required by any taxing authority
(including any certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is entitled to an exemption
from tax on payments pursuant to this Agreement or any of the other Loan
Documents.
(e) For any period with respect to which a Lender has failed to
provide the Borrower and the Agent with the appropriate form pursuant to
Section 5.6(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to indemnification
under Section 5.6(a) or 5.6(b) with respect to Taxes imposed by the United
States; provided, however, that should a Lender, which is otherwise exempt from
or subject to a reduced rate of withholding tax, become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender shall reasonably request to assist such Lender
to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 5.6, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its Applicable
Lending Office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes,
the applicable Borrower shall furnish to the Agent the original or a certified
copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 5.6 shall survive the Facility Termination Date.
ARTICLE VI
SECURITY
SECTION 6.1 SECURITY INTEREST. As security for the full and timely
payment and performance of all Obligations and as a continuation of the
security interests and rights granted under the Existing Credit Agreement and
the Security Instruments (as defined therein), the Borrower shall, and shall
cause each Domestic Subsidiary to, on or before the Closing Date deliver to the
Agent, in form and substance reasonably acceptable to the Agent, the Security
Agreement, the Intellectual Property Security Agreements, the Landlord Waivers,
the Lease
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Assignments, the Intellectual Property Assignments, the Collateral Assignment
of Option Agreement, the Intercompany Note Assignment, and such duly executed
and filed Uniform Commercial Code financing statements sufficient to grant to
the Agent a valid, duly perfected security interest in the Collateral described
therein, subject to no prior Liens other than Permitted Liens, and do all
things necessary in the opinion of the Agent and its counsel to grant and
continue to the Agent for the benefit of the Lenders a first priority security
interest, duly perfected with respect to Collateral governed by the UCC, in all
Collateral subject to no prior Lien or other encumbrance or restriction on
transfer (other than restrictions on transfer imposed by applicable securities
laws and Permitted Liens).
The foregoing security shall continue to ratably secure the Senior
Credit Facilities and all Swap Agreements, subject to certain restrictions
contained herein.
SECTION 6.2 STOCK PLEDGE. (a) As security for the full and timely
payment and performance of all Obligations now existing or hereafter arising,
and certain Guarantors' obligations under the Guaranty and as a continuation of
the security interests and rights granted under the Existing Credit Agreement
and the Stock Pledge Agreement (as defined therein), the Borrower and each
Domestic Subsidiary owning any Pledged Stock shall on or before the Closing
Date deliver to the Agent, in form and substance reasonably acceptable to the
Agent, the Stock Pledge Agreement together with certificates representing such
Pledged Stock and such stock powers duly executed in blank as may be required
by the Agent in accordance with the terms hereof and thereof. In addition to
any Stock Pledge Agreement required to be delivered pursuant to Section 9.21
hereof, the Borrower and Subsidiary hereby agree to pledge to the Agent for the
benefit of the Lenders (i) 100% of the capital stock and related interests and
rights directly or indirectly owned by the Borrower of any Domestic Subsidiary
or Domestic Control Subsidiary hereafter acquired or created, (ii) 65% of the
Voting Stock and 100% of the non-voting common stock and related interests and
rights directly or indirectly owned by the Borrower of any Direct Foreign
Subsidiary or Direct Foreign Control Subsidiary hereafter acquired or created
and (iii) 100% of the capital stock and related interests and rights directly
or indirectly owned by the Borrower of any Foreign Subsidiary or Foreign
Control Subsidiary to the extent such action would not result in any material
adverse tax impact on the Borrower and, in each case, to deliver to the Agent a
Stock Pledge Agreement substantially in the form of Exhibit G hereto within
thirty (30) days of the acquisition or creation of such Subsidiary.
The foregoing security shall continue to ratably secure the Senior
Credit Facilities and all Swap Agreements, subject to certain restrictions
contained herein.
SECTION 6.3 GUARANTY. To guarantee the full and timely payment and
performance of all Obligations now existing or hereafter arising, the Borrower
shall cause the Guaranty to be delivered by each Domestic Subsidiary, in form
and substance reasonably acceptable to the Agent, on or before the Closing
Date. The Borrower hereby agrees to cause a Guaranty to be delivered by any
hereafter acquired, created or arising (i) Domestic Subsidiary and (ii) Foreign
Subsidiary to the extent such action would not result in any material adverse
tax impact on the Borrower.
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SECTION 6.4 LEASE ASSIGNMENTS. As security for the full and timely
payment and performance of (a) all Obligations now existing or hereafter
arising, and (b) the Guarantors' obligations under the Guaranty, the Borrower
and each Domestic Subsidiary shall deliver to the Agent, in form and substance
reasonably acceptable to the Agent, the Lease Assignments. The Lease
Assignments shall be delivered on or before the Closing Date and thereafter as
any material leased facility arises.
SECTION 6.5 INTELLECTUAL PROPERTY. The Borrower and each Domestic
Subsidiary owning any material patents, patent applications, trademarks,
trademark registrations and applications therefor, copyrights, copyright
registrations and applications therefore or any other material intellectual
property, shall deliver to the Agent for the benefit of the Lenders the
Intellectual Property Security Agreements and the Intellectual Property
Assignments and opinions of counsel to the Borrower in France as to the
validity and enforceability of the License Agreement and the absence of any
material tax, fee or other restriction on the licensing of the intellectual
property subject to the License Agreement, in form and substance acceptable to
the Agent and the Lenders. In addition to any Intellectual Property Security
Agreement required to be delivered pursuant to Section 9.21 hereof, the
Borrower hereby agrees to pledge, or cause to be pledged, all intellectual
property interests and licenses hereafter acquired or created and owned by the
Borrower or any applicable Domestic Subsidiary within thirty (30) days of the
acquisition or creation of such intellectual property or license.
SECTION 6.6 DEED OF TRUST. As security for the full and timely payment
and performance of all Obligations now existing or hereafter arising, upon the
request of the Agent after reasonable determination of the need for additional
Collateral hereunder, the Borrower shall cause a Deed of Trust to be executed
and delivered to the Agent with respect to any material real property now
existing or hereafter acquired by the Borrower or any Material Subsidiary, in
form and substance reasonably acceptable to the Agent, and accompanied by
environmental reports, title insurance and other certificates and documents
reasonably requested by the Agent.
SECTION 6.7 INTERCOMPANY NOTE ASSIGNMENT. The Borrower shall deliver
the Intercompany Note Assignment to the Agent for the benefit of the Lenders.
The Borrower hereby agrees to assign, or cause to be assigned, to the Agent for
the benefit of the Lenders all Intercompany Notes created or existing on or
after the Closing Date pursuant to the Intercompany Note Assignment or a
supplement or amendment thereto.
SECTION 6.8 INFORMATION REGARDING COLLATERAL. The Borrower represents,
warrants and covenants that (a) the chief executive office of the Borrower and
each Guarantor at the Closing Date is located at the address or addresses
specified on Schedule 6.8, and (b) Schedule 6.8 contains a true and complete
list of (i) the legal name and address of the Borrower and each Guarantor and
of each other Person that has effected any merger or consolidation with the
Borrower or a Guarantor or contributed or transferred to the Borrower or a
Guarantor any significant portion of its assets constituting Collateral at any
time since January 1, 1993 (excluding Persons making sales in the ordinary
course of their businesses to the Borrower or a Guarantor of property
constituting inventory in the hands of such seller), (ii)
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each location at which goods constituting Collateral are now located (together
with the name of each owner of the property located at such address if not the
Borrower or the applicable Guarantor, and a summary description of the
relationship between the Borrower or the applicable Guarantor and such Person),
and (iii) each currently used trade style and each trade name used by the
Borrower or any Guarantor since January 1, 1993 and the purposes for which it
was used. Borrower shall not change, and shall not permit any Guarantor to
change, the location of its chief executive office or any location specified in
clause (ii) of the immediately preceding sentence, or use or permit any
Guarantor to use, any additional trade style, except upon giving not less than
thirty (30) days' prior written notice to the Agent and taking or causing to be
taken all such action at Borrower's or such Guarantor's expense as may be
reasonably requested by the Agent to perfect or maintain the perfection of the
Lien of the Agent in Collateral.
SECTION 6.9 FURTHER ASSURANCES. At the request of the Agent, the
Borrower will, and will cause each Subsidiary to, execute by its duly
authorized officers, alone or with the Agent, any certificate, instrument,
statement or document and will procure any such certificate, instrument,
statement or document (and pay all connected costs) which the Agent reasonably
deems necessary to create or preserve the Liens (and the perfection and
priority thereof) of the Agent for the benefit of the Lenders contemplated
hereby and by the other Loan Documents and specifically including all
Collateral acquired by the Borrower or any Guarantor after the Closing Date.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 EFFECTIVENESS; CONDITIONS TO ADVANCES AND ISSUANCE OF
LETTERS OF CREDIT. The effectiveness of this Agreement and the obligation of
the Lenders to make the Term Loan and to make the Advances of the Revolving
Loans and of Issuing Bank to issue the Letters of Credit is subject to the
satisfaction of the following conditions precedent:
(a) the Agent shall have received on or before the Closing
Date, in form and substance satisfactory to the Agent and Lenders, the
following:
(i) executed originals of this Agreement and each of
the other Loan Documents, together with all schedules and
exhibits thereto;
(ii) favorable written opinions of counsel to the
Borrower and the Guarantors dated the Closing Date, addressed
to the Agent and the Lenders and reasonably satisfactory to
Smith Helms Mulliss & Moore, L.L.P., special counsel to the
Agent, substantially in the forms set forth in Exhibit N
attached hereto and incorporated herein by reference;
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(iii) resolutions of the board of directors or other
appropriate governing body (or of the appropriate committee
thereof) of the Borrower, certified by its vice president,
secretary or assistant secretary or other appropriate officer
as of the Closing Date, appointing the initial Authorized
Representative and approving and adopting the Loan Documents
to be executed by such Person, and authorizing the execution,
delivery and performance thereof;
(iv) resolutions of the board of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Guarantor, certified by its secretary,
assistant secretary, vice president or other appropriate
officer as of the Closing Date approving and adopting the
Loan Documents to be executed on behalf of such Guarantor and
authorizing the execution, delivery and performance thereof;
(v) specimen signatures of officers of the Borrower
executing the Loan Documents on behalf of the Borrower,
certified by the secretary, assistant secretary, vice
president or other appropriate officer of the Borrower;
(vi) specimen signatures of officers of each
Guarantor executing the Loan Documents on behalf of such
Guarantor, certified by the secretary, assistant secretary,
vice president or other appropriate officer of such
Guarantor;
(vii) Organizational Documents of the Borrower and
each Guarantor certified as of recent date by the Secretary
of State of its state of organization;
(viii) Operating Documents of the Borrower and each
Guarantor certified as of the Closing Date as true and
correct by its secretary, assistant secretary, vice president
or other appropriate officer of such Person;
(ix) with respect to the Borrower and each
Guarantor, certificates issued as of a recent date by the
Secretary of State or other appropriate Governmental
Authority of its jurisdiction of incorporation as to its due
existence and good standing therein;
(x) with respect to the Borrower and each Guarantor,
appropriate certificates of qualification to do business,
good standing and, where appropriate, authority to conduct
business under assumed name, issued as of a recent date by
the Secretary of State or other appropriate Governmental
Authority of each jurisdiction in which the failure to be
qualified to do business or authorized so to conduct business
would reasonably be expected to result in a Material Adverse
Effect;
(xi) stock certificates representing all of the
shares of Pledged Stock with undated stock powers executed in
blank for each certificate;
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(xii) original Intercompany Notes with undated
endorsements executed in blank for each Intercompany Note;
(xiii) notice of appointment of the initial
Authorized Representative of the Borrower in the form of
Exhibit C hereto;
(xiv) certificate of an Authorized Representative
dated the Closing Date demonstrating compliance with the
financial covenants contained in Article XI hereof, all as of
the immediately preceding Determination Date, substantially
in the form of Exhibit O attached hereto;
(xv) evidence of insurance required by the Loan
Documents other than policies for director and officer
indemnification insurance and immaterial policies issued to
Subsidiaries;
(xvi) Landlord Waivers and Lease Assignments for
each of the Borrower's or any Subsidiary's leased facilities;
(xvii) a copy of the License Agreement certified as
true and correct by an Authorized Representative;
(xviii) financial statements of the Borrower and its
Subsidiaries required to be delivered pursuant to Section 8.6
hereof, pro forma historical financial statements as at and
for the fiscal year ended December 31, 1997 of the Borrower
and its Subsidiaries on a consolidated basis and, to the
extent any Permitted Acquisition has been consummated, giving
effect to such Permitted Acquisition and the transactions
contemplated thereby, and, to the extent any Permitted
Acquisition has been consummated, consolidated pro forma
financial statements and projections of the Borrower and its
Subsidiaries on a consolidated basis for the first complete
Four-Quarter Period following completion and effectiveness of
each of the Bolle Australia Acquisition and the Bolle UK
Acquisition;
(xix) a Borrowing Notice or Interest Rate Selection
Notice;
(xx) all fees payable by the Borrower on the Closing
Date to the Agent, Issuing Bank and the Lenders;
(xxi) UCC-1 Financing Statements, duly executed by
the Borrower and each of the Guarantors and in proper form
for filing, for all locations required by applicable law to
perfect the lien of the Agent and the Lenders under the
Security Agreement as a first priority lien as to items of
Collateral in which a security interest may be perfected by
the filing of financing statements;
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(xxii) a certificate of an officer of the Borrower
reasonably satisfactory to the Agent and the Lenders as to
the matters set forth in Section 7.1(b)(ii) through (vi) and
7.1(c)(i) and (v) below;
(xxiii) information regarding litigation, taxes,
accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, material contracts, debt
agreements, property ownership, and contingent liabilities of
the Borrower and its Subsidiaries and, to the extent any
Permitted Acquisition has been consummated, of Bolle
Australia and Bolle UK as required by the Agent;
(xxiv) a copy of the fully executed Texas Property
Purchase Agreement for a minimum amount of $5,000,000 to be
closed not later than April 30, 1998 and all other related
documents, instruments and agreements requested by the Agent
certified as true and complete by an Authorized
Representative; and
(xxv) such other documents, instruments,
certificates and opinions as the Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the transactions
contemplated hereby.
(b) Each of the following shall have occurred or be true:
(i) The Agent and NMS shall have completed all due
diligence with respect to the Borrower and its Subsidiaries,
and to the extent any Permitted Acquisition has been
consummated on or before the Closing Date, (A) Bolle
Australia and/or Bolle UK and their Subsidiaries, as
applicable, and (B) the Bolle UK Acquisition and/or the Bolle
Australia Acquisition, as applicable, all in scope and
determination satisfactory to NationsBank and NMS in their
sole discretion;
(ii) There shall not be any action, suit,
investigation or proceeding pending or threatened in any
court or before any arbitrator or governmental
instrumentality that (a) purports to affect the Borrower and
its Subsidiaries, Bolle UK, Bolle Australia and their
respective Subsidiaries or the transactions contemplated
hereby (including any Permitted Acquisition), (b) would
reasonably be expected to have a material adverse effect on
the financings or any other transactions contemplated hereby
(including without limitation the redesignation of the Series
A Preferred Stock or the issuance and terms of the Series B
Preferred Stock), on the Borrower or its Subsidiaries or
their business or operations, on Bolle Australia, Bolle UK or
any of their Subsidiaries or their business or operations, or
on the Permitted Acquisitions or (c) would reasonably be
expected to have a material adverse effect on the ability of
the parties hereto or thereto to perform their obligations
hereunder or under either Share Purchase Agreement;
(iii) The Borrower shall be in compliance with all
existing financial and material contractual obligations
before and immediately after giving effect to the financings
and other transactions contemplated hereby;
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(iv) The Borrower, its Domestic Subsidiaries and any
other Guarantor shall have received all government,
shareholder and third-party approvals, consents and waivers,
and shall have made or given all necessary filings and
notices, as shall be required to consummate the transactions
contemplated hereby without the occurrence of any default
under, conflict with or violation of (A) any applicable law,
rule, regulation, order or decree of any court or other
Governmental Authority or arbitral authority, (B) any
Organizational Document or Operating Documents of the
Borrower or any Subsidiary or (C) any agreement, document or
instrument to which any of the Borrower or any Domestic
Subsidiary or any other Guarantor is a party or by which any
of them or their properties is bound, if such default,
conflict or violation would reasonably be expected to result
in a Material Adverse Effect; and all applicable waiting
periods shall have expired without any action being taken or
threatened in writing by any authority that could restrain,
prevent or impose any material adverse conditions on the
making of the Term Loan or the Revolving Loans, or other
transactions contemplated hereby, and no law or regulation
shall be applicable which would reasonably be expected to
have a Material Adverse Effect;
(v) The Borrower shall have been granted exclusive,
worldwide licenses on terms and conditions acceptable to the
Agent for unrestricted use of all trademarks, patents and
other intellectual property of any Foreign Subsidiary (now
existing or hereafter created or acquired), which licenses
shall permit assignment thereof to the Agent and the Lenders
and their further assignees;
(vi) The maximum principal amount of all
Indebtedness for Money Borrowed of the Borrower on the
Closing Date, giving effect to the assumption of certain
Indebtedness by the Borrower from BEC pursuant to the Bill of
Sale and the Assignment and Amendment, the initial advance on
such date of the Term Loan and Revolving Credit Loans and
repayment of Existing Indebtedness with the proceeds thereof
(other than repayment of the FG Mortgage Debt) shall not
exceed $24,000,000; provided, however, in the event that the
Bolle Australia Acquisition and the Bolle UK Acquisition have
not both been consummated on the Closing Date, the Borrower's
total Indebtedness for Money Borrowed on the Closing Date,
giving effect to the transactions referred to above in this
clause (vi) and to any Permitted Acquisition then
consummated, does not exceed the product of 3.1 times the
Borrower's pro forma Consolidated EBITDA for the Four-Quarter
Period most recently ended prior to the Closing Date giving
effect to such Permitted Acquisition closed on the Closing
Date.
(vii) The terms and conditions as well as the form
and substance of all documents, instruments and agreements by
which BEC assigns to the Borrower, and the Borrower assumes
from BEC certain assets and liabilities, including without
limitation the Bill of Sale and the Assignment and Amendment,
shall be acceptable to the Agent and the Lenders in their
discretion.
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(c) In the good faith judgment of the Agent and the Lenders:
(i) Except as set forth in Schedule 7.1(c) hereto,
there shall not have occurred a material adverse change in
the business, assets, revenues, operations, or condition
(financial or otherwise) of the Borrower and its Subsidiaries
taken as a whole since December 31, 1996 or in the
assumptions, facts or information contained in the financial
statements, budgets, projections or pro forma balance sheets
most recently delivered to the Agent by the Borrower;
(ii) There shall not have occurred and be continuing
a material adverse change in the market for syndicated credit
facilities similar in nature to the Facilities or a material
disruption of, or a material adverse change in, financial,
banking or capital market conditions, in each case as
determined by the Agent in its reasonable discretion;
(iii) All financial reports received by the Agent
with respect to the Borrower and the reasonableness and
accuracy of all financial projections shall be reasonably
satisfactory;
(iv) The terms of the Preferred Stock and all other
preferred stock and other equity or debt instruments of the
Borrower's capital structure, including without limitation
any other securities issued or consideration tendered or
liability assumed by the Borrower in connection with the
Bolle Australia Acquisition and the Bolle UK Acquisition,
shall be in form and substance acceptable to NMS, the Agent
and the Lenders; and
(v) There not having occurred and being continuing a
material adverse change in governmental regulation or policy
affecting NationsBank, NMS, the Borrower, or, to the extent
any Permitted Acquisition has been consummated, Bolle UK
and/or Bolle Australia, as applicable, or such Permitted
Acquisition, and no litigation or other action is pending or
threatened seeking an injunction, damages or relief relating
to the Credit Facilities or the related transactions
contemplated in conjunction with any Permitted Acquisition.
SECTION 7.2 CONDITIONS OF PERMITTED ACQUISITIONS AND ALL ADVANCES FOR
PERMITTED ACQUISITIONS. Each Permitted Acquisition and the obligations of the
Lenders to make any Advance on any date (each an "Acquisition Date"), whether
on or after the Closing Date, to be used to pay or repay amounts previously
paid with respect to any portion of the purchase price or costs associated with
a Permitted Acquisition are subject to the satisfaction of the following
conditions:
(a) the Agent shall have received on or before any
Acquisition Date, in form and substance satisfactory to the Agent and
Lenders, the following:
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(i) favorable written opinions of counsel to the
Borrower (including opinions of local counsel in the United
Kingdom or Australia, as applicable) dated the Acquisition
Date, addressed to the Agent and the Lenders and reasonably
satisfactory to Smith Helms Mulliss & Moore, L.L.P., special
counsel to the Agent, substantially in the forms set forth in
Exhibit N attached hereto and incorporated herein by
reference;
(ii) financial statements of Bolle Australia and/or
Bolle UK, as applicable, for the fiscal year 1997, including
balance sheets, income and cash flow statements prepared in
conformity with generally accepted accounting principles of
the applicable country and certified by independent public
accountants of recognized national standing with an
unqualified opinion;
(iii) tax returns of Bolle Australia and/or Bolle
UK, as applicable, for the two immediately preceding fiscal
years;
(iv) pro forma historical financial statements as at
and for the fiscal year ended December 31, 1997 of the
Borrower and its Subsidiaries on a consolidated basis giving
effect to such Permitted Acquisition and the transactions
contemplated thereby, consolidated pro forma financial
statements and projections of the Borrower and its
Subsidiaries on a consolidated basis for the first complete
Four-Quarter Period following completion and effectiveness of
each of the Bolle Australia Acquisition and the Bolle UK
Acquisition;
(v) information regarding litigation, taxes,
accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, material contracts, debt
agreements, property ownership, and contingent liabilities of
Bolle Australia and/or Bolle UK, as applicable, as required
by the Agent;
(vi) a written Price Waterhouse report of the
accounts receivable, inventory, accounts payable, controls
and systems of Bolle Australia and/or Bolle UK, as
applicable, in form and substance acceptable to the Agent;
(vii) a certificate of an officer of the Borrower
reasonably satisfactory to the Agent and the Lenders as to
the matters set forth in Section 7.2(b)(i) through (iii) and
7.2(c)(i) through (iv)below;
(b) Each of the following shall have occurred or be true:
(i) the total cash consideration shall not be
greater than (pound)1,000,000 for the Bolle UK Acquisition
and A$5,875,000 for the Bolle Australia Acquisition;
(ii) the cash consideration listed in (i) above, the
shares of common stock of the Borrower and all other
consideration to be tendered or liability
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assumed in connection with the Permitted Acquisition (the
"Acquisition Consideration") shall be acceptable to the
Agent and the Lenders;
(iii) There shall not be any action, suit,
investigation or proceeding pending or threatened in any
court or before any arbitrator or governmental
instrumentality that (a) would reasonably be expected to have
a material adverse effect on Bolle Australia, Bolle UK or any
of their Subsidiaries or their business or operations, or on
such Permitted Acquisition or (b) would reasonably be
expected to have a material adverse effect on the ability of
the parties hereto or thereto to perform their obligations
under the applicable Share Purchase Agreement;
(iv) The Agent and NMS shall have completed all due
diligence with respect to (A) Bolle Australia and/or Bolle UK
and their Subsidiaries, as applicable, and (B) the Bolle UK
Acquisition and/or the Bolle Australia Acquisition, as
applicable, all in scope and determination satisfactory to
NationsBank and NMS in their sole discretion;
(c) In the sole discretion of the Agent and NMS:
(i) there shall not have occurred since December 31,
1997 any change in the business, assets, condition (financial
or otherwise) or cash flow of Bolle Australia or Bolle UK or
in the facts and information relating to Bolle Australia or
Bolle UK that would reasonably be expected to have a material
adverse effect on the business, properties, operations or
conditions, financial or otherwise, of Bolle Australia or
Bolle UK;
(ii) neither the Bolle Australia Acquisition nor the
Bolle UK Acquisition shall have a Material Adverse Effect on
the Borrower and its Subsidiaries;
(iii) all conditions precedent to the consummation
of the Bolle Australia Acquisition and the Bolle UK
Acquisition, as applicable, set forth in the Share Purchase
Agreements have been satisfied (other than the tender of cash
consideration and the issuance of Common Stock) and not
waived without the approval of the Agent including all
consents and approvals of third parties and upon the
tendering of the cash proceeds in the manner set forth in
(ix) below and the issuance of Common Stock pursuant to the
terms of the Share Purchase Agreements, the Bolle Australia
Acquisition and the Bolle UK Acquisition will be effective;
(iv) There not having occurred and being continuing
a material adverse change in governmental regulation or
policy affecting Bolle UK and/or Bolle Australia, as
applicable, or any Permitted Acquisition, and no litigation
or other action is pending or threatened seeking an
injunction, damages or relief relating to any Permitted
Acquisition;
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(v) the Agent and the Lenders shall have been
authorized to rely on the opinions of counsel to the
Borrower, Bolle Australia and Bolle UK as to all matters
contained in such opinions regarding the Bolle Australia
Acquisition and the Bolle UK Acquisition;
(vi) the Agent shall have received copies of the
fully executed Share Purchase Agreements and all other
related documents, instruments and agreements requested by
the Agent certified as true and complete by an Authorized
Representative and the Share Purchase Agreements and all
related documents, instruments and agreements shall not have
been amended in form or substance not acceptable to the Agent
and the Lenders;
(vii) the Agent and NMS shall have completed all due
diligence deemed necessary with respect to the business,
operations, financial conditions and prospects of Bolle
Australia and Bolle UK.
(viii) the Bolle Australia Acquisition and the Bolle
UK Acquisition shall be effective upon tendering of the
Acquisition Consideration.
SECTION 7.3 CONDITIONS OF ALL ADVANCES AND ISSUANCES OF LETTERS OF
CREDIT ON OR AFTER THE CLOSING DATE. The obligations of the Lenders to make any
Advance or to Convert or Continue the interest rates thereof pursuant to
Sections 2.10 or 3.11 (other than any Conversion required by Sections 5.1, 5.2
or 5.3 hereof), and of Issuing Bank to issue Letters of Credit hereunder, on or
subsequent to the Closing Date are subject to the satisfaction of the following
conditions:
(a) the Agent shall have received a notice of such borrowing
or request as required by Section 3.1 hereof;
(b) the representations and warranties of the Borrower set
forth in Article VIII hereof and in each of the other Loan Documents
shall be true and correct in all material respects on and as of the
date of such Advance, Conversion, Continuation or issuance of such
Letters of Credit, as the case may be, with the same effect as though
such represen tations and warranties had been made on and as of such
date, except (i) to the extent that such representations and
warranties expressly relate to an earlier date, (ii) that the
representations and warranties set forth in Section 8.4 and 8.5 shall
be deemed to include and take into account any merger or consolidation
permitted under Section 10.4 hereof or otherwise permitted in
accordance with the terms hereof, and (iii) that the financial
statements referred to in Section 8.6(a) shall be deemed to be those
financial statements most recently delivered to the Agent and the
Lenders pursuant to Section 9.1 hereof;
(c) in the case of the issuance of a Letter of Credit,
Borrower shall have executed and delivered to Issuing Bank an
Application and Agreement for Letter of Credit
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in form and content reasonably acceptable to Issuing Bank together
with such other instruments and documents as it shall reasonably
request;
(d) at the time of each such Advance, Conversion,
Continuation or issuance of each Letter of Credit, as the case may be,
no Default or Event of Default shall have occurred and be continuing;
(e) immediately after issuing any Letter of Credit, the
aggregate Letter of Credit Outstandings shall not exceed the Total
Letter of Credit Commitment; and
(f) immediately after giving effect to any Revolving Loan or
Letter of Credit, the sum of the Dollar Value of all Revolving Credit
Outstandings and all Letter of Credit Outstandings shall not exceed
the Total Revolving Credit Commitment, the sum of all FF Revolving
Credit Outstandings and Term Loan Outstandings shall not exceed the
Total FF Loan Commitment, and the Dollar Value of each Lender's
Applicable Commitment Percentage of Revolving Loans and Participations
shall not exceed its Revolving Credit Commitment.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Except as otherwise indicated below, all Subsidiaries acquired in
connection with the Bolle Australia Acquisition and the Bolle UK Acquisition
and as to which the representations and warranties referenced in Section 8.20
hereof are applicable shall be deemed excluded from the meaning of the terms
"Subsidiary" and "Subsidiaries" for the purposes of making the representations
and warranties contained in this Article VIII (other than Section 8.20 hereof)
on the Acquisition Date only. Such Subsidiaries shall be included in the
meanings of such terms at all times after the Acquisition Date that the
representations and warranties contained in this Article VIII are given.
The Borrower represents and warrants (which representations and
warranties shall survive the delivery of the documents mentioned herein and the
making of Loans and issuance of Letters of Credit) with respect to itself and
to its Subsidiaries as follows:
SECTION 8.1 ORGANIZATION AND AUTHORITY.
(a) The Borrower and each Subsidiary is a corporation duly
organized and validly existing under the laws of the jurisdiction of
its incorporation;
(b) the Borrower and each Subsidiary (i) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (ii) is qualified to do business in every
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jurisdiction in which it conducts business except where the
failure so to qualify would not have a Material Adverse Effect;
(c) the Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) each Guarantor has the power and authority to execute,
deliver and perform the Guaranty and the Security Agreement and to
execute, deliver and perform each of the other Loan Documents to which
it is a party; and
(e) when executed and delivered, and, with respect to the
Intellectual Property Assignments, upon filing and satisfaction of the
express conditions to effectiveness therein, each of the Loan
Documents to which the Borrower or any Guarantor is a party will be
the legal, valid and binding obligation or agreement, as the case may
be, of the Borrower and such Guarantor, as applicable, enforceable
against it in accordance with its respective terms, subject to the
effect of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general principles of
equity which may limit the availability of remedies (whether in a
proceeding at law or in equity);
SECTION 8.2 LOAN DOCUMENTS. The execution, delivery and performance by
the Borrower and each Guarantor of each of the Loan Documents to which it is a
party:
(a) have been duly authorized by all requisite corporate
action (including any required shareholder action) of the Borrower or
such Guarantor, as applicable, required for the lawful execution,
delivery and performance thereof;
(b) do not violate any provisions of (i) any law, rule or
regulation applicable to the Borrower or such Guarantor which
violation would reasonably be expected to have a Material Adverse
Effect, (ii) any order of any court or other agency of government
binding on the Borrower or such Guarantor, or their respective
properties, or (iii) the charter documents, documents of organization
or governance or bylaws of the Borrower or such Guarantor;
(c) will not be in conflict with, result in a breach of or
constitute an event of default, or an event which, with notice or
lapse of time, or both, would constitute an event of default, under
any indenture, agreement or other instrument to which the Borrower or
such Guarantor is a party or by which its properties or assets are
bound; and
(d) will not result in the creation or imposition of any
Lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Borrower or such Guarantor except
Permitted Liens and any Liens in favor of the Agent and the Lenders
created by the Loan Documents;
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SECTION 8.3 SOLVENCY. The Borrower and each Guarantor are Solvent
after giving effect to the transactions contemplated by this Agreement and
the other Loan Documents;
SECTION 8.4 SUBSIDIARIES AND STOCKHOLDERS. Borrower has no
Subsidiaries other than those Persons listed as Subsidiaries in Schedule 8.4
hereto, as the same may be hereafter amended; Schedule 8.4, as the same may be
hereafter amended, states the authorized and issued capitalization of each
Subsidiary listed thereon, the number of shares of each class of capital stock
issued and outstanding of each such Subsidiary and the number and/or percentage
of outstanding shares (including options, warrants and other rights to acquire
any interest) of each such class of capital stock owned by the Borrower or by
any such Subsidiary; the outstanding shares of each such Subsidiary have been
duly authorized and validly issued and are fully paid and nonassessable; and
the Borrower and each such Subsidiary owns beneficially and of record all the
shares it is listed as owning in Schedule 8.4, free and clear of any Lien other
than Permitted Liens;
SECTION 8.5 OWNERSHIP INTERESTS. The Borrower owns no interest in any
other Person (excluding Subsidiaries) other than the Persons listed in Schedule
8.5 hereto, as the same may be hereafter amended;
SECTION 8.6 FINANCIAL CONDITION.
(a) The Borrower has heretofore furnished to the Agent (i)
the audited consolidated and unaudited consolidating balance sheets of
the Borrower and its Subsidiaries as at December 31, 1996, and the
notes thereto and the related audited consolidated and unaudited
consolidating statements of operations, cash flows, and shareholders'
equity for the Fiscal Years then ended as examined and certified by
Price Waterhouse, L.L.P., and (ii) unaudited interim consolidated
financial statements of the Borrower and its Subsidiaries consisting
of a consolidated balance sheet and related consolidated statement of
operations and cash flows, without notes, for and as of the nine-month
period ended September 30, 1997. Except as set forth therein, such
financial statements (including the notes thereto) present fairly the
consolidated financial condition of the Borrower and its Subsidiaries,
as of the end of such Fiscal Year and nine-month period and results of
their operations and the changes in shareholders' equity for such
Fiscal Year and nine-month period, all in conformity with GAAP applied
on a Consistent Basis;
(b) Except as set forth on Schedule 7.1(c), since December
31, 1996, there has not occurred any event which has had or would
reasonably be expected to have a Material Adverse Effect, and the
businesses, properties and operations of the Borrower and its
Subsidiaries, considered as a whole, have not been materially
adversely affected as a result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo or
act of God;
(c) Since December 31, 1996, except as set forth in Schedule
8.6 or Schedule 8.10 attached hereto, or as permitted under Section
10.1 hereof, neither the Borrower nor any Subsidiary has incurred,
other than in the ordinary course of business, any material
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Indebtedness or material Contingent Obligations that remain
outstanding or unsatisfied other than Outstandings hereunder;
SECTION 8.7 TITLE TO PROPERTIES. The Borrower and its Subsidiaries
have title to all their respective owned real and personal properties, subject
to no transfer restrictions or Liens of any kind, except for (i) the transfer
restrictions and Liens described in Schedule 8.7 attached hereto, (ii)
Permitted Liens, (iii) with respect to any personal property that constitutes a
security, transfer restrictions imposed under Federal and state securities laws
and regulations, and (iv) the lack of title that could not reasonably be
expected to have a Material Adverse Effect;
SECTION 8.8 TAXES. The Borrower and its Subsidiaries have filed or
caused to be filed all Federal, state, local and foreign tax returns which are
required to be filed by them, other than those returns the failure of which to
file could not reasonably be expected to have a Material Adverse Effect and,
except for those tax matters set forth on Schedule 8.8 hereto and for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves satisfactory to the Borrower's independent
certified public accountants have been established, have paid or caused to be
paid all taxes as shown on said returns or on any assessment received by them,
to the extent that such taxes have become due unless the failure to pay the
same could not reasonably be expected to have a Material Adverse Effect;
SECTION 8.9 OTHER AGREEMENTS. Neither the Borrower nor any Subsidiary is:
----------------
(a) a party to any judgment, order or decree or subject to
restrictions which would reasonably be expected to have a Material
Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which the Borrower or any Subsidiary is a
party, which default has, or if not remedied within any applicable
grace period would reasonably be expected to have, a Material Adverse
Effect;
SECTION 8.10 LITIGATION. Except as set forth on Schedule 8.10, there
is no action, suit or proceeding at law or in equity or by or before any
governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or affecting the Borrower or any Subsidiary or any properties or
rights of the Borrower or any Subsidiary, which would reasonably be expected to
have a Material Adverse Effect;
SECTION 8.11 MARGIN STOCK. Neither the Borrower nor any Subsidiary
owns any "margin stock" as such term is defined in Regulation U, as amended (12
C.F.R. Part 221), of the Board. The proceeds of the borrowings made pursuant to
Articles 2 and 3 hereof will be used by the Borrower and its Subsidiaries only
for the purposes set forth in Sections 2.13 and 3.15 hereof. None of such
proceeds will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin stock or
for any other purpose which might constitute any of the Loans under this
Agreement a "purpose credit" within the meaning of said
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Regulation U or Regulation X (12 C.F.R. Part 224) of the Board. Neither the
Borrower nor any agent acting on its behalf has taken or will take any action
which might cause this Agreement or any of the documents or instruments
delivered pursuant hereto to violate any regulation of the Board or to violate
the Securities Exchange Act of 1934, as amended, or the Securities Act of 1933,
as amended, or any state securities laws, in each case as in effect on the date
hereof;
SECTION 8.12 INVESTMENT COMPANY. Neither the Borrower nor any
Subsidiary is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended (15 U.S.C.
ss. 80a-1, et seq.). The application of the proceeds of the Loans and repayment
thereof by the Borrower and the performance by the Borrower of the transactions
contemplated by this Agreement will not violate any provision of said Act, or
any rule, regulation or order issued by the Securities and Exchange Commission
thereunder, in each case as in effect on the date hereof;
SECTION 8.13 INTELLECTUAL PROPERTY. The Borrower and its Subsidiaries
own or have the right to use, under valid license agreements or otherwise, all
material patents, licenses, franchises, trademarks, trademark rights, trade
names, trade name rights, trade secrets and copyrights, and all applications
for any of the foregoing, necessary to the conduct of their businesses as now
conducted (the "Intellectual Property"), all such Intellectual Property being
identified on the schedules to the Intellectual Property Security Agreement
and, except as set forth on Schedule 8.13 hereto, without known conflict with
any patent, license, franchise, trademark, trade secrets and confidential
commercial or proprietary information, trade name, copyright, rights to trade
secrets or other proprietary rights of any other Person. Each Subsidiary owning
any Collateral as defined in the Intellectual Property Security Agreement is a
party to the Intellectual Property Security Agreement. All material, patents,
licenses, franchises, trademarks, trademark rights, trade names, trade secrets
and copyrights of Bolle SNC are subject to the License Agreement.
SECTION 8.14 NO UNTRUE STATEMENT. Neither this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any Guarantor in accordance with or pursuant to any Loan
Document contains any misrepresentation or untrue statement of material fact or
omits to state a material fact necessary, in light of the circumstances under
which such representation or statement was made, in order to make any such
representation or statement contained herein or therein not misleading in any
material respect;
SECTION 8.15 NO CONSENTS, ETC. Neither the respective businesses or
properties of the Borrower or any Subsidiary, nor any relationship between the
Borrower or any Subsidiary and any other Person, nor the execution, delivery
and performance of the Loan Documents and the transactions contemplated hereby
is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or other
authority or any other Person on the part of the Borrower or any Subsidiary as
a condition to the execution, delivery and performance of, or consummation of
the transactions contemplated by, this Agreement or the other Loan Documents,
including, without limitation, the Permitted
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Acquisitions, or if so, such consent, approval, authorization, filing,
registration or qualification has been obtained or effected, or shall have been
obtained or effected prior to the Closing Date, as the case may be, or as set
forth on Schedule 8.15 hereto;
SECTION 8.16 EMPLOYEE BENEFIT PLANS.
Except as set forth in Schedule 8.16 hereof:
(a) Neither the Borrower nor any ERISA Affiliate maintains or
contributes to, or has any obligation under, any Employee Benefit
Plans other than those identified on Schedule 8.16 attached hereto;
(b) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all
Foreign Benefit Laws with respect to all Employee Benefit Plans except
where failure to comply would not result in a Material Adverse Effect
and except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet
expired. Each Employee Benefit Plan that is intended to be qualified
under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and each trust related to such
plan has been determined to be exempt under Section 501(a) of the
Code. No material liability has been incurred by the Borrower or any
ERISA Affiliate which remains unsatisfied for any taxes or penalties
with respect to any Employee Benefit Plan or any Multiemployer Plan;
(c) No Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412
of the Code), nor has any funding waiver from the IRS been received or
requested with respect to any Pension Plan, nor has the Borrower or
any ERISA Affiliate failed to make any contributions or to pay any
amounts due and owing as required by Section 412 of the Code, Section
302 of ERISA or the terms of any Pension Plan prior to the due dates
of such contributions under Section 412 of the Code or Section 302 of
ERISA, nor has there been any event requiring any disclosure under
Section 4041(c)(3)(C), 4063(a) or 4068(f) of ERISA with respect to any
Pension Plan;
(d) Neither the Borrower nor any ERISA Affiliate has: (A)
engaged in a nonexempt prohibited transaction described in Section 406
of ERISA or Section 4975 of the Code, (B) incurred any liability to
the PBGC which remains outstanding other than the payment of premiums
and there are no premium payments which are due and unpaid, (C) failed
to make a required contribution or payment to a Multiemployer Plan or
(D) failed to make a required installment or other required payment
under Section 412 of the Code;
(e) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan; and
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(f) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee
Benefit Plan.
SECTION 8.17 NO DEFAULT. As of the date hereof, there does not exist
any Default or Event of Default hereunder.
SECTION 8.18 ENVIRONMENTAL MATTERS. Except as listed on Schedule 8.18,
the Borrower and each Subsidiary is in compliance in all material respects with
all applicable Environmental Laws and has been issued and currently maintains
all required federal, state and local permits, licenses, certificates and
approvals. Neither the Borrower nor any Subsidiary has been notified of any
pending or threatened action, suit, proceeding or investigation, and neither
the Borrower nor any Subsidiary is aware of any facts, which (a) calls into
question, or would reasonably be expected to call into question, compliance by
the Borrower or any Subsidiary with any Environmental Laws, (b) seeks, or would
reasonably be expected to form the basis of a meritorious proceeding to seek,
to suspend, revoke or terminate any license, permit or approval necessary for
the operation of the Borrower's or any Subsidiary's business or facilities, or
(c) seeks to cause, or would reasonably be expected to form the basis of a
meritorious proceeding to cause, any property of the Borrower or any Subsidiary
to be subject to any restrictions on ownership, use, occupancy or
transferability under any Environmental Law, any of which would reasonably be
expected to have a Material Adverse Effect.
SECTION 8.19 EMPLOYMENT MATTERS. Except as set forth on Schedule 8.19,
the Borrower and all Subsidiaries are in compliance with all applicable laws,
rules and regulations pertaining to labor or employment matters, including
without limitation those pertaining to wages, hours, occupational safety and
taxation, except where noncompliance could not reasonably be expected to have a
Material Adverse Effect, and there is neither pending nor, to the knowledge of
the Borrower, any threatened litigation, administrative proceeding or
investigation in respect of such matters an adverse ruling or determination in
which would reasonably be expected to have a Material Adverse Effect.
SECTION 8.20 PERMITTED ACQUISITION. On the date that any Permitted
Acquisition is consummated and effective, each of the representations and
warranties contained in the Share Purchase Agreements, including all Exhibits
referenced therein and all definitions of defined terms referenced therein, are
incorporated herein by reference and given by the Borrower as of such date.
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ARTICLE IX
AFFIRMATIVE COVENANTS
Until the occurrence of the Facility Termination Date, unless the
Required Lenders shall otherwise consent in writing, the Borrower will and will
cause each Guarantor, as applicable, to:
SECTION 9.1 FINANCIAL REPORTS, ETC.
(a) As soon as practical and in any event within 105 days
after the end of each Fiscal Year after the Closing Date, deliver or
cause to be delivered to the Agent and each Lender (i) the audited
consolidated and unaudited consolidating balance sheets of the
Borrower and its Subsidiaries, with the notes thereto, and the related
audited consolidated and unaudited consolidating statements of
earnings, cash flow, and shareholders' equity and the notes thereto,
for such Fiscal Year, setting forth in the case of the consolidated
statements comparative financial statements for the preceding Fiscal
Year, all prepared in accordance with GAAP applied on a Consistent
Basis (except for the consolidating unaudited financial statements
with respect to Bolle France, Bolle Australia and Bolle UK, as to
which generally accepted accounting principles of the applicable
country shall apply) and containing, with respect to the audited
consolidated financial reports, opinions of Price Waterhouse, or other
such independent certified public accountants selected by the Borrower
and approved by the Agent, which approval shall not be unreasonably
withheld, which are unqualified and without an exception not
acceptable to the Agent; and (ii) a certificate of an Authorized
Representative as to the absence of any Default or Event of Default
and demonstrating compliance with Article XI of this Agreement, which
certificate shall be in the form attached hereto as Exhibit O and
incorporated herein by reference;
(b) as soon as practical and in any event within 60 days
after the end of each fiscal quarter beginning with the fiscal quarter
ended March 31, 1998, deliver to the Agent and each Lender (i) the
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such fiscal quarter, and the related
consolidated and consolidating statements of earnings, cash flow, and
shareholders' equity for such fiscal quarter and for the period from
the beginning of the Fiscal Year through the end of such fiscal
quarter, accompanied by a certificate of an Authorized Representative
to the effect that such financial statements present fairly the
financial position of the Borrower and its Subsidiaries as of the end
of such fiscal quarter and the results of their operations and the
changes in shareholders equity for such fiscal quarter, in conformity
with the standards set forth in Section 8.6(a) with respect to interim
financials, and (ii) a certificate of an Authorized Representative as
to the absence of any Default or Event of Default and containing
computations for such quarter comparable to that required pursuant to
Section 9.1(a)(ii);
(c) upon the request of the Required Lenders, deliver to the
Agent and each Lender a letter from the Borrower's accountants
specified in Section 9.1(a)(i) hereof stating that, in performing the
audit necessary to render an opinion on the financial
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statements delivered under Section 9.1(a)(i), they obtained no
knowledge of any Default or Event of Default by the Borrower in the
fulfillment of the terms and provisions of this Agreement insofar as
they relate to financial matters (which at the date of such statement
remains uncured); and if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature
and period of existence thereof;
(d) not later than the last Business Day of each Fiscal Year,
deliver to the Agent and each Lender consolidated financial
projections for the Borrower and its Subsidiaries for the period from
the beginning of the next Fiscal Year to the Scheduled Maturity Date,
prepared on an annual basis and in accordance with GAAP applied on a
Consistent Basis; provided, however, that projections for the Fiscal
Year immediately following delivery of such projections shall be
prepared on a quarterly basis; provided further, however, that in no
event shall delivery of such projections constitute a representation
or warranty of the Borrower that its consolidated financial results
for, and consolidated financial condition at the end of, the period
for which such projections were prepared shall meet or exceed such
projections;
(e) promptly upon their becoming available to the Borrower,
the Borrower shall deliver to the Agent and each Lender a copy of (i)
all regular or special reports or effective registration statements
which the Borrower or any Subsidiary shall file from and after the
date hereof with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy
statement distributed by the Borrower to its shareholders, bondholders
or the financial community in general, and (iii) any management letter
or other report submitted to the Borrower or any of its Subsidiaries
by independent accountants in connection with any annual, interim or
special audit of the Borrower or any of its Subsidiaries; and
(f) promptly, from time to time, deliver or cause to be
delivered to the Agent and each Lender such other information
regarding Borrower's and each Subsidiary's operations, business
affairs and financial condition as the Agent or such Lender may
reasonably request.
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial information delivered hereunder to the Lenders (or any
affiliate of any Lender) or to the Agent to any regulatory authority having
jurisdiction over any of the Lenders pursuant to any written request therefor,
or, subject to Article XIV hereof, to any other Person who shall acquire or
consider the acquisition of a participation interest in or assignment of any
Loan or Letter of Credit permitted by this Agreement.
SECTION 9.2 MAINTAIN PROPERTIES. Maintain all properties necessary to
its operations in good working order and condition (ordinary wear and tear
excepted) and make all needed repairs, replacements and renewals as are
necessary to conduct its business in accordance with customary business
practices.
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SECTION 9.3 EXISTENCE, QUALIFICATION, ETC. Do or cause to be done all
things necessary to preserve and keep in full force and effect its existence
and all material rights and franchises, trade names, trademarks and permits,
except to the extent conveyed in connection with a transaction permitted under
Section 10.4 hereof, and maintain its license or qualification to do business
as a foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary and in which failure to maintain such license,
qualification and good standing would reasonably be expected to result in a
Material Adverse Effect.
SECTION 9.4 REGULATIONS AND TAXES. Comply with all statutes and
governmental regulations if noncompliance therewith would reasonably be
expected to have a Material Adverse Effect and pay all taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, might become a Lien against any of its properties that
constitute Collateral or a Lien on any other property, except Permitted Liens
and any of the foregoing being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves have been
established.
SECTION 9.5 INSURANCE. (a) Keep all of its insurable properties
adequately insured at all times with responsible insurance carriers against
loss or damage by fire and other hazards as are customarily insured against by
similar businesses owning such properties similarly situated, (b) maintain
general public liability insurance at all times with responsible insurance
carriers against liability on account of damage to persons and property having
such limits, deductibles, exclusions and co-insurance and other provisions
providing no less coverage than that specified in Schedule 9.5 attached hereto,
such insurance policies to be in form reasonably satisfactory to the Agent, (c)
maintain insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes) and against business interruption and (d) maintain all
insurance required under the Security Instruments. Each of the policies of
insurance described in this Section 9.5 shall provide that the insurer shall
give the Agent not less than thirty (30) days' prior written notice before any
such policy shall lapse or be terminated, canceled or materially amended.
SECTION 9.6 TRUE BOOKS. Keep true books of record and account in which
full, true and correct entries shall be made of all of its dealings and
transactions in accordance with customary business practices, and set up on its
books such reserves as may be required by GAAP with respect to doubtful
accounts and all taxes, assessments, charges, levies and claims and with
respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
SECTION 9.7 RIGHT OF INSPECTION. Permit any Person designated by any
Lender or the Agent, at the Borrower's expense with respect to any Person
designated by the Agent if there has occurred and continues to exist a Default
or an Event of Default, and at the requesting Lender's expense in all other
circumstances, to visit and inspect any of the properties, corporate books and
financial reports of the Borrower and its Subsidiaries, and to discuss their
respective affairs, finances and accounts with their principal officers and
independent certified public accountants, all at reasonable times, at
reasonable intervals and with reasonable prior notice.
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SECTION 9.8 OBSERVE ALL LAWS. Conform to and duly observe in all
material respects all laws, rules and regulations and all other valid
requirements of any Governmental Authority the non-observance of which or
non-compliance with which would reasonably be expected to have a Material
Adverse Effect and obtain and maintain all material licenses, permits,
certifications and approvals, as are required for the conduct of the business
of the Borrower or any Material Subsidiary.
SECTION 9.9 COVENANTS EXTENDING TO SUBSIDIARIES. Without duplication,
cause each of its Subsidiaries to do with respect to itself, its business and
its assets, each of the things required of the Borrower in Sections 9.2 through
9.8, inclusive.
SECTION 9.10 OFFICER'S KNOWLEDGE OF DEFAULT. Upon any Authorized
Representative or executive officer of the Borrower obtaining knowledge of any
Default or Event of Default hereunder or under any other obligation of the
Borrower or any Subsidiary, promptly deliver to the Agent written notice
thereof, the period of existence thereof, and what action the Borrower proposes
to take with respect thereto.
SECTION 9.11 SUITS OR OTHER PROCEEDINGS. Upon any Authorized
Representative or executive officer of the Borrower obtaining knowledge of any
litigation or other proceedings being instituted against the Borrower or any
Subsidiary, or any attachment, levy, execution or other process being
instituted against any assets of the Borrower or any Subsidiary, in an
aggregate amount in respect of all such proceedings and processes greater than
$500,000 not otherwise covered by insurance, promptly deliver to the Agent
written notice thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process.
SECTION 9.12 NOTICE OF DISCHARGE OF HAZARDOUS MATERIAL OR
ENVIRONMENTAL COMPLAINT. Promptly provide to the Agent true, accurate and
complete copies of any and all letters, notices, complaints, orders,
directives, claims, or citations received by the Borrower or any Subsidiary
relating to any (a) violation or alleged violation by the Borrower or any
Subsidiary of any applicable Environmental Laws; (b) release or threatened
release into the environment by the Borrower or any Subsidiary, or by any
Person handling, transporting or disposing of any Hazardous Material on behalf
of the Borrower or any Subsidiary, or at any facility or property owned or
leased or operated by the Borrower or a Subsidiary, of any Hazardous Material,
except where occurring legally; or (c) liability or alleged liability of the
Borrower or any Subsidiary for the costs of cleaning up, removing, remediating
or responding to a release of Hazardous Materials.
SECTION 9.13 ENVIRONMENTAL COMPLIANCE. If the Borrower or any
Subsidiary shall receive any letter, notice, complaint, order, directive, claim
or citation alleging that the Borrower or any Subsidiary has violated any
Environmental Law or is liable for the costs of cleaning up, removing,
remediating or responding to a release of Hazardous Materials, the Borrower
shall, within the time period permitted and to the extent required by the
applicable Environmental Law or the Governmental Authority responsible for
enforcing such Environmental Law, remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation or release or
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satisfy such liability unless, and only during the period that, the
applicability of the Environmental Law, the fact of such violation or liability
or what is required to remove or remedy such violation is being contested by
the Borrower or the applicable Subsidiary by appropriate proceedings diligently
conducted and all reserves with respect thereto as may be required under GAAP,
if any, have been made.
SECTION 9.14 INDEMNIFICATION. The Borrower hereby agrees to defend,
indemnify and hold the Agent and the Lenders, and their respective officers,
directors, employees and agents, harmless from and against any and all claims,
losses, penalties, liabilities, damages and expenses (including, without
limitation, assessment and cleanup costs and reasonable attorneys',
consultants' and other experts' fees and disbursements) arising directly or
indirectly from, out of or by reason of (a) the violation of any Environmental
Law by the Borrower or any Subsidiary or with respect to any property owned,
operated or leased by the Borrower or any Subsidiary or (b) the handling,
storage, treatment, emission or disposal of any Hazardous Material by or on
behalf of the Borrower or any Subsidiary on or with respect to property owned
or leased or operated by the Borrower or any Subsidiary. The provisions of this
Section 9.14 shall survive repayment of the Obligations, the occurrence of the
Facility Termination Date and expiration or termination of this Agreement.
SECTION 9.15 FURTHER ASSURANCES. At the Borrower's cost and expense
upon request of the Agent, or at the Lenders' cost and expense upon request of
the Required Lenders, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
agreements, financing and continuation statements, and do and cause to be done
such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Agent to carry out more effectively the provisions
and purposes of this Agreement and the other Loan Documents.
SECTION 9.16 EMPLOYEE BENEFIT PLANS. With reasonable promptness, and
in any event within thirty (30) days, the Borrower will give notice of and/or
deliver to Agent copies of (a) the establishment of any new Employee Benefit
Plan, the commencement of contributions to any plan to which the Borrower or
any of its ERISA Affiliates was not previously contributing or any increase in
the benefits of any existing Employee Benefit Plan, (B) each funding waiver
request filed with respect to any Employee Benefit Plan and all communications
received or sent by the Borrower or any ERISA Affiliate with respect to such
request and (C) the failure of the Borrower or any ERISA Affiliate to make a
required installment or payment under Section 302 of ERISA or Section 412 of
the Code by the due date.
SECTION 9.17 TERMINATION EVENTS. Promptly and in any event within ten
(10) days of becoming aware of the occurrence of or forthcoming occurrence of
any (a) Termination Event or (b) "prohibited transaction," as such term is
defined in Section 406 of ERISA or Section 4975 of the Code, in connection with
any Pension Plan or any trust created thereunder, the Borrower will deliver to
Agent a notice specifying the nature thereof, what action the Borrower has
taken, is taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the Department of
Labor or the PBGC with respect thereto.
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SECTION 9.18 ERISA NOTICES. With reasonable promptness but in any
event within ten (10) days for purposes of clauses (a), (b) and (c), the
Borrower will deliver to the Agent copies of (a) any favorable or unfavorable
determination letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a) of the Code, (b)
all notices received by the Borrower or any ERISA Affiliate of the PBGC's
intent to terminate any Pension Plan or to have a trustee appointed to
administer any Pension Plan, (c) each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by the Borrower or any ERISA Affiliate
with the Internal Revenue Service with respect to each Pension Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA. The Borrower will notify the Agent in
writing within two (2) Business Days of the Borrower obtaining knowledge or
reason to know that the Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA.
SECTION 9.19 CONTINUED OPERATIONS. Continue at all times (a) to
conduct its business and engage principally in the Core Business or a line or
lines of business complimentary to the Core Business and (b) to preserve,
protect and maintain free from Liens (other than Permitted Liens) its material
patents, copyrights, licenses, trademarks, trademark rights, trade names, trade
name rights, trade secrets and know-how necessary or useful in the conduct of
its operations.
SECTION 9.20 USE OF PROCEEDS. Use the proceeds of the Loans solely for
the purposes specified in Section 2.13 or 3.15 hereof.
SECTION 9.21 NEW SUBSIDIARIES. In the event of the acquisition or
creation of any Subsidiary (a "New Subsidiary") or a Control Subsidiary, cause
to be delivered to the Agent for the benefit of the Lenders each of the
following indicated to be delivered by such Subsidiary within thirty (30)
Business Days of the acquisition or creation of such Subsidiary or Control
Subsidiary:
(a) a Stock Pledge Agreement with respect to the capital
stock of such New Subsidiary or Control Subsidiary owned by the
Borrower or any Subsidiary substantially in the form of Exhibit G
hereto; provided, however, that if such New Subsidiary or Control
Subsidiary is a Foreign Subsidiary or a Foreign Control Subsidiary,
such pledge of capital stock shall only be required if it is a Direct
Foreign Subsidiary or a Direct Foreign Control Subsidiary or if there
would not result therefrom a material adverse tax impact on the
Borrower;
(b) a Guaranty executed by such New Subsidiary, substantially
in the form of Exhibit E attached hereto; provided, however, that such
Guaranty shall only be required if such New Subsidiary is a Domestic
Subsidiary or such action would not have a material adverse tax impact
on the Borrower;
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(c) a Security Agreement executed by such New Subsidiary,
substantially in the form of Exhibit J attached hereto; provided,
however, that such Security Agreement shall only be required if such
New Subsidiary is a Domestic Subsidiary or such action would not have
a material adverse tax impact on the Borrower and is not otherwise
prohibited by applicable laws of any foreign jurisdiction;
(d) if such New Subsidiary has any material leased locations,
Intellectual Property or intercompany advances or borrowings, duly
executed copies of a Landlord Waiver, a Lease Assignment, an
Intellectual Property Security Agreement, an Intercompany Note
Assignment and a Subordination Agreement, as applicable, executed by
such New Subsidiary, substantially in the forms of such documents
attached hereto as exhibits; provided, however, that each of the
foregoing shall be required only if such New Subsidiary is a Domestic
Subsidiary or such action would not have a material adverse tax impact
on the Borrower and is not otherwise prohibited by applicable laws of
any foreign jurisdiction;
(e) an opinion of counsel to such New Subsidiary dated as of
the date of delivery of the other documents required to be delivered
pursuant to this Section 9.21 and addressed to the Agent and the
Lenders, in form and substance identical to the opinion of counsel
delivered on the Closing Date pursuant to Section 7.1 hereof with
respect to any Guarantor and the Pledged Stock; and
(f) current copies of the Organizational Documents and
Operating Documents of such New Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, or appropriate committees thereof (and, if required by such
Organizational Documents or Operating Documents, or by applicable
laws, of the shareholders), of such New Subsidiary authorizing the
actions and the execution and delivery and performance of such
Guaranty, Security Agreement, Stock Pledge Agreement, Intellectual
Property Security Agreement and each other agreement required under
this Section 9.21 and evidence satisfactory to the Agent (confirmation
of the receipt of which will be provided by the Agent to the Lenders)
that such New Subsidiary is Solvent as of such date after giving
effect to such Guaranty, Security Agreement, Stock Pledge Agreement,
and, if applicable, Intellectual Property Security Agreement.
SECTION 9.22 HEDGING OBLIGATIONS. Enter into Swap Agreements in an
aggregate notional amount reasonably agreed to by the Borrower and the Agent
provided that such Swap Agreements are available on terms and conditions
reasonably acceptable to the Borrower.
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ARTICLE X
NEGATIVE COVENANTS
Until the occurrence of the Facility Termination Date, unless the
Required Lenders shall otherwise consent in writing, the Borrower will not, nor
will it permit any Subsidiary to:
SECTION 10.1 INDEBTEDNESS. Incur, create, assume or permit to exist
any Indebtedness of the Borrower and its Subsidiaries determined on a
consolidated basis, howsoever evidenced, except the following (collectively,
the "Permitted Indebtedness"):
(a) Indebtedness set forth in Schedule 10.1 attached hereto
and incorporated herein by reference and any extension, renewal or
refinancing thereof that does not increase the principal amount
thereof or (except as provided below) interest rate payable thereon
from that existing immediately prior to such extension, renewal or
refinancing; provided, none of the instruments and agreements
evidencing or governing such Indebtedness shall be amended, modified
or supplemented after the Closing Date to change any terms of
subordination, repayment or rights of conversion, put, exchange or
other rights from such terms and rights as in effect on the Closing
Date; provided further, that, notwithstanding the foregoing, the rate
of interest payable thereon may change but in no event shall be
greater than the interest rate generally available at the date of such
amendment, modification or supplement from money center or regional
commercial banks to companies of creditworthiness similar to that of
the Borrower;
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) Indebtedness consisting of Hedging Obligations permitted
under Section 10.9 hereof;
(d) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(e) (i) purchase money Indebtedness and (ii) Indebtedness
incurred with respect to financing of Capital Expenditures,
collectively under both clause (i) and (ii) not to exceed an aggregate
outstanding amount at any time of $2,500,000;
(f) Indebtedness of any Guarantor owing to the Borrower or
another Guarantor and Indebtedness of the Borrower owing to any
Guarantor;
(g) Indebtedness of Subsidiaries acquired after the Closing
Date, provided that (i) such Indebtedness (A) is recorded in the
financial books and records of such Subsidiary prior to such
Acquisition, (B) was not incurred by such Subsidiary in anticipation
of such Acquisition, (C) is non-recourse to the Borrower and each
Guarantor and not subsequently assumed by the Borrower or any
Guarantor, and (D) is incurred upon terms
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determined by the Borrower in its good faith business judgment to be
more economically advantageous to the Borrower than the terms of an
Advance hereunder or, if not so determined by the Borrower to be more
economically advantageous, replaced by an Advance hereunder within 30
days of such Acquisition, and (ii) immediately after such acquisition,
no Default or Event of Default has occurred or is continuing;
(h) additional unsecured Indebtedness incurred during any
Fiscal Year in an aggregate outstanding principal amount not to exceed
$1,000,000; provided, however, any such permitted additional
Indebtedness not incurred during any Fiscal Year may not be incurred
during any subsequent Fiscal Year;
(i) unsecured Indebtedness evidenced by the Intercompany
Notes and with respect to which the payee thereunder shall have
entered into and be subject to the Subordination Agreement and the
Intercompany Note Assignment.;
(j) Indebtedness arising under the Bill of Sale with respect
to the obligations of the Borrower to BEC.
Notwithstanding the foregoing, none of the Indebtedness described in clauses
(a), (b), (d), (f), (g) or (i) above shall be permitted to be incurred by Bolle
France, Bolle Australia, Bolle UK or Tavister, and in the event that any
Indebtedness is incurred by Bolle France, Bolle Australia, Bolle UK or
Tavister, such Indebtedness shall not constitute "Permitted Indebtedness"
hereunder.
SECTION 10.2 LIENS. Incur, create or permit to exist any pledge, Lien,
charge or other encumbrance of any nature whatsoever with respect to any
property or assets now owned or hereafter acquired by the Borrower or any of
its Subsidiaries, including without limitation any capital stock of the
Borrower or any of its Subsidiaries, other than any of the following
(collectively, the "Permitted Liens"):
(a) Liens existing as of the date hereof and as set forth in
Schedule 8.7 attached hereto, provided, however, that any such Lien
that is released after the date hereof may not thereafter re-attach or
otherwise become permitted by this Section 10.2(a);
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(c) Liens in respect of purchase money Indebtedness permitted
to be incurred pursuant to Section 10.1(e)(i) hereof in connection
with the acquisition of certain tangible property; provided that (a)
the original principal balance of the Indebtedness secured by such
Lien constitutes not less than 80% nor more than 100% of the purchase
price of the property acquired and (B) such Lien extends only to the
property acquired with the proceeds of the Indebtedness so secured;
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(d) statutory Liens of landlords who are not subject to a
Landlord Waiver and Liens of carriers, warehousemen, mechanics,
materialmen and other Liens imposed by law or created in the ordinary
course of business and in existence less than 90 days from the date of
creation thereof for amounts not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP;
(e) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal
bonds) in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts;
(f) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere with the ordinary conduct of the business of the
Borrower or any Subsidiary and do not impair the use of the property
to which they attach to the extent that such interference or
impairment would reasonably be expected to have a Material Adverse
Effect; and
(g) Liens on real property securing Indebtedness permitted
under Section 10.1(a), (b), (e) or (g) hereof (subject to compliance
with subsection (c) above in connection with purchase money
Indebtedness).
Notwithstanding the foregoing, none of the Liens described in clause (a) above
shall be permitted to attach or relate to the assets of Bolle France, Bolle
Australia, Bolle UK or Tavister and in the event any Liens attach to assets of
Bolle France, Bolle Australia, Bolle UK or Tavister, such Liens shall not
constitute "Permitted Liens" hereunder.
SECTION 10.3 INVESTMENTS; ACQUISITIONS. Make any Acquisition or
otherwise purchase, own, invest in or otherwise acquire, directly or
indirectly, any stock or other securities, or make or permit to exist any
interest whatsoever in any other Person or permit to exist any loans or
advances to any Person, except that Borrower and its Subsidiaries may:
(a) invest in Eligible Securities;
(b) maintain investments existing as of the date hereof and
as set forth in Schedules 8.4 and 8.5 attached hereto;
(c) accept and maintain accounts receivable arising and trade
credit granted in the ordinary course of business and retain any
securities received in satisfaction or partial satisfaction thereof in
connection with accounts of financially troubled Persons to the extent
reasonably necessary in order to prevent or limit loss;
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(d) make and maintain loans and advances to and investments
in Subsidiaries which are Guarantors;
(e) consummate Permitted Acquisitions and Mergers permitted
under Section 10.4(a) hereof;
(f) make and maintain other loans, advances and investments
in an aggregate principal amount at any time outstanding not to exceed
$1,000,000.
SECTION 10.4 MERGER OR TRANSFER OF ASSETS. (a) Consolidate with or
merge into any other Person, or permit any other Person to merge into it;
provided, however, (i) any Domestic Subsidiary may merge or transfer all or any
part of its assets into or consolidate with the Borrower or any Domestic
Subsidiary directly or indirectly wholly owned by the Borrower, (ii) any Direct
Foreign Subsidiary may merge or transfer all or any part of its assets into or
consolidate with the Borrower or any Domestic Subsidiary or Direct Foreign
Subsidiary directly or indirectly wholly owned by the Borrower provided the
requirements of Article VI and Section 9.21 hereof are complied with, (iii) any
Subsidiary which is neither a Domestic Subsidiary nor a Direct Foreign
Subsidiary may merge or transfer all or any part of its assets into or
consolidate with the Borrower or any Subsidiary directly or indirectly wholly
owned by the Borrower provided the requirements of Article VI and Section 9.21
hereof are complied with, (iv) any Subsidiary may merge into another Person
that is not a Subsidiary whereby such other Person is the surviving corporation
provided that such other Person complies with all the requirements of Article
VI and Section 9.21 as if it is a newly acquired Subsidiary and that such
merger would be a Permitted Acquisition but for the Subsidiary not being the
surviving corporation and (v) the Borrower or any Subsidiary may make a
Permitted Acquisition.
(b) Sell, lease, transfer or otherwise dispose of any assets other
than (i) dispositions of inventory in the ordinary course of business, (ii)
dispositions of equipment which, in the aggregate during any Fiscal Year, have
a fair market value or book value, whichever is less, of $250,000 or less which
is not replaced by equipment having at least equivalent value, (iii)
dispositions of equipment which is replaced with equipment of like kind,
function and value, provided the replacement equipment shall be acquired prior
to or substantially contemporaneously with any disposition of the Equipment
that is to be replaced, and the replacement equipment shall be free and clear
of Liens other than Permitted Liens, (iv) dispositions of other assets which,
in the aggregate during any fiscal year, have a fair market value or book
value, whichever is less, of $250,000 or less, (v) sale or disposition for cash
of (A) the Texas Property, (B) the AAi Preferred Stock and (C) the shares of
capital stock of Eyecare Products, (vi) transfer of up to 35.71% of the shares
of the common stock of Accessories Associates received in exchange for the AAi
Preferred Stock in connection with or subsequent to the Accessories Associates
IPO, and (vii) any Equity Offering of authorized but unissued equity securities
the Net Proceeds of which are subject to the terms of Section 2.7(b) hereof
except as otherwise provided therein.
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SECTION 10.5 TRANSACTIONS WITH AFFILIATES. Other than transactions
permitted under Sections 10.3 and 10.4 or set forth on Schedule 10.5 hereto,
enter into any transaction after the Closing Date, including, without
limitation, the purchase, sale, lease or exchange of property, real or
personal, or the rendering of any service, with any Affiliate of the Borrower,
except (a) that such Persons may render services to the Borrower or its
Subsidiaries for compensation at the same rates generally paid by Persons
engaged in the same or similar businesses for the same or similar services, (b)
that the Borrower or any Subsidiary may render services to such Persons for
compensation at the same rates generally charged by the Borrower or such
Subsidiary and (c) in the ordinary course of and pursuant to the reasonable
requirements of the Borrower's (or any Subsidiary's) business consistent with
past practice of the Borrower and its Subsidiaries and upon fair and reasonable
terms no less favorable to the Borrower (or any Subsidiary) than would be
obtained in a comparable arm's-length transaction with a Person not an
Affiliate.
SECTION 10.6 COMPLIANCE WITH ERISA. With respect to any Pension Plan,
Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which
would result in a liability to the Borrower or any ERISA Affiliate in
excess of $500,000;
(b) permit the present value of all benefit liabilities under
all Pension Plans (except as provided below) to exceed the current
value of the assets of such Pension Plans allocable to such benefit
liabilities (the "Excess Liabilities Value") by more than $500,000;
(c) permit any accumulated funding deficiency in excess of
$500,000 (as defined in Section 302 of ERISA and Section 412 of the
Code) with respect to any Pension Plan, whether or not waived;
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto which results in or is likely to
result in a liability in excess of $500,000; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to
Section 502(i) of ERISA or a tax pursuant to Section 4975 of the Code
in excess of $500,000 may be imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan which liability or increase, individually or together with all
similar liabilities and increases, is in excess of $500,000; or
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(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Law and all other applicable laws
and the regulations and interpretations thereof.
SECTION 10.7 FISCAL YEAR. Change the Borrower's Fiscal Year.
-----------
SECTION 10.8 DISSOLUTION, ETC. Wind up, liquidate or dissolve
(voluntarily or involuntarily) or commence or suffer any proceedings seeking
any such winding up, liquidation or dissolution, except in connection with the
merger or consolidation of Subsidiaries into each other or into a Borrower
permitted pursuant to Section 10.4 hereof.
SECTION 10.9 HEDGING OBLIGATIONS. Incur any Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to
Hedging Obligations, except for Hedging Obligations (a) related to protection
against fluctuations in currency exchange rates in an aggregate notional amount
to be agreed upon by the Agent and the Borrower and (b) arising under Swap
Agreements agreed to in accordance with Section 9.22 hereof; provided, however,
in no event shall Hedging Obligations be incurred for speculative or investment
purposes.
SECTION 10.10 DIVIDENDS, REDEMPTIONS AND OTHER PAYMENTS. (a) Make the
AAi Payment if a Default or Event of Default is continuing on the date of or
would result from such AAi Payment, or (b) declare or pay any cash dividends
on, or make any other payment or distribution on account of, any capital stock
of any class of the Borrower (other than dividends payable in the ordinary
course of business solely in Common Stock), including, without limitation, any
class or series of the Preferred Stock now or hereafter outstanding, or (c)
purchase, redeem (whether mandatory or optional redemption) or otherwise retire
any such shares or any option, warrant or similar agreement exercisable for or
convertible into such shares (including, without limitation, shares of the
Preferred Stock or the Bolle Warrants) or interests in consideration of cash or
any debt instrument (whether or not subordinated) ("Restricted Debt") or shares
of capital stock issued by any Subsidiary of the Borrower ("Restricted Stock"),
or apply or set apart any of their assets therefor or make any other
distribution (by redemption of capital or otherwise) in respect of any such
shares in consideration of cash or Restricted Debt or Restricted Stock, or
agree to do any of the foregoing, other than (i) conversion of any of the
Borrower's securities into Common Stock which are so convertible in accordance
with their terms and (ii) dividends payable by any Subsidiary to another
Subsidiary or to the Borrower. Notwithstanding the foregoing the Series B
Preferred Stock may be redeemed in accordance with its terms, provided that (A)
at the time of such redemption, or as a result of such redemption, no Default
or Event of Default shall have occurred nor would occur, as applicable, (B) if
all of the Series B Preferred Stock is to be redeemed, an Advance can be made
under the Revolving Credit Facility without the waiver of any condition
precedent thereto to finance the entire amount of such redemption and (C) after
giving pro forma and actual effect to such Advance, the Total Revolving Credit
Commitment shall exceed Revolving Credit Outstandings by not less than
$4,000,000.
SECTION 10.11 DEFAULTS UNDER OTHER AGREEMENTS. Permit any landlord,
mortgagee, trustee under deed of trust or lienholder to lawfully declare a
default under any lease, mortgage,
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deed of trust or lien instrument on real estate owned or leased by the Borrower
or any Guarantor or permit any landlord to lawfully terminate, prior to the
expiration of its term, any leasehold interest of the Borrower or any
Guarantor, and any such default or termination (other than with respect to
leasehold interests subject to a Lease Assignment), individually or
collectively, would reasonably be expected to result in a Material Adverse
Effect.
SECTION 10.12 COMPENSATION; REIMBURSEMENT OF EXPENSES.
(a) Pay any salary, fees, and other direct and indirect
remuneration and compensation to any of its directors and executive
officers in an amount in excess of those amounts paid to directors and
executive officers of comparable companies engaged in the same general
type of business and in similar financial condition.
(b) Reimburse any stockholder, officer, director, employee or
agent of the Borrower or any Guarantor for any expenses incurred by
such Person other than reasonable expenses incurred for or on behalf
of the Borrower or any Guarantor in the ordinary course of business.
SECTION 10.13 CHANGE IN ACCOUNTANTS. Change its independent public
accountants to any Person other than Price Waterhouse, L.L.P., Deloitte &
Touche, L.L.P., KPMG Peat Marwick, L.L.P., Arthur Andersen & Co., L.L.P.,
Coopers & Lybrand, L.L.P. or Ernst & Young, L.L.P. or any successor to any
thereof as a result of their combination
SECTION 10.14 LIMITATIONS ON SALES AND LEASEBACKS. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Guarantor of real or personal property which has been or is to be sold or
transferred by the Borrower or any Guarantor to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or any
Guarantor, unless such arrangement is with respect to real property on which a
Lien is attached as permitted under Section 10.2(a), (c) or (g) prior to such
arrangement and such Lien was not attached in a related transaction or series
of related transactions or in anticipation of such arrangement.
SECTION 10.15 NEGATIVE PLEDGE CLAUSES. Enter into any agreement with
any Person other than the Agent and the Lenders pursuant to this Agreement or
any other Loan Documents which prohibits or limits the ability of any of the
Borrower or any Guarantor to create, incur, assume or suffer to exist any Lien,
security interest or encumbrance upon any of its property, assets or revenues,
whether now owned or hereafter acquired.
SECTION 10.16 CHANGE OF CONTROL. Permit, or become a party to or the
subject of any agreement, transaction or related series of transactions
pursuant to or as a result of which, (a) any Person or group of Persons, other
than Martin E. Franklin, acting in concert, acquires voting control, directly
or indirectly, whether by tender offer or in one or more negotiated block or
market transactions, of more than twenty-five percent (25%) of the shares of
the issued and outstanding Voting Stock of any class of the Borrower having
voting rights in the election of directors, or (b) during any period of up to
24 consecutive months, commencing on the Closing
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Date, individuals who at the beginning of such 24-month period were directors
of the Borrower shall cease for any reason (other than the death, disability or
retirement as a director of an officer of the Borrower serving as a director
during such period) to constitute a majority of the board of directors of the
Borrower (any of the foregoing, a "Change of Control").
SECTION 10.17 INTELLECTUAL PROPERTY. Except as set forth in Section
10.19 hereof, cause or permit any of the licenses, trademarks, patents,
copyrights, the License Agreement and other intellectual property of the
Borrower or its Subsidiaries to be sub-licensed, assigned or transferred or
subject to distributorship arrangements, other than to the Agent for the
benefit of the Lenders hereunder or, with respect to sub-licenses only, to
manufacturers and distributors of Inventory in the ordinary course of business
as currently conducted.
SECTION 10.18 PREFERRED STOCK; MANAGEMENT SERVICES AGREEMENT; SHARE
PURCHASE AGREEMENTS. Amend, supplement, revise, or otherwise alter in any
manner (i) any Certificate of Designation in effect on the Closing Date with
respect to any class of Preferred Stock, (ii) the economic terms of the
Management Services Agreement in effect on the Closing Date or (iii) the Share
Purchase Agreements in effect on either the Closing Date or an Acquisition
Date, as applicable.
SECTION 10.19 LICENSES. Other than as set forth on Schedule 10.19
hereof, grant, establish, create or permit to exist any license of, or
distributorship arrangement of, any of the intellectual property now existing
or hereafter arising which is subject to the License Agreement or otherwise
material to the business of the Borrower or any subsidiary except for (i) such
licenses granted for the limited purpose of conducting sales or marketing
promotions in the ordinary course of business of existing or new products for a
reasonable, limited time period, (ii) such licenses approved by the Required
Lenders in writing prior to the granting thereof within 30 days after request
therefor, such approval not to be unreasonably withheld, and (iii) such
licenses granted to any Domestic Subsidiary party to the Intellectual Property
Security Agreement who has delivered an appropriate Intellectual Property
Assignment executed in blank with respect to such license.
ARTICLE XI
FINANCIAL COVENANTS
Until the occurrence of the Facility Termination Date, unless the
Required Lenders shall otherwise consent in writing, the Borrower and its
Subsidiaries on a consolidated basis will not:
SECTION 11.1 CONSOLIDATED FIXED CHARGE RATIO. Permit at any time
during any Four-Quarter Period of the Borrower ending during the periods set
forth below, the Consolidated Fixed Charge Ratio to be less than the ratio set
forth opposite such period set forth below:
Closing Date through December 31, 1998 1.25 to 1.00
January 1, 1999 and thereafter 1.50 to 1.00
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SECTION 11.2 CONSOLIDATED LEVERAGE RATIO. Permit at any time during
any Four-Quarter Period of the Borrower ending during the periods set forth
below, the Consolidated Leverage Ratio at the end of each Four-Quarter Period
during such period to be equal to or less than the ratio set forth opposite
such period set forth below:
Closing Date through December 31, 1998 3.35 to 1.00
January 1, 1999 through December 30, 1999 3.00 to 1.00
December 31, 1999 and thereafter 2.50 to 1.00
SECTION 11.3 CONSOLIDATED NET WORTH. Permit at any time Consolidated
Net Worth to be less than eighty-five percent (85%) of Consolidated Net Worth
on the Closing Date, such amount to be increased as at the first day of each
Fiscal Year, beginning with the Fiscal Year commencing January 1, 1999, by an
amount equal to (a) sixty percent (60%) of Consolidated Net Income during the
immediately preceding Fiscal Year, plus (b) one hundred percent (100%) of the
Net Proceeds of any Equity Offering consummated during the immediately
preceding Fiscal Year; provided, however, in no event shall the Consolidated
Net Worth requirement be decreased as a result of a net loss of the Borrower
and its Subsidiaries (i.e., negative Consolidated Net Income) for any Fiscal
Year. Any increase calculated pursuant hereto shall be determined based upon
financial statements delivered in accordance with Section 9.1(a) hereof;
provided, however such increase shall be deemed effective as of the first day
of the Fiscal Year in which such financial statements are delivered.
SECTION 11.4 CAPITAL EXPENDITURES. Make or become committed to make
Capital Expenditures which exceed $3,250,000 in the aggregate for any Fiscal
Year of the Borrower on a non-cumulative basis, that is, the amount of Capital
Expenditures permitted to be made but not made in any Fiscal Year may not be
carried over and be permitted to be made in any subsequent Fiscal Year.
ARTICLE XII
EVENTS OF DEFAULT
SECTION 12.1 EVENTS OF DEFAULT. If any one or more of the following
events (herein called "Events of Default") shall occur for any reason
whatsoever (and whether such occurrence shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) a default shall be made in the due and punctual payment
of the principal of any Loan or Reimbursement Obligation, when and as
the same shall be due and payable whether pursuant to any provision of
Articles II or III hereof, at maturity, by acceleration or otherwise;
or
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(b) a default shall be made in the due and punctual payment
of any amount of interest on any Loan or of any fees or other amounts
payable to the Lenders, the Agent or Issuing Bank under the Loan
Documents on the date on which the same shall be due and payable; or
(c) a default shall be made in the performance or observance
of any covenant set forth in Sections 9.10, 9.11, 9.12, 9.18 or
Articles X or XI hereof; or
(d) if (i) a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the Agent
or the Borrower becomes aware of such default, or (ii) a default shall
be made in the performance or observance of, or shall occur under, any
covenant, agreement or provision contained in any of the other Loan
Documents (beyond the applicable grace period, if any, contained
therein) or in any instrument or document evidencing or creating any
obligation, guaranty, or Lien in favor of the Agent or the Lenders or
delivered to the Agent or the Lenders in connection with or pursuant
to this Agreement or any of the Obligations, or (iii) without the
written consent of the Agent, this Agreement or any other Loan
Document shall be disaffirmed or shall terminate, be terminable or be
terminated or become void, invalid or unenforceable or otherwise cease
to be in full force and effect for any reason whatsoever other than
the occurrence of the Facility Termination Date; or (iv) the Borrower
or any Subsidiary shall assert the invalidity or unenforceability of
any of the Loan Documents or (v) any event or condition shall exist
which would reasonably be likely to have a material adverse effect on
(A) the ability of the Borrower or any Guarantor to pay or perform its
obligations, liabilities or indebtedness under any Loan Document or
(B) the material rights, powers or remedies of any Lender under any
Loan Document or the validity, legality or enforceability thereof; or
(e) a default shall occur, which is not waived, (i) in the
payment of any principal, interest, premium or other amounts with
respect to any Indebtedness (other than the Obligations) of the
Borrower or of any Subsidiary, in an amount not less than $1,000,000
in the aggregate outstanding, or (ii) in the performance, observance
or fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness may have
been issued, created, assumed, guaranteed or secured by the Borrower
or any Subsidiary, and such default shall continue for more than the
period of grace, if any, therein specified, or if such default shall
permit the holder of any such Indebtedness to accelerate the maturity
thereof; or
(f) if any material representation, warranty or other
statement of fact contained herein or any other Loan Document or in
any writing, certificate, report or statement at any time furnished to
the Agent or any Lender by or on behalf of the Borrower or any
Guarantor pursuant to or in connection with this Agreement or the
other
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Loan Documents, or otherwise, shall be false or misleading in any
material respect when given or made; or
(g) if the Borrower or any Guarantor shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency, reorganization, bankruptcy, receivership
or similar law, domestic or foreign; make an assignment for the
benefit of its creditors; commence a proceeding for the appointment of
a receiver, trustee, liquidator or conservator of itself or of the
whole or any substantial part of its property; file a petition or
answer seeking reorganization or arrangement or similar relief under
the Federal bankruptcy laws or any other applicable law or statute,
Federal, state or foreign; or
(h) if a court of competent jurisdiction shall enter an
order, judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Guarantor or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approving a petition filed against the Borrower or
any Guarantor seeking reorganization or arrangement or similar relief
under the Federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state or foreign
country, province or other political subdivision, which petition is
not dismissed within sixty (60) days; or if, under the provisions of
any other law for the relief or aid of debtors, a court of competent
jurisdiction shall assume custody or control of the Borrower or any
Guarantor or of the whole or any substantial part of its properties,
which control is not relinquished within sixty (60) days; or if there
is commenced against the Borrower or any Guarantor any proceeding or
petition seeking reorganization, arrangement or similar relief under
the Federal bankruptcy laws or any other applicable law or statute of
the United States of America or any state or foreign country, province
or other political subdivision which proceeding or petition remains
undismissed for a period of sixty (60) days; or if the Borrower or any
Guarantor takes any action to indicate its consent to or approval of
any such proceeding or petition; or
(i) if (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $1,000,000 is rendered against the Borrower or any
Guarantor, or (ii) there is any attachment, injunction or execution
against any of the Borrower's or any Guarantor's properties for any
amount in excess of $1,000,000; and such judgment, attachment,
injunction or execution remains unpaid, unstayed, undischarged,
unbonded or undismissed for a period of sixty (60) days; or
(j) if the Borrower or any Guarantor shall suspend all or any
part of its operations and such suspension would reasonably be
expected to have a Material Adverse Effect; or
(k) if the Borrower or any Subsidiary shall default in the
payment of principal, interest, premium or other amounts under any
Swap Agreement and such breach shall
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continue beyond any grace period, if any, relating thereto pursuant to
its terms, or the Borrower or any Subsidiary shall disaffirm or seek
to disaffirm any Swap Agreement or any of its Hedging Obligations
thereunder; or
(l) if any default permitting the termination thereof shall
occur and be continuing under the License Agreement or if there shall
be any amendment or modification thereof in any manner materially
adverse to the interests of the Agent and the Lenders thereunder or if
the License Agreement shall terminate for any reason or the rights of
the Borrower thereunder shall be encumbered, assigned or sublicensed
(other than sublicenses to Guarantors) or transferred in any manner;
or
(m) if the Borrower shall not have sold the Texas Property
pursuant to the terms of the Texas Property Purchase Agreement on or
before April 30, 1998; or
(n) if Bolle America shall, as of the date that is
one-hundred and eighty (180) days after the Closing Date, continue to
occupy or to store or otherwise keep any Inventory (as defined in the
Security Agreement) in that certain leased facility located in Denver,
Colorado and more particularly described in Schedule 1 hereto or if
Bolle America shall fail to comply with Section 28 or Section 29 of
the Security Agreement;
then, and in any such event and at any time thereafter, if such Event of
Default or any other Event of Default shall have not been waived,
(A) either or both of the following actions
may be taken: (i) the Agent may, and at the
direction of the Required Lenders shall, declare any
obligation of the Lenders to make further Loans or
issue Letters of Credit terminated, whereupon the
obligation of each Lender to make further Loans and
of Issuing Bank to issue Letters of Credit hereunder
shall terminate immediately, and (ii) the Agent
shall at the direction of the Required Lenders, at
their option, declare by notice to the Borrower any
or all of the Obligations to be immediately due and
payable, and the same, including all interest
accrued thereon and all other Obligations of the
Borrower to the Agent and the Lenders, shall
forthwith become immediately due and payable without
presentment, demand, protest, notice or other
formality of any kind, all of which are hereby
expressly waived, anything contained herein or in
any instrument evidencing the Obligations to the
contrary notwithstanding; provided, however, that
notwithstanding the above, if there shall occur an
Event of Default under clause (g) or (h) above, then
the obligation of the Lenders to make Advances and
issue Letters of Credit hereunder shall
automatically terminate and any and all of the
Obligations shall be immediately due and payable
without the necessity of any action by the Agent or
the Required Lenders or notice to the Agent or the
Lenders;
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(B) The Borrower shall, upon demand of the
Agent or the Required Lenders, deposit cash with the
Agent in an amount equal to the amount of any Letter
of Credit Outstandings, as collateral security for
the repayment of any future drawings or payments
under such Letters of Credit, and such amounts shall
be held by the Agent pursuant to the terms of an LC
Account Agreement in the form of Exhibit R hereto;
and
(C) the Agent and the Lenders shall have
all of the rights and remedies available under the
Loan Documents or under any applicable law.
SECTION 12.2 AGENT TO ACT. In case any one or more Events of Default
shall occur and not have been waived, the Agent may, and at the direction of
the Required Lenders shall, proceed to protect and enforce their rights or
remedies either by suit in equity or by action at law, or both, whether for the
specific performance of any covenant, agreement or other provision contained
herein or in any other Loan Document, or to enforce the payment of the
Obligations or any other legal or equitable right or remedy.
SECTION 12.3 CUMULATIVE RIGHTS. No right or remedy herein conferred
upon the Lenders or the Agent is intended to be exclusive of any other rights
or remedies contained herein or in any other Loan Document, and every such
right or remedy shall be cumulative and shall be in addition to every other
such right or remedy contained herein and therein or now or hereafter existing
at law or in equity or by statute, or otherwise.
SECTION 12.4 NO WAIVER. No course of dealing between the Borrower and
any Lender or the Agent or any failure or delay on the part of any Lender or
the Agent in exercising any rights or remedies under any Loan Document or
otherwise available to it shall operate as a waiver of any rights or remedies
and no single or partial exercise of any rights or remedies shall operate as a
waiver or preclude the exercise of any other rights or remedies hereunder or of
the same right or remedy on a future occasion.
SECTION 12.5 ALLOCATION OF PROCEEDS. If an Event of Default has
occurred and not been waived, and the maturity of the Notes has been
accelerated pursuant to this Article 12, all payments received by the Agent
hereunder, in respect of any principal of or interest on the Obligations or any
other amounts payable by the Borrower hereunder shall be applied by the Agent
in the following order:
(a) amounts due to Issuing Bank and the Lenders pursuant to
Sections 3.13, 4.3, 9.14, 15.4 and 15.8 hereof;
(b) amounts due to (A) Issuing Bank pursuant to Section 4.4
hereof, and (B) to Issuing Bank and/or the Agent pursuant to Section
3.14 hereof;
(c) payments of interest on Loans and Reimbursement
Obligations;
(d) payments of principal on Loans and Reimbursement
Obligations;
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(e) payment of cash amounts to the Agent in respect of
Letters of Credit Outstandings pursuant to Section 4.2(a) and 12.1(B)
hereof;
(f) payment of Obligations owed a Lender or Lenders pursuant
to Swap Agreements;
(g) payments of all other amounts due under this Agreement,
if any, to be applied for the ratable benefit of the Lenders; and
(h) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
ARTICLE XIII
THE AGENT
SECTION 13.1 APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. The Agent (which term as used in this sentence and in
Section 13.5 and the first sentence of Section 13.6 hereof shall include its
affiliates and its own and its affiliates' officers, directors, employees, and
agents):
(a) shall not have any duties or responsibilities except
those expressly set forth in this Agreement and shall not be a trustee
or fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by the Borrower or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of
any covenants or agreements by the Borrower or any of its Subsidiaries
or the satisfaction of any condition or to inspect the property
(including the books and records) of the Borrower or any of its
Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and
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(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document,
except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 13.2 RELIANCE BY AGENT. The Agent shall be entitled to rely
upon any certification, notice, instrument, writing, or other communication
(including, without limitation, any thereof by telephone or telefacsimile)
believed by it to be genuine and correct and to have been signed, sent or made
by or on behalf of the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel for the Borrower or any of its
Subsidiaries), independent accountants, and other experts selected by the
Agent. The Agent may deem and treat the payee of any Note as the holder thereof
for all purposes hereof unless and until the Agent receives and accepts an
Assignment and Acceptance executed in accordance with Section 13.1 hereof. As
to any matters not expressly provided for by this Agreement, the Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding on all of the Lenders;
provided, however, that the Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to any Loan
Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
SECTION 13.3 DEFAULTS. The Agent shall not be deemed to have knowledge
or notice of the occurrence of a Default or Event of Default unless the Agent
has received written notice thereof (i) from the Borrower or (ii) from a Lender
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default". In the event that the Agent receives such a notice of the
occurrence of a Default or Event of Default, the Agent shall give prompt notice
thereof to the Lenders. The Agent shall (subject to Section 13.2 hereof) take
such action with respect to such Default or Event of Default as shall
reasonably be directed by the Required Lenders, provided that, unless and until
the Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interest of the Lenders.
SECTION 13.4 RIGHTS AS LENDER. With respect to its Term Loan
Commitment and Revolving Credit Commitment and the Loans made by it,
NationsBank (and any successor acting as Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Agent, and the
term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. NationsBank (and any successor
acting as Agent) and its affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
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business with the Borrower or any of its Subsidiaries or affiliates as if it
were not acting as Agent, and NationsBank (and any successor acting as Agent)
and its affiliates may accept fees and other consideration from the Borrower or
any of its Subsidiaries or affiliates for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
SECTION 13.5 INDEMNIFICATION. The Lenders agree to indemnify the Agent
(to the extent not reimbursed under Section 15.8 hereof, but without limiting
the obligations of the Borrower under such Section) ratably in accordance with
their respective Revolving Credit Commitments and Term Loan Commitments, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys' fees), or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or
asserted against the Agent (including by any Lender) in any way relating to or
arising out of any Loan Document or the transactions contemplated thereby or
any action taken or omitted by the Agent under any Loan Document; provided that
no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Person to be
indemnified. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any costs or
expenses payable by the Borrower under Section 15.8, to the extent that the
Agent is not promptly reimbursed for such costs and expenses by the Borrower.
The agreements contained in this Section 13.5 shall survive payment in full of
the Loans and all other amounts payable under this Agreement.
SECTION 13.6 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
agrees that it has, independently and without reliance on the Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under the
Loan Documents. Except for notices, reports, and other documents and
information expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition, or business of the Borrower or any of its Subsidiaries or affiliates
that may come into the possession of the Agent or any of its affiliates.
SECTION 13.7 RESIGNATION OF AGENT. The Agent may resign at any time by
giving notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent which shall be a
commercial bank organized under the laws of the United States of America having
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor, such successor shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Agent, the
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provisions of this Article XIII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
SECTION 13.8 SHARING OF PAYMENTS, ETC. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, set-off, counterclaim
or otherwise, obtain payment with respect to its Obligations (other than
pursuant to Article V) which results in its receiving more than its pro rata
share of the aggregate payments with respect to all of the Obligations (other
than any payment expressly provided hereunder to be distributed on other than a
pro rata basis and payments pursuant to Article V), then (a) such Lender shall
be deemed to have simultaneously purchased from the other Lenders a share in
their Obligations so that the amount of the Obligations held by each of the
Lenders shall be pro rata and (b) such other adjustments shall be made from
time to time as shall be equitable to insure that the Lenders share such
payments ratably; provided, however, that for purposes of this Section 13.8 the
term "pro rata" shall be determined with respect to the Term Loan Commitment
and Revolving Credit Commitment of each Lender and with respect to the Total
Credit Commitments after subtraction in each case of amounts, if any, by which
any such Lender has not funded its share of the outstanding Loans and
Obligations. If all or any portion of any such excess payment is thereafter
recovered from the Lender which received the same, the purchase provided in
this Section 13.8 shall be rescinded to the extent of such recovery, without
interest. The Borrowers expressly consents to the foregoing arrangements and
agrees that each Lender so purchasing a portion of the other Lenders'
Obligations may exercise all rights of payment (including, without limitation,
all rights of set-off, banker's lien or counterclaim) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
SECTION 13.9 FEES. The Borrower agrees to pay to the Agent, for its
individual account, an annual Agent's fee as from time to time agreed to by the
Borrower and the Agent in writing.
ARTICLE XIV
ASSIGNMENTS AND PARTICIPATIONS
SECTION 14.1 ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Loans, its Notes, and its Term Loan Commitment and Revolving
Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this
Agreement, any such partial assignment shall be in an amount at least
equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof;
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(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights
and obligations under this Agreement and the Note;
(iv) the parties to such assignment shall execute
and deliver to the Agent for its acceptance an Assignment and
Acceptance, together with any Note subject to such assignment
and a processing fee of $3,500; and
(v) an assignment (other than an assignment of 100%
of its interest) by NationsBank shall not include any portion
of the obligation to issue Letters of Credit.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder
and the assigning Lender shall, to the extent of such assignment, relinquish
its rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the
Agent and the Borrower shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of America or
a state thereof, it shall deliver to the Borrower and the Agent certification
as to exemption from deduction or withholding of Taxes in accordance with
Section 5.6.
(b) The Agent shall maintain at its address referred to in Section
15.1 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders
and the Revolving Credit Commitment and Term Loan Commitment of, and principal
amount of the Loans owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein
in the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in all
or a portion of its rights and/or obligations under this Agreement (including
all or a portion of its Term Loan Commitment and Revolving Credit Commitment or
its Loans); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such participations shall be in a
minimum amount of $2,500,000 and shall include an allocable portion of such
Lender's Participations, (iii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iv) the
participant shall be entitled to the benefit of the yield
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protection provisions contained in Article V and the right of set-off contained
in Section 15.2, and (v) the Borrowers shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
to enforce the obligations of the Borrowers relating to its Loans and its Note
and to approve any amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers requiring approval
of all the Lenders as set forth in Section 15.5 hereof).
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans
and its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any operating circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Any Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants).
ARTICLE XV
GENERAL PROVISIONS
SECTION 15.1 NOTICES. All notices shall be in writing, except as to
telephonic notices expressly permitted or required herein, and written notices
shall be delivered by hand delivery, telefacsimile, overnight courier or
certified or registered mail. Any notice shall be conclusively deemed to have
been received by any party hereto and be effective on the day on which
delivered to such party (against (except as to telephonic or telefacsimile
notice) receipt therefor or, in the case of telex, verification by return) at
the address set forth below or such other address as such party shall specify
to the other parties in writing, or if sent prepaid by certified or registered
mail return receipt requested on the third Business Day after the day on which
mailed, addressed to such party at said address:
(a) if to the Borrower:
Bolle Inc.
555 Theodore Fremd Avenue
Rye, New York 10580
Attention: Mr. Ian G. H. Ashken
Telephone: (914) 967-9400
Telefacsimile: (914) 967-9405
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with copies to:
Kane Kessler, P.C.
1350 Avenue of the Americas
New York, New York 10019
Attention: Robert L. Lawrence, Esq.
Telephone: (212) 541-6222
Telefacsimile: (212) 245-3009
(b) if to the Agent:
NationsBank, National Association
Independence Center, NC1 001-15-04
15th Floor
Charlotte, North Carolina 28255
Attention: Dana Weir, Agency Services
Telephone: (704) 388-3917
Telefacsimile: (704) 386-9923
with a copy to:
NationsBank, National Association
Corporate Banking
767 Fifth Avenue, 5th Floor
New York, New York 10153-0083
Attention: Ms. Susan Timmerman, Senior Vice President
Telephone: (212) 407-5387
Telefacsimile: (212) 751-6909
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance.
SECTION 15.2 SETOFF. Upon the occurrence and during the continuance of
any Event of Default, each Lender (and each of its affiliates) is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender (or any of its affiliates) to or for the credit or
the account of the Borrower against any and all of the Obligations of the
Borrower now or hereafter existing under this Agreement and the Note held by
such Lender, irrespective of whether such Lender shall have made any demand
under this Agreement or such Note and although such Obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 15.2 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
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SECTION 15.3 SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the expiration of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect until the Facility Termination Date, unless continuing thereafter in
accordance with their terms. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in this
Agreement, the Notes and the other Loan Documents shall inure to the benefit of
the successors and permitted assigns of the Lenders or any of them.
SECTION 15.4 EXPENSES. The Borrower agrees (a) to pay or reimburse the
Agent for all its reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of, and any
amendment, supplement or modification to, this Agreement or any of the other
Loan Documents, and the consummation of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent, (b) to pay or reimburse the Agent and
each of the Lenders for all their reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement and the other Loan Documents, including without limitation, the
reasonable fees and disbursements of counsel of the Agent and of each Lender
and any payments in indemnification (other than, with respect to any Lender,
payments of indemnification arising directly as a result of the gross
negligence or willful misconduct of such Lender) or otherwise payable by the
Lenders to the Agent pursuant to the Loan Documents and (c) to pay, indemnify
and hold the Agent and the Lenders harmless from any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
failure to pay or delay in paying, documentary, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of this Agreement or any other Loan Documents,
or consummation of any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement or any other Loan Documents.
SECTION 15.5 AMENDMENTS. Any provision of this Agreement or any other
Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrowers and the Required Lenders
(and, if Article XI or the rights or duties of the Agent are affected thereby,
by the Agent); provided that no such amendment or waiver shall, unless signed
by all the Lenders, (i) increase the Revolving Credit Commitments or Term Loan
Commitments of the Lenders, (ii) reduce the principal of or rate of interest on
any Loan or any fees or other amounts payable hereunder, (iii) postpone any
date fixed for the payment of any scheduled installment of principal of or
interest on any Loan or any fees or other amounts payable hereunder or for
termination of the Term Loan Commitment or Revolving Credit Commitment, (iv)
change the percentage of the Term Loan Commitments or the Revolving Credit
Commitments or of the unpaid principal amount of the Notes, or the number of
Lenders, which shall be required for the Lenders or any of them to take any
action under this Section 15.5 or any other provision of this Agreement, (v)
release any Guarantor or any Liens in favor of the Agent or the Lenders
covering any material portion of the Collateral or (vi) change the provisions
of Section 2.7 hereof and this Section 15.5; and provided, further, that no
such amendment or waiver that affects the
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rights, privileges or obligations of the Issuing Bank as issuer of Letters of
Credit, shall be effective unless signed in writing by the Issuing Bank;
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Agent and the Lenders, execution by the Agent shall not be deemed
conclusive evidence that the Agent has obtained the written consent of the
Required Lenders. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option
or of any Default or Event of Default.
SECTION 15.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one copy of this Agreement
containing all original, fully-executed counterpart signature pages.
SECTION 15.7 TERMINATION. The termination of this Agreement shall not
affect any rights of the Borrower, the Lenders or the Agent or any obligation
of the Borrower, the Lenders or the Agent, arising prior to the effective date
of such termination, and the provisions hereof shall continue to be fully
operative until all transactions entered into or rights created or obligations
incurred prior to such termination have been fully disposed of, concluded or
liquidated and the Facility Termination Date shall have occurred unless such
rights continue thereafter in accordance with their terms. The rights granted
to the Agent for the benefit of the Lenders hereunder and under the other Loan
Documents shall continue in full force and effect, notwithstanding the
termination of this Agreement, until the Facility Termination Date shall have
occurred unless such rights continue thereafter in accordance with their terms
or the Borrower has furnished the Lenders and the Agent with an indemnification
satisfactory to the Agent and each Lender with respect thereto. All
representations, warranties, covenants, waivers and agreements contained herein
shall survive execution hereof until the Facility Termination Date unless
otherwise provided herein. Notwithstanding the foregoing, if after receipt of
any payment pursuant to the Loan Documents of all or any part of the
Obligations, any Lender is for any reason compelled to surrender such payment
to any Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other
reason, this Agreement shall continue in full force and the Borrower shall be
liable to, and shall indemnify and hold such Lender harmless for, the amount of
such payment surrendered until such Lender shall have been finally and
irrevocably paid in full. The provisions of the foregoing sentence shall be and
remain effective notwithstanding any contrary action which may have been taken
by the Lenders in reliance upon such payment, and any such contrary action so
taken shall be without prejudice to the Lenders' rights under this Agreement
and shall be deemed to have been conditioned upon such payment having become
final and irrevocable.
SECTION 15.8 INDEMNIFICATION.
(a) In consideration of the execution and delivery of this Agreement
by the Agent and each Lender and the extension of the Term Loan Commitments,
the Revolving Credit
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Commitments and the Letter of Credit Commitments, the Borrower hereby
indemnifies, exonerates and holds the Agent and each Lender and each of their
respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
(irrespective of whether any such Indemnified Party is a party to the action
for which indemnification hereunder is sought), including reasonable attorneys'
fees, settlement costs and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, any of the Loan Documents or the matters contemplated
therein, or relating to any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Loan or supported by
any Letter of Credit, except for any such Indemnified Liabilities arising for
the account of a particular Indemnified Party by reason of the gross negligence
or willful misconduct of such Indemnified Party, and if and to the extent that
the foregoing undertaking may be unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under applicable
law. This Section 15.8 supersedes any prior agreements of the parties as to
indemnification or limits on liability and the provisions hereof shall survive
repayment of the Obligations, the occurrence of the Facility Termination Date
and the expiration or termination of this Agreement. The Borrower agrees that
no Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to it, any of its Subsidiaries, any Guarantor,
or any security holders or creditors thereof arising out of, related to or in
connection with the transactions contemplated herein, except to the extent that
such liability is found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct; provided, however, in no event shall any
Indemnified Party be liable for punitive, consequential, indirect or special
damages, as opposed to direct damages.
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 15.8 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
SECTION 15.9 HEADINGS AND REFERENCES. The headings of the Articles and
Sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of, or to affect the meaning or interpretation of
this Agreement. Words such as "hereof", "hereunder", "herein" and words of
similar import shall refer to this Agreement in its entirety and not to any
particular Section or provisions hereof, unless so expressly specified. As used
herein, the singular shall include the plural, and the masculine shall include
the feminine or a neutral gender, and vice versa, whenever the context
requires.
SECTION 15.10 SEVERABILITY. If any provision of this Agreement or the
other Loan Documents shall be determined to be illegal or invalid as to one or
more of the parties hereto, then such provision shall remain in effect with
respect to all parties, if any, as to whom such provision is neither illegal
nor invalid, and in any event all other provisions hereof shall remain
effective and binding on the parties hereto.
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SECTION 15.11 ENTIRE AGREEMENT. This Agreement, together with the
other Loan Documents, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all previous proposals,
negotiations, representations, commitments and other communications between or
among the parties, both oral and written, with respect thereto.
SECTION 15.12 AGREEMENT CONTROLS. In the event that any term of any of
the Loan Documents other than this Agreement conflicts with any term of this
Agreement, the terms and provisions of this Agreement shall control.
SECTION 15.13 USURY SAVINGS CLAUSE. Anything in this Agreement or the
Notes to the contrary notwithstanding, the obligation of the Borrower to make
payments of interest shall be subject to the limitation that payments of
interest shall not be required to be made to the extent that a Lender's receipt
thereof would not be permissible under the law or laws applicable to it
limiting rates of interest which may be charged or collected by it. Any such
amount of interest which is not paid as a result of the limitation referred to
in the preceding sentence shall be carried forward and paid by the Borrower to
such Lender on the earliest date or dates on which any interest is payable
under this Agreement and on which the receipt thereof is permissible under the
laws applicable to such Lender limiting rates of interest which may be charged
or collected by such Lender. Such payment shall be made as additional interest
for the month preceding such interest payment date. Such deferred payments
shall not bear interest.
SECTION 15.14 GOVERNING LAW; WAIVERS.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
(B) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE
OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE ON
SUCH PARTY BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT
OR OTHER LEGAL PROCESS IN ANY SUCH
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SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED
MAIL (POSTAGE PREPAID) TO THE ADDRESS OF EACH PARTY
PROVIDED BY SECTION 15.1 HEREOF, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY PARTY OR ANY PARTY'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER,
BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY
HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY AND HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
SECTION 15.15 JUDGMENT CURRENCY. The Borrower, the Agent and each
Lender hereby agree that if, in the event that a judgment is given in relation
to any sum due to the Agent or any Lender hereunder, and such judgment is given
in a currency (the "Judgment Currency") other than that in which such sum was
originally denominated (the "Original Currency"), the Borrower agrees to
indemnify the Agent or such Lender, as the case may be, to the extent that such
amount of the Original Currency which could have been purchased by the Agent in
accordance with normal banking procedures on the Business Day following receipt
of such sum is less than the sum which could have been so purchased by the
Agent had such purchase been made on the day on which such judgment was given
or, if such day is not a Business Day, on the Business Day immediately
preceding such judgment, and if the amount so purchased exceeds the amount
which could have been so purchased had such purchase been made on the day on
which such judgment was given, or if such day is not a Business Day, on the
Business Day immediately preceding such judgment, the Agent or the applicable
Lenders agree to remit such excess to the Borrower. The agreements in this
Section 15.15 shall survive payment of the Obligations.
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SECTION 15.16 ECONOMIC AND MONETARY UNION IN THE EUROPEAN COMMUNITY.
The parties confirm that, except as agreed to by all parties hereto in writing,
the occurrence or non-occurrence of an event associated with economic and
monetary union in the European Community will not have the effect of altering
any term of, or discharging or excusing performance under, this Agreement, any
other Loan Document, any Security Instrument, any Loan or transaction
contemplated by any of the foregoing, nor give a party the right to
unilaterally alter or terminate this Agreement, any other Loan Document, any
Security Instrument, any Loan or transaction contemplated by any of the
foregoing or give rise to an Event of Default or otherwise be the basis for the
effective designation of the Revolving Credit Termination Date or the Facility
Termination Date. "An event associated with economic and monetary union in the
European Community" includes, without limitation, each (and any combination) of
the following:
(a) the introduction of, changeover to or operation of a
single or unified European currency (whether known as the euro or
otherwise) ("Eurocurrency");
(b) the fixing of conversion rates between a member state's
currency and the Eurocurrency or between the currencies of member
states;
(c) the introduction of Eurocurrency as lawful currency in a
member state;
(d) the withdrawal from legal tender of any currency that,
before the introduction of Eurocurrency, was lawful currency in one of
the member states; and
(e) the disappearance or replacement of a relevant price
source for the Eurocurrency or the national currency of any member
state, or the failure of the agreed sponsor (or a successor sponsor)
to publish or display a relevant rate, index, price, page or screen.
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[SIGNATURES ON FOLLOWING PAGES.]
111
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
BORROWER:
BOLLE INC.
By: /s/ Desiree DeStefano
Name:
Title:
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the
Lenders
By: /s/ Susan Timmerman
Name:
Title:
BOLLE CREDIT AGREEMENT
Signature Page 1 of 7
<PAGE>
LENDERS:
NATIONSBANK, NATIONAL ASSOCIATION
By: /s/ Susan Timmerman
Name:
Title:
Lending Office:
NationsBank, National Association
Independence Center
NC1 001-15-04, 15th Floor
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 388-3917
Telefacsimile: (704) 386-9923
Wire Transfer Instructions:
NationsBank, National Association
Charlotte, North Carolina 28255
ABA No.: 053000196
Reference: Bolle Inc.
Account No.: 136621-22506
Attention: Corporate Credit Support
BOLLE CREDIT AGREEMENT
Signature Page 2 of 7
<PAGE>
EUROPEAN AMERICAN BANK
By: /s/ Mark J. Saeger
Name: Mark J. Saeger
Title: Vice President
Lending Office:
European American Bank
335 Madison Avenue, 17th Floor
New York, New York 10017
Attention: Angie M. Marrano,
Administrative Assistant
Telephone: (212) 503-2553
Telefacsimile: (212) 503-2667
Wire Transfer Instructions:
European American Bank
One EAB Plaza
Uniondale, New York 11555
ABA No.: 021 001 486
Reference: Bolle Inc.
Account No.: K890222220
Attention: Commercial Loans Dept.
BOLLE CREDIT AGREEMENT
Signature Page 3 of 7
<PAGE>
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Don Pullen
Name: Don Pullen
Title: V.P.
Lending Office:
101 South 5th Street
Louisville, Kentucky 40202
Attention: Etta Moore
Commercial Loan Operations
Telephone: (502) 581-6788
Telefacsimile: (502) 581-4079
Wire Transfer Instructions:
National City Bank of Kentucky
101 South 5th Street
Louisville, Kentucky 40202
ABA No.: 083-000-056
Reference: Bolle Inc.
Attention: Etta Moore
Commercial Loan Operations
BOLLE CREDIT AGREEMENT
Signature Page 4 of 7
<PAGE>
BANKBOSTON, N.A.
By: /s/ Richard J. Klouda
Name: Richard J. Klouda
Title: Director
Lending Office:
One Landmark Square
Stamford, Connecticut 06901
Attention: Jennifer Edwards
Telephone: (203) 973-1940
Telefacsimile: (203) 967-8169
Wire Transfer Instructions:
BankBoston, N.A.
ABA No.: 011100805
Reference: Bolle Inc.
Account No.: 551-74538, Connecticut Zero
Balance Account
Attention: Joan LaFleur
BOLLE CREDIT AGREEMENT
Signature Page 5 of 7
<PAGE>
CREDIT AGRICOLE INDOSUEZ
By: By:
Name: Craig Welch Name:
Title: First Vice President Title:
Lending Office:
520 Madison Avenue
New York, New York 10022
Attention: Rene LeBlanc
Telephone: (212) 418-7042
Telefacsimile: (212) 418-2228
Wire Transfer Instructions:
Citibank N.A.
New York, New York
ABA No.: 021000089
Swift: Citius33
Reference: Bolle , Inc.
Account No.: Credit Agricole Indosuez
Account # 36023853
BOLLE CREDIT AGREEMENT
Signature Page 6 of 7
<PAGE>
IMPERIAL BANK
By:
Name:
Title:
Lending Office:
9920 South La Cienega Boulevard, 14th Floor
Inglewood, California 90301
Attention: Ms. Jamie Harney
Telephone: (310) 417-5721
Telefacsimile: (310) 417-5997
Wire Transfer Instructions:
Imperial Bank
ABA No.: 122201444
Reference: Bolle Inc.
Account No.: 2405-100-540
Attention: LPIG #2405
BOLLE CREDIT AGREEMENT
Signature Page 7 of 7
<PAGE>
EXHIBIT A
APPLICABLE COMMITMENT PERCENTAGES
<TABLE>
<CAPTION>
REVOLVING APPLICABLE
TERM LOAN CREDIT TOTAL CREDIT COMMITMENT
COMMITMENT COMMITMENT COMMITMENT PERCENTAGE
<S> <C> <C> <C> <C>
NationsBank, National Association FF $3,214,285.71 $5,000,000.00 17.857142857%
National City Bank of Kentucky FF $3,214,285.71 $5,000,000.00 17.857142857%
BankBoston, N.A. FF $3.214.285.71 $5,000,000.00 17.857142857%
European American Bank FF $3,214,285.71 $5,000,000.00 17.857142857%
Credit Agricole Indosuez FF $2,571,428.58 $4,000,000.00 14.285714286%
Imperial Bank FF $2,571,428.58 $4,000,000.00 14.285714286%
TOTAL OF ALL LENDERS FF $18,000,000.00 $28,000,000.00 100.000000000%
== ============== ============== ==============
</TABLE>
A-1
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
DATED , 19
Reference is made to the Second Amended and Restated Credit Agreement
dated as of March 11, 1998 (the "Agreement") among Bolle Inc. (the "Borrower"),
the Lenders (as defined in the Agreement), and NationsBank, National
Association, as Agent for the Lenders ("Agent"), whereby the Lenders have
agreed to make certain term loan, revolving credit and letter of credit
facilities available to the Borrower (the "Credit Agreement"). Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein with the
same meanings.
(the "Assignor") and (the "Assignee") agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, WITHOUT RECOURSE, a
_______% 1 interest in and to all of the Assignor's rights and obligations
under each of the Agreements as of the Effective Date (as defined below),
including, without limitation, such percentage interest in the Loans owing to,
and Participations held by, the Assignor on the Effective Date, and the Notes
held by the Assignor.
2. The Assignor (i) represents and warrants that, as of the date
hereof, the aggregate outstanding principal amounts of the Loans owing to it
(without giving effect to assignments thereof which have not yet become
effective) are as follows: (A) $_______ of the Term Loan, (B) $______ of
Revolving Loans and (C) the aggregate principal amount of Letters of Credit in
which it is deemed to have a Participation under the Credit Agreement is
$__________; (ii) represents and warrants that it is the legal and beneficial
owner of the interests being assigned by it hereunder and that such interests
are free and clear of any adverse claim; (iii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Agreements or
any of the Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Agreements or any of the Loan
Documents or any other instrument or document furnished pursuant thereto; (iv)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Agreements or any of the Loan
Documents or any other instrument or document furnished pursuant thereto and
(v) attaches the Notes referred to in paragraph 1 above and requests that the
Agent exchange such Notes for replacement Notes dated _____________, 19__, for
the Assignor (if an assignment of less than a 100% of its interest under the
Credit Agreement) and the Assignee reflecting the amount of their respective
Term Loan
- --------
Specify percentage in not less than 9 decimal points.
B-1
<PAGE>
Commitment and Revolving Credit Commitment after consummation of the assignment
hereunder in the principal amount of $________________ payable to the order of
the Assignor, and one in the principal amount of $________________ payable to
the order of the Assignee.
3. The Assignee (i) confirms that it has received a copy of the
Agreements, together with copies of the financial statements referred to in
Section 9.1 thereof, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor, or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the
Agreements; (iii) appoints and authorizes the Agent to take such actions on its
behalf and to exercise such powers under the Loan Documents as are delegated to
the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Agreements are required
to be performed by the Lender; and (v) specifies as its address for notices the
office set forth beneath its name on the signature pages hereof.
4. The effective date for this Assignment and Acceptance shall be
_____________________________ (the "Effective Date"). Following the execution
of this Assignment and Acceptance, it will be delivered to the Agent for
acceptance and recording by the Agent.
5. Upon such acceptance and recording, as of the Effective Date, (i)
the Assignee shall be a party to each of the Agreements and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of
a Lender thereunder and under the Loan Documents and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under each of the Agreements.
6. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments under the Agreements and Notes in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest, commitment fees and letter of credit fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Agreements and the Notes for
periods prior to the Effective Date directly between themselves.
B-2
<PAGE>
7. This Assignment and Acceptance shall be governed by and construed
in accordance with, the laws of the State of New York.
[NAME OF ASSIGNOR]
By:
Name:
Title:
Notice Address:
After the Effective Date:
Outstanding Term Loan: $______________________
Outstanding Revolving Loans: $______________________
Outstanding Participations in
Letter of Credit Outstandings: $______________________
[NAME OF ASSIGNEE]
By:
Name:
Title:
Notice Address/Lending Office:
Wire transfer Instructions:
After the Effective Date:
Outstanding Term Loan: $______________________
Outstanding Revolving Loans: $______________________
Outstanding Participations in
Letter of Credit Outstandings: $______________________
B-3
<PAGE>
Accepted this ____ day of _______, 19___
NationsBank, National Association, as Agent
By:
Name:
Title:
Consented to:
Bolle Inc.
By:
Name:
Title:
B-4
<PAGE>
EXHIBIT C
FORM OF NOTICE OF APPOINTMENT (OR REVOCATION)
OF AUTHORIZED REPRESENTATIVE
Reference is hereby made to the Second Amended and Restated Credit
Agreement dated as of March 11, 1998 (the "Agreement") among Bolle Inc. (the
"Borrower"), the Lenders (as defined in the Agreement), and NationsBank,
National Association, as Agent for the Lenders ("Agent"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
Appointment. The Borrower hereby nominates, constitutes and appoints
each individual named below as an Authorized Representative under the Loan
Documents, and hereby represents and warrants that (i) set forth opposite each
such individual's name is a true and correct statement of such individual's
office (to which such individual has been duly elected or appointed), a genuine
specimen signature of such individual and an address for the giving of notice,
and (ii) each such individual has been duly authorized by the Borrower to act
as Authorized Representative under the Loan Documents:
Name and Address Office Specimen Signature
- ----------------- ------------------- --------------------
=================
- ----------------- ------------------- --------------------
=================
- ----------------- ------------------- --------------------
=================
Revocation. Borrower hereby revokes (effective upon receipt hereof by
the Agent) the prior appointment of ________________ as an Authorized
Representative.
This the ___ day of __________________, 19__.
Bolle Inc.
By:
Name:
Title:
C-1
<PAGE>
EXHIBIT D
FORM OF BORROWING NOTICE
To: NationsBank, National Association, as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Telefacsimile: (704) 386-9923
Attention: Dana Weir, Agency Services
Reference is hereby made to the Second Amended and Restated Credit
Agreement dated as of March 11, 1998 (the "Agreement") among Bolle Inc. (the
"Borrower"), the Lenders (as defined in the Agreement), and NationsBank,
National Association, as Agent for the Lenders ("Agent"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrower through its Authorized Representative hereby confirms its
prior notice of borrowing given to the Agent by telephone at __________ __.m.
on ____________, 19__ to the effect that Revolving Loans of the type and amount
set forth below be made on the date indicated:
Type of Loan Interest Effective
(Check One) Period(1) Amount(2) Date(3)
TERM LOAN SEGMENT
|_| FF LIBOR
Rate Loan
REVOLVING LOAN
|_| Base Rate Loan(4)
|_| Eurodollar Rate Loan
|_| FF LIBOR
Rate Loan
(1) For any Eurodollar Rate Loan or FF LIBOR Rate Loan, one, two,
three or six months.
(2) Must be $500,000 or a multiple of $100,000 in excess thereof for
all Revolving Loans.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
may be same Business Day in case of a Base Rate Loan.
(4) Specify Dollars or French Francs.
The Borrower hereby requests that the proceeds of Revolving Loans
described in this Borrowing Notice be made available to the Borrower as
follows: [INSERT TRANSMITTAL INSTRUCTIONS].
D-1
<PAGE>
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article 8 of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that (a) the representations and warranties set forth in Sections 8.4 and 8.5
of the Agreement shall be deemed to include and take into account any merger or
consolidation permitted under Section 10.4 of the Agreement and references
therein to Schedules 8.4 and 8.5 shall be deemed to refer to such Schedules as
amended by Supplemental Schedules 8.4 and 8.5 attached hereto, and (b) the
reference to the financial statements in Section 8.6 of the Agreement are to
those financial statements most recently delivered to you pursuant to Section
9.1 of the Agreement; and
3. After giving effect to Loans requested hereby, the sum of all
Revolving Credit Outstandings and Letter of Credit Outstandings will not exceed
the Total Revolving Credit Commitment.
Bolle Inc.
BY:
Authorized Representative
D-2
<PAGE>
Supplemental Schedule 8.4
Subsidiaries
Schedule 8.4 of the Agreement shall be amended hereby as follows (if
no amendment of Schedule 8.4 is necessary, indicate "Not Applicable"):
D-3
<PAGE>
Supplemental Schedule 8.5
Investments in Other Persons
Schedule 8.5 of the Agreement shall be amended hereby as follows (if
no amendment of Schedule 8.5 is necessary, indicate "Not Applicable"):
D-4
<PAGE>
EXHIBIT E
FORM OF GUARANTY AGREEMENT
E-1
<PAGE>
EXHIBIT F
FORM OF INTEREST RATE SELECTION NOTICE
To: NationsBank, National Association,
as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Telefacsimile: (704) 386-9923
Attention: Dana Weir, Agency Services
Reference is hereby made to the Second Amended and Restated Credit
Agreement dated as of March 11, 1998 (the "Credit Agreement") among Bolle Inc.
(the "Borrower"), each of the Lenders (as defined in the Agreement) and
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not defined herein shall have the respective
meanings therefor set forth in the Credit Agreement.
The Borrower through its Authorized Representative hereby confirms its
prior notice of a selection of a type of Loan and Interest Period given to the
Agent by telephone at __________ __.m. on _________________, 199__ to the
following effect in respect of Loans:
Type of Loan Interest Effective
(Check One) Period(1) Amount(2) Date(3)
TERM LOAN SEGMENT
|_| FF LIBOR
Rate Loan
B REVOLVING LOAN
|_| Base Rate Loan(4)
|_| Eurodollar Rate Loan
|_| FF LIBOR
Rate Loan
(1) For any Eurodollar Rate Loan or FF LIBOR Rate Loan, one, two,
three or six months.
(2) Must be $500,000 or a multiple of $100,000 in excess thereof.
(3) At least three (3) Business Days after date of telephonic notice
if a Eurodollar Rate Loan; may be same Business Day in case of a Base Rate
Loan.
(4) Specify Dollars or French Francs.
F-1
<PAGE>
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article 8 of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that (a) the representations and warranties set forth in Sections 8.4 and 8.5
of the Agreement shall be deemed to include and take into account any merger or
consolidation permitted under Section 10.4 of the Agreement and references
therein to Schedules 8.4 and 8.5 shall be deemed to refer to such Schedules as
amended by Supplemental Schedules 8.4 and 8.5 attached hereto and (b) the
reference to the financial statements in Section 8.6 of the Agreement are to
those financial statements most recently delivered to you pursuant to Section
9.1 of the Agreement; and
3. After giving effect to Loans requested hereby, the sum of all
Revolving Credit Outstandings and Letter of Credit Outstandings will not exceed
the Total Revolving Credit Commitment.
Bolle Inc.
BY:
Authorized Representative
F-2
<PAGE>
Supplemental Schedule 8.4
Subsidiaries
Schedule 8.4 of the Agreement shall be amended hereby as follows (if
no amendment to Schedule 8.4 is necessary, indicate "Not Applicable"):
F-3
<PAGE>
Supplemental Schedule 8.5
Investments in Other Persons
Schedule 8.5 of the Agreement shall be amended hereby as follows (if
no amendment of Schedule 8.5 is necessary, indicate "Not Applicable"):
F-4
<PAGE>
EXHIBIT G
FORM OF STOCK PLEDGE AGREEMENT
G-1
<PAGE>
EXHIBIT H
FORM OF MORTGAGE
H-1
<PAGE>
EXHIBIT I
FORM OF TERM NOTE
PROMISSORY NOTE
FF_______________1 __________, __________
__________, 1998
FOR VALUE RECEIVED, BOLLE INC., a Delaware corporation having its
principal place of business located in Rye, New York (the "Borrower"), hereby
promises to pay to the order of _____________________________________________2
(the "Lender"), in its individual capacity, at the office of NationsBank,
National Association, as agent for the Lenders (the "Agent"), located at
Independence Center, 101 North Tryon Street, Charlotte, North Carolina 28255
(or at such other place or places as the Agent may designate) at the times set
forth in the Second Amended and Restated Credit Agreement dated as of March 11,
1997 among the Borrower, the financial institutions party thereto
(collectively, the "Lenders") and the Agent (as amended and supplemented and in
effect from time to time, the "Credit Agreement"; all capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Credit Agreement), in lawful money of France, in immediately available funds,
the principal amount of [_________________________________]3 FRENCH FRANCS
(FF__________)1 or, if less than such principal amount, the aggregate unpaid
principal amount of the Term Loan made by the Lender to the Borrower pursuant
to the Credit Agreement on the Term Loan Termination Date or such earlier date
as may be required pursuant to the terms of the Credit Agreement, and to pay
interest from the date hereof on the unpaid principal amount hereof, in
Dollars, at said office, on the dates and at the rates provided in Article II
of the Credit Agreement. All or any portion of the principal amount of such
Loans may be prepaid as provided in the Credit Agreement.
- -------------------------------
1 Insert Lender's Term Loan Commitment in Arabic numerals.
2 Insert name of Lender in capital letters.
3 Insert Lender's Term Loan Commitment in words.
I-1-1
<PAGE>
This Note is one of the Term Notes in the aggregate principal amount
of FF_______________ referred to in the Credit Agreement and is issued pursuant
to and entitled to the benefits and security of the Credit Agreement to which
reference is hereby made for a more complete statement of the terms and
conditions upon which the Loans evidenced hereby were or are made and are to be
repaid. This Note is subject to certain restrictions on transfer or assignment
as provided in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Term
Loan upon the terms and conditions specified therein.
If payment of all sums due hereunder is accelerated under the terms of
the Credit Agreement or under the terms of the other Loan Documents executed in
connection with the Credit Agreement, the then remaining principal amount and
accrued but unpaid interest shall bear interest which shall be payable on
demand at the rates per annum set forth in Article II of the Credit Agreement,
or the maximum rate permitted under applicable law, if lower, until such
principal and interest have been paid in full. Further, in the event of such
acceleration, this Note, and all other indebtedness of the Borrower to the
Lender shall become immediately due and payable, without presentation, demand,
protest or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees and
disbursements, and interest thereon at the rates set forth above.
Interest hereunder shall be computed on the basis of a 360-day year
for the actual number of days in the interest period.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby
waive to the full extent permitted by law the benefits of all provisions of law
for stay or delay of execution or sale of property or other satisfaction of
judgment against any of them on account of liability hereon until judgment be
obtained and execution issued against any other of them and returned satisfied
or until it can be shown that the maker or any other party hereto had no
property available for the satisfaction of the debt evidenced by this
instrument, or until any other proceedings can be had against any of them, and
also their right, if any, to require the holder hereof to hold as security for
this Note any collateral deposited by any of said Persons as security. Protest,
notice of protest, notice of dishonor, dishonor, demand or any other formality
are hereby waived by all parties bound hereon.
I-1-2
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
BOLLE INC.
ATTEST: By:
Name:
By: Title:
Secretary
[SEAL]
I-1-3
<PAGE>
EXHIBIT J
FORM OF REVOLVING NOTE
PROMISSORY NOTE
(Revolving Loans)
_______________1 __________, __________
__________, 1998
FOR VALUE RECEIVED, BOLLE INC., a Delaware corporation having its
principal place of business located in Rye, New York (the "Borrower"), hereby
promises to pay to the order of
___________________________________________________2 (the "Lender"), in its
individual capacity, at the office of NationsBank, National Association, as
agent for the Lenders (the "Agent"), located at Independence Center, 101 North
Tryon Street, Charlotte, North Carolina 28255 (or at such other place or places
as the Agent may designate) at the times set forth in the Second Amended and
Restated Credit Agreement dated as of March 11, 1997 among the Borrower, the
financial institutions party thereto (collectively, the "Lenders") and the
Agent (as amended and supplemented and in effect from time to time, the "Credit
Agreement"; all capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement), in lawful money of the
United States of America with respect to Dollar Loans or France with respect to
FF Revolving Loans, in immediately available funds, the principal amount equal
to the Dollar Value of [_________________________________]3 DOLLARS
($__________)1 or, if less than such principal amount, the aggregate unpaid
principal amount of all Revolving Loans made by the Lender to the Borrower
pursuant to the Credit Agreement on the Revolving Credit Termination Date or
such earlier date as may be required pursuant to the terms of the Credit
Agreement, and to pay interest from the date hereof on the unpaid principal
amount hereof, in Dollars, at said office, on the dates and at the rates
provided in Article III of the Credit Agreement. All or any portion of the
principal amount of such Loans may be prepaid as provided in the Credit
Agreement.
- -------------------------------
1 Insert Lender's Revolving Credit Commitment in Arabic numerals.
2 Insert name of Lender in capital letters.
3 Insert Lender's Revolving Credit Commitment in words.
J-1
<PAGE>
This Note is one of the Revolving Notes in the aggregate principal
amount of $__________ referred to in the Credit Agreement and is issued
pursuant to and entitled to the benefits and security of the Credit Agreement
to which reference is hereby made for a more complete statement of the terms
and conditions upon which the Loans evidenced hereby were or are made and are
to be repaid. This Note is subject to certain restrictions on transfer or
assignment as provided in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of
Revolving Loans upon the terms and conditions specified therein.
If payment of all sums due hereunder is accelerated under the terms of
the Credit Agreement or under the terms of the other Loan Documents executed in
connection with the Credit Agreement, the then remaining principal amount and
accrued but unpaid interest shall bear interest which shall be payable on
demand at the rates per annum set forth in Article III of the Credit Agreement,
or the maximum rate permitted under applicable law, if lower, until such
principal and interest have been paid in full. Further, in the event of such
acceleration, this Note, and all other indebtedness of the Borrower to the
Lender shall become immediately due and payable, without presentation, demand,
protest or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees and
disbursements, and interest thereon at the rates set forth above.
Interest hereunder shall be computed on the basis of a 360-day year
for the actual number of days in the interest period.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby
waive to the full extent permitted by law the benefits of all provisions of law
for stay or delay of execution or sale of property or other satisfaction of
judgment against any of them on account of liability hereon until judgment be
obtained and execution issues against any other of them and returned satisfied
or until it can be shown that the maker or any other party hereto had no
property available for the satisfaction of the debt evidenced by this
instrument, or until any other proceedings can be had against any of them, and
also their right, if any, to require the holder hereof to hold as security for
this Note any collateral deposited by any of said Persons as security. Protest,
notice of protest, notice of dishonor, dishonor, demand or any other formality
are hereby waived by all parties bound hereon.
J-2
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
BOLLE INC.
ATTEST: By:
Name:
By: Title:
Secretary
[SEAL]
J-3
<PAGE>
EXHIBIT K-1
FORM OF LC ACCOUNT AGREEMENT
K-1-1
<PAGE>
EXHIBIT K-2
FORM OF CASH COLLATERAL ACCOUNT
K-2-1
<PAGE>
EXHIBIT L
FORM OF SECURITY AGREEMENT
L-1
<PAGE>
EXHIBIT M
FORM OF INTELLECTUAL PROPERTY
SECURITY AGREEMENT
M-1
<PAGE>
EXHIBIT N
FORMS OF OPINIONS OF COUNSEL TO THE BORROWER
AND THE GUARANTORS
N-1
<PAGE>
EXHIBIT O
FORM OF COMPLIANCE CERTIFICATE
As of __________, 19__
NationsBank, National Association, as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Telefacsimile: (704) 386-9923
Attention: Ms. Dana Weir, Agency Services
Reference is hereby made to the Second Amended and Restated Credit
Agreement dated as of March 11, 1998 (the "Credit Agreement") among Bolle Inc.
(the "Borrower"), the Lenders (as defined in the Credit Agreement) and
NationsBank, National Association, as Agent for the Lenders ("Agent") under the
Credit Agreement. Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Credit Agreement. The
undersigned, a duly authorized and acting Authorized Representative, hereby
certifies to you as of the date set forth above (the "Fiscal Quarter End") as
follows:
1. Calculations:
A. Compliance with Section 11.1: Consolidated Fixed
Charge Ratio
<TABLE>
<S> <C>
1. Consolidated EBITDA (sum of a, b,
c and d minus e and f): $__________
a. Consolidated Net Income $
b. Consolidated Interest Expense $
c. Tax on Income $
d. Depreciation and amortization $
e. Evaluation of Eyecare
Products investment $
f. Certain charges related to
accounting change $
2. Capital Expenditures $__________
3. Item 1 less Item 2 $__________
O-1
<PAGE>
4. Consolidated Fixed Charges
(sum of a, b, c, d and e) $__________
a. Consolidated Interest Expense $
b. Principal amount of Consoli-
dated Funded Indebtedness
due and payable during
period $
c. Dividends and distributions
paid during such period $
d. all payments under Capital
Leases made during such
period $
5. Ratio of Item 3 to Item 4 ____ to 1.00
REQUIRED: FOR THE FOUR QUARTER PERIOD ENDING AT THE FISCAL QUARTER END
DURING THE PERIODS SET FORTH BELOW, THE CONSOLIDATED FIXED CHARGE
RATIO FOR SUCH FOUR-QUARTER PERIOD SHALL NOT BE LESS THAN THE RATIO
SET FORTH OPPOSITE SUCH PERIOD:
PERIOD RATIO
CLOSING DATE THROUGH DECEMBER 31, 1998 1.25 TO 1.00
JANUARY 1, 1999 AND THEREAFTER 1.50 TO 1.00
B. Compliance with Section 11.2: Consolidated Leverage Ratio
1. Consolidated Funded Indebtedness $__________
2. Subordinated Indebtedness $_________
3. Item 1 minus Item 2 $_________
4. Consolidated EBITDA (sum of a, b,
c and d): $__________
a. Consolidated Net Income $
b. Consolidated Interest Expense $
c. Tax on Income $
d. Depreciation and amortization $
e. Evaluation of Eyecare
Products investment $
f. Certain charges related to
accounting change $
O-2
<PAGE>
5. Ratio of Item 3 to Item 4 ____ to 1.00
REQUIRED: FOR THE FOUR-QUARTER PERIOD ENDING AT THE FISCAL QUARTER END
DURING THE PERIODS SET FORTH BELOW, THE CONSOLIDATED LEVERAGE RATIO
FOR SUCH FOUR-QUARTER PERIOD SHALL NOT BE EQUAL TO OR GREATER THAN THE
RATIO SET FORTH OPPOSITE SUCH PERIOD:
PERIOD RATIO
CLOSING DATE THROUGH DECEMBER 31, 1998 3.35 TO 1.00
JANUARY 1, 1999 THROUGH DECEMBER 30, 1999 3.00 TO 1.00
DECEMBER 31, 2000 AND THEREAFTER 2.50 TO 1.00
C. Consolidated Net Worth $__________
REQUIRED: CONSOLIDATED NET WORTH MUST BE AT LEAST AN AMOUNT EQUAL TO
$[________], AND WILL BE INCREASED AS OF THE FIRST DAY OF EACH FISCAL
YEAR, BEGINNING WITH THE FISCAL YEAR COMMENCING JANUARY 1, 1999 BY AN
AMOUNT EQUAL TO ONE HUNDRED PERCENT (100%) OF (A) SIXTY PERCENT (60%)
OF CONSOLIDATED NET INCOME FOR THE IMMEDIATELY PRECEDING FISCAL YEAR
PLUS (B) ONE HUNDRED PERCENT (100%) OF THE NET PROCEEDS OF ANY EQUITY
OFFERING CONSUMMATED DURING THE IMMEDIATELY PRECEDING FISCAL YEAR;
PROVIDED HOWEVER, IN NO EVENT SHALL THE CONSOLIDATED NET WORTH
REQUIREMENT BE DECREASED AS A RESULT OF A NET LOSS OF THE BORROWER AND
ITS SUBSIDIARIES (I.E., NEGATIVE CONSOLIDATED NET INCOME) FOR ANY
FISCAL YEAR.
a. Initial Consolidated Net Worth $_____________
b. Consolidated Net Income
for preceding Fiscal Year
(beginning FY 1996) $_____________
c. Multiply Line (b.) by 60% $_____________
d. Add Lines (a.) and (c.) $_____________
e. Consolidated Net Worth
Requirement preceding year $_____________
f. New Consolidated Net Worth
Requirement (larger of Lines
e and f) $_____________
D. Capital Expenditures $_____________
</TABLE>
O-3
<PAGE>
REQUIRED: CAPITAL EXPENDITURES FOR THE IMMEDIATELY PRECEDING FISCAL
YEAR SHALL NOT BE GREATER THAN $3,250,000.
2. No Default
A. During the fiscal quarter ended as of the date set forth
above, (a) no Default or Event of Default specified in
Article 12 of the Credit Agreement has occurred or (b) the
following Default or Event of Default has occurred:
B. The Borrower proposes to take the following action with
respect to any such Default or Event of Default described
above:
(Note, if no Default or Event of Default has
occurred, insert "Not Applicable").
The undersigned Authorized Officer hereby certifies that the
information set forth above is true, correct and complete as of the date
hereof.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 19___.
BOLLE INC.
Authorized Officer
O-4
<PAGE>
EXHIBIT P
FORM OF LANDLORD WAIVER
P-1
<PAGE>
EXHIBIT Q
FORM OF LEASE ASSIGNMENT
Q-1
<PAGE>
EXHIBIT R
FORM OF COLLATERAL ASSIGNMENT OF LICENSE AGREEMENT
Q-2
<PAGE>
EXHIBIT S
FORM OF INTERCOMPANY NOTES ASSIGNMENT
S-1
<PAGE>
EXHIBIT T
FORM OF INTERCOMPANY NOTE
T-1
<PAGE>
EXHIBIT U
FORM OF SUBORDINATION AGREEMENT
U-1
<PAGE>
SCHEDULE 1
MATERIAL LEASED FACILITIES
Schedule 1-1
<PAGE>
SCHEDULE 1.1
EXISTING INDEBTEDNESS
Schedule 1.1-1
<PAGE>
SCHEDULE 2
EXISTING LETTERS OF CREDIT
Schedule 2-1
<PAGE>
SCHEDULE 6.8
LOCATIONS OF BORROWER AND GUARANTORS
Schedule 6.8-1
<PAGE>
SCHEDULE 7.1(C)
MATERIAL ADVERSE CHANGE
Schedule 7.1(c)-1
<PAGE>
SCHEDULE 8.4
SUBSIDIARIES
Schedule 8.4-1
<PAGE>
SCHEDULE 8.5
OWNERSHIP INTERESTS
Schedule 8.5-1
<PAGE>
SCHEDULE 8.6
CONTINGENT LIABILITIES
Schedule 8.6-1
<PAGE>
SCHEDULE 8.7
LIENS
Schedule 8.7-1
<PAGE>
SCHEDULE 8.10
LITIGATION
Schedule 8.10-1
<PAGE>
SCHEDULE 8.13
INTELLECTUAL PROPERTY
Schedule 8.13-1
<PAGE>
SCHEDULE 8.16
EMPLOYEE BENEFIT PLANS
Schedule 8.16-1
<PAGE>
SCHEDULE 8.18
ENVIRONMENTAL MATTERS
Schedule 8.18-1
<PAGE>
SCHEDULE 8.19
EMPLOYMENT MATTERS
Schedule 8.19-1
<PAGE>
SCHEDULE 9.5
INSURANCE
Schedule 9.5-1
<PAGE>
SCHEDULE 10.1
EXISTING INDEBTEDNESS
Schedule 10.1-1
<PAGE>
SCHEDULE 10.4
MERGERS AND CONSOLIDATIONS
Schedule 10.4-1
<PAGE>
SCHEDULE 10.5
TRANSACTIONS WITH AFFILIATES
Schedule 10.5-1
<PAGE>
SCHEDULE 10.19
LICENSES
Schedule 10.19-1
<PAGE>
(a)
SECOND AMENDED AND RESTATED GUARANTY AGREEMENT
THIS SECOND AMENDED AND RESTATED GUARANTY AGREEMENT (this "Guaranty
Agreement" or this "Guaranty"), dated as of March 11, 1998, is made by EACH OF
THE UNDERSIGNED (each a "Guarantor" and collectively the "Guarantors") to
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association, as Agent
(the "Agent") for each of the lenders now or hereafter party to the Credit
Agreement (as defined below) (each a "Lender" and collectively the "Lenders").
W I T N E S S E T H:
WHEREAS, the Lenders, the Agent and BEC Group, Inc. ("BEC"), of which
Bolle Inc. (the "Borrower") was formerly a direct subsidiary are parties to
that certain Amended and Restated Credit Agreement dated as of July 10, 1997,
(the "Existing Credit Agreement"); and
WHEREAS, pursuant to that certain Assignment Agreement and First
Amendment to the Amended and Restated Credit Agreement, dated as of the date
hereof and effective immediately prior to the effectiveness of this Guaranty
Agreement, between BEC, the Borrower, the Agent and the Lenders (the
"Assignment and Amendment"), BEC assigned to the Borrower, and the Borrower
assumed from BEC, among other liabilities, certain indebtedness owing by and
obligations of BEC under the Existing Credit Agreement such that the Borrower
became a co-borrower together with BEC under the Existing Credit Agreement;
and
WHEREAS, certain of the Guarantors are parties to that certain
Amended and Restated Guaranty Agreement dated as of July 10, 1997 with the
Agent (as amended, supplemented or otherwise modified as of the date hereof,
the "Existing Guaranty") pursuant to which the Borrower guaranteed the payment
and performance of BEC's obligations under the Existing Credit Agreement; and
WHEREAS, the Guarantors, the Agent and the Lenders desire to amend
and restate the Existing Guaranty in its entirety to reflect changes in
persons required to be parties thereto and certain changes in the Credit
Agreement; and
WHEREAS, the Guarantors are Material Subsidiaries and will materially
benefit from the loans and advances made and to be made, and the letters of
credit issued and to be issued, under the Credit Agreement;
NOW, THEREFORE, in order to induce the Lenders and the Agent to enter
into the Credit Agreement and to make and continue the loans and advances
thereunder, and to issue letters of credit for the account of the Borrower,
and in consideration of the mutual covenants and agreements contained herein,
each Guarantor, amends and restates the Existing Guaranty in its entirety as
follows:
<PAGE>
1. DEFINITIONS. All capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
2. GUARANTY. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees to the
Agent and the Lenders the payment and performance in full of the Borrower's
Liabilities (as defined below). For all purposes of this Guaranty Agreement,
"Borrower's Liabilities" means: (a) the Borrower's prompt payment in full,
when due or declared due and at all such times, of all Obligations and all
other amounts pursuant to the terms of the Credit Agreement, the Notes, and
all other Loan Documents executed in connection with the Credit Agreement and
all Hedging Obligations heretofore, now or at any time or times hereafter
owing, arising, due or payable from the Borrower to the Lenders, including
without limitation principal, interest, premium or fee (including, but not
limited to, loan fees and attorneys' fees and expenses); and (b) the
Borrower's prompt and full performance, observance and discharge of each and
every agreement, undertaking, covenant and provision to be performed, observed
or discharged by the Borrower under the Credit Agreement and all other Loan
Documents executed in connection therewith and all Swap Agreements; provided,
however, that the parties hereto, individually and collectively, expressly
acknowledge that the Credit Agreement has been given as a substitution of, and
not as a payment of, the obligations of the Borrower under the Existing Credit
Agreement and is not intended to constitute a novation of the Existing Credit
Agreement. Likewise, this Guaranty is given as a substitution of, and not as a
payment or satisfaction of, the obligations of the Guarantors under the
Existing Guaranty and is not intended to constitute a novation of the Existing
Guaranty. The Guarantors' obligations to the Agent and the Lenders under this
Guaranty Agreement are hereinafter collectively referred to as the
"Guarantors' Obligations"; provided, however, that the liability of each
Guarantor individually, with respect to the Guarantor's Obligations shall be
limited to an aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance under Section 548 of the
United States Bankruptcy Code or any comparable provisions of any applicable
state law.
Each Guarantor agrees that it is jointly and severally,
directly and primarily liable for the Borrower's Liabilities.
3. PAYMENT. If the Borrower shall default in payment or performance
of any Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and attorneys' fees and expenses),
or otherwise, when and as the same shall become due, whether according to the
terms of the Credit Agreement, by acceleration, or otherwise, or upon the
occurrence of any Default or Event of Default under the Credit Agreement that
has not been cured or waived, then any or all of the Guarantors will, upon
demand thereof by the Agent or its successors or assigns as of the date of the
Agent's demand, fully pay to the Agent, for the benefit of the Lenders,
subject to any restriction set forth in Section 2 hereof, an amount equal to
all Guarantors' Obligations then due and owing.
2
<PAGE>
4. UNCONDITIONAL OBLIGATIONS. This is a guaranty of payment and not
of collection. The Guarantors' Obligations under this Guaranty Agreement shall
be absolute and unconditional irrespective of the validity, legality or
enforceability of the Credit Agreement, the Notes or any other Loan Document
or any other guaranty of the Borrower's Liabilities, and shall not be affected
by any action taken under the Credit Agreement, the Notes or any other Loan
Document, any other guaranty of the Borrower's Liabilities, or any other
agreement between the Agent or the Lenders and the Borrower or any other
Person, in the exercise of any right or power therein conferred, or by any
failure or omission to enforce any right conferred thereby, or by any waiver
of any covenant or condition therein provided, or by any acceleration of the
maturity of any of the Borrower's Liabilities, or by the release or other
disposal of any security for any of the Borrower's Liabilities, or by the
dissolution of the Borrower or the combination or consolidation of the
Borrower into or with another entity or any transfer or disposition of any
assets of the Borrower or by any extension or renewal of the Credit Agreement,
any of the Notes or any other Loan Document, in whole or in part, or by any
modification, alteration, amendment or addition of or to the Credit Agreement,
any of the Notes or any other Loan Document, any other guaranty of the
Borrower's Liabilities, or any other agreement between the Agent or the
Lenders and the Borrower or any other Person, or by any other circumstance
whatsoever (with or without notice to or knowledge of any Guarantor) which may
or might in any manner or to any extent vary the risks of such Guarantor, or
might otherwise constitute a legal or equitable discharge of a surety or a
guarantor; it being the purpose and intent of the parties hereto that this
Guaranty Agreement and the Guarantors' Obligations hereunder shall be absolute
and unconditional under any and all circumstances and shall not be discharged
except by payment as herein provided.
5. CURRENCY AND FUNDS OF PAYMENT. Each Guarantor hereby guarantees
that the Guarantors' Obligations will be paid (i) in French Francs in the case
of each FF Loan and (ii) in all other cases in lawful currency of the United
States of America and in immediately available funds, regardless of any law,
regulation or decree now or hereafter in effect that might in any manner
affect the Borrower's Liabilities, or the rights of the Agent or any Lender
with respect thereto as against the Borrower, or cause or permit to be invoked
any alteration in the time, amount or manner of payment by the Borrower of any
or all of the Borrower's Liabilities.
6. EVENTS OF DEFAULT. In the event that (a) a Guarantor shall file a
petition to take advantage of any insolvency statute; (b) a Guarantor shall
commence or suffer to exist a proceeding for the appointment of a receiver,
trustee, liquidator or conservator of itself or of the whole or substantially
all of its property; (c) a Guarantor shall file a petition or answer seeking
reorganization or arrangement or similar relief under the Federal bankruptcy
laws or any other applicable law or statute of the United States of America or
any state or similar law of any other country; (d) a court of competent
jurisdiction shall enter an order, judgment or decree appointing a custodian,
receiver, trustee, liquidator or conservator of a Guarantor or of the whole or
substantially all of its properties, or approve a petition filed against a
Guarantor seeking reorganization or arrangement or similar relief under the
Federal bankruptcy laws or any other applicable law or statute of the United
States of America or any state or similar law
3
<PAGE>
of any other country, or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction shall assume
custody or control of a Guarantor or of the whole or substantially all of its
properties and such order, judgment, decree, approval or assumption remains
unstayed or undismissed for a period of sixty (60) consecutive days; (e) there
is commenced against a Guarantor any proceeding or petition seeking
reorganization, arrangement or similar relief under the Federal bankruptcy
laws or any other applicable law or statute of the United States of America or
any state, which proceeding or petition remains unstayed or undismissed for a
period of sixty (60) consecutive days; (f) there shall occur an Event of
Default under the Credit Agreement; or (g) any default shall occur in the
payment of amounts due hereunder (each of the foregoing an "Event of Default"
hereunder); then notwithstanding any collateral that the Lenders may possess
from Borrower, such Guarantor, any other Guarantor or any other guarantor of
the Borrower's Liabilities, or any other party, at the Agent's election and
without notice thereof or demand therefor, so long as such Event of Default
shall be continuing, the Guarantors' Obligations shall immediately become due
and payable.
7. SUITS. Each Guarantor from time to time shall pay to the Agent for
the benefit of the Lenders, on demand, at the Agent's place of business set
forth in the Credit Agreement, the Guarantors' Obligations as they become or
are declared due, and in the event such payment is not made forthwith, the
Agent or the Lenders or any of them may proceed to suit against such
Guarantor. At the Agent's election, one or more and successive or concurrent
suits may be brought hereon by the Agent against any Guarantor, whether or not
suit has been commenced against the Borrower, any other Guarantor or any other
guarantor of the Borrower's Liabilities, or any other Person and whether or
not the Agent or any Lender has taken or failed to take any other action to
collect all or any portion of the Borrower's Liabilities.
8. SET-OFF AND WAIVER. Each Guarantor waives any right to assert
against the Agent and the Lenders as a defense, counterclaim, set-off or cross
claim, any defense (legal or equitable) or other claim which each Guarantor
may now or at any time hereafter have against the Borrower, the Agent or the
Lenders, without waiving any additional defenses, set-offs, counterclaims or
other claims otherwise available to such Guarantor. If at any time hereafter
the Agent or any Lender employs counsel for advice or other representation to
enforce the Guarantors' Obligations that arise out of an Event of Default,
then, in any of the foregoing events, all of the reasonable attorneys' fees
arising from such services and all expenses, costs and charges in any way or
respect arising in connection therewith or relating thereto shall be paid by
such Guarantor to the Agent, for the benefit of the Lenders, on demand.
9. WAIVER; SUBROGATION.
(a) Each Guarantor hereby waives notice of the following events or
occurrences: (i) the Agent's acceptance of this Guaranty Agreement; (ii) the
Lenders' heretofore, now or from time to time hereafter loaning monies or
giving or extending credit to or for the benefit of the Borrower, whether
pursuant to the Credit Agreement or the Notes or any amendments,
4
<PAGE>
modifications, or supplements thereto, or replacements or extensions thereof;
(iii) the Agent, the Lenders or the Borrower heretofore, now or at any time
hereafter, obtaining, amending, substituting for, releasing, waiving or
modifying the Credit Agreement, the Notes or any other Loan Documents; (iv)
presentment, demand, default, non-payment, partial payment and protest; (v)
the Agent or the Lenders heretofore, now or at any time hereafter granting to
the Borrower (or any other party liable to the Lenders on account of the
Borrower's Liabilities) any indulgence or extensions of time of payment of the
Borrower's Liabilities; and (vi) the Agent or the Lenders heretofore, now or
at any time hereafter accepting from the Borrower, any other Guarantor, any
other guarantor of the Borrower's Liabilities or any other Person, any partial
payment or payments on account of the Borrower's Liabilities or any collateral
securing the payment thereof or the Agent settling, subordinating,
compromising, discharging or releasing the same. Each Guarantor agrees that
the Agent and each Lender may heretofore, now or at any time hereafter do any
or all of the foregoing in such manner, upon such terms and at such times as
the Agent and each Lender, in its sole and absolute discretion, deems
advisable, without in any way or respect impairing, affecting, reducing or
releasing such Guarantor from the Guarantors' Obligations, and each Guarantor
hereby consents to each and all of the foregoing events or occurrences.
(b) Each Guarantor hereby agrees that payment or performance by such
Guarantor of the Guarantors' Obligations under this Guaranty Agreement may be
enforced by the Agent on behalf of the Lenders upon demand by the Agent to
such Guarantor without the Agent being required, such Guarantor expressly
waiving any right it may have to require the Agent, to (i) prosecute
collection or seek to enforce or resort to any remedies against the Borrower
or any other Guarantor or any other guarantor of the Borrower's Liabilities,
IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH GUARANTOR
THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE AGENT, AND THE
PROVISIONS HEREOF ENFORCED BY THE AGENT, EFFECTIVE AS OF THE FIRST DATE ANY
EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT, or (ii)
seek to enforce or resort to any remedies with respect to any security
interests, Liens or encumbrances granted to the Agent by the Borrower, any
other Guarantor or any other Person on account of the Borrower's Liabilities
or any guaranty thereof. Neither the Agent nor any Lender shall have any
obligation to protect, secure or insure any of the foregoing security
interests, Liens or encumbrances on the properties or interests in properties
subject thereto. The Guarantors' Obligations shall in no way be impaired,
affected, reduced, or released by reason of the Agent's or any Lender's
failure or delay to do or take any of the acts, actions or things described in
this Guaranty including, without limiting the generality of the foregoing,
those acts, actions and things described in this Section 9.
(c) Each Guarantor further agrees with respect to this Guaranty that
such Guarantor shall have no right of subrogation, reimbursement or indemnity,
nor any right of recourse to security for the Borrower's Liabilities until the
Facility Termination Date.
5
<PAGE>
10. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date of the initial Advance under the Credit Agreement and
shall continue in full force and effect until the Facility Termination Date.
The Agent shall give each Guarantor written notice of such termination in
accordance with Section 17 hereof. This Guaranty Agreement shall be binding
upon and inure to the benefit of each Guarantor, the Agent and the Lenders and
their respective successors and assigns. Notwithstanding the foregoing, no
Guarantor may, without the prior written consent of the Agent, assign any
rights, powers, duties or obligations hereunder. Any claim or claims that the
Agent and the Lenders may at any time hereafter have against a Guarantor under
this Guaranty Agreement may be asserted by the Agent or any Lender by written
notice directed to such Guarantor.
11. REPRESENTATIONS AND WARRANTIES. Each Guarantor warrants and
represents to the Agent for the benefit of the Lenders that it is duly
authorized to execute, deliver and perform this Guaranty Agreement, that this
Guaranty Agreement is legal, valid, binding and enforceable against such
Guarantor in accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles; and that such Guarantor's execution, delivery and
performance of this Guaranty Agreement do not violate or constitute a breach
of its certificate of incorporation or other documents of corporate governance
or any agreement to which such Guarantor is a party, or any applicable laws,
in each case, which violation or breach would reasonably be expected to have a
Material Adverse Effect.
12. EXPENSES. Each Guarantor agrees to be liable for the payment of
all reasonable fees and expenses, including attorney's fees, incurred by the
Agent in connection with the enforcement of this Guaranty Agreement.
13. REINSTATEMENT. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any
time payment received by the Agent under the Credit Agreement or this Guaranty
Agreement is rescinded or must be restored for any reason.
14. COUNTERPARTS. This Guaranty Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
constitute one and the same instrument.
15. RELIANCE. Each Guarantor represents and warrants to the Agent,
for the benefit of the Agent and the Lenders, that: (a) such Guarantor has
adequate means to obtain from Borrower, on a continuing basis, information
concerning Borrower and Borrower's financial condition and affairs and has
full and complete access to Borrower's books and records; (b) such Guarantor
is not relying on the Agent or any Lender, its or their employees, agents or
other representatives, to provide such information, now or in the future; (c)
such Guarantor is executing this Guaranty Agreement freely and deliberately,
and understands the obligations and financial risk undertaken by providing
this Guaranty; (d) such Guarantor has relied solely
6
<PAGE>
on the Guarantor's own independent investigation, appraisal and analysis of
Borrower and Borrower's financial condition and affairs in deciding to provide
this Guaranty and is fully aware of the same; and (e) such Guarantor has not
depended or relied on the Agent or any Lender, its or their employees, agents
or representatives, for any information whatsoever concerning Borrower or
Borrower's financial condition and affairs or other matters material to such
Guarantor's decision to provide this Guaranty or for any counselling,
guidance, or special consideration or any promise therefor with respect to
such decision. Each Guarantor agrees that neither the Agent nor any Lender has
any duty or responsibility whatsoever, now or in the future, to provide to
such Guarantor any information concerning Borrower or Borrower's financial
condition and affairs, other than as expressly provided herein, and that, if
such Guarantor receives any such information from the Agent or any Lender, its
or their employees, agents or other representatives, such Guarantor will
independently verify the information and will not rely on the Agent or any
Lender, its or their employees, agents or other representatives, with respect
to such information.
16. TERMINATION. This Guaranty Agreement and all obligations of the
Guarantors hereunder shall terminate without delivery of any instrument or
performance of any act by any party on the Facility Termination Date.
17. NOTICE. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective on the day on which delivered to
such party (against receipt therefor) at the address set forth below or such
other address as such party shall specify to the other parties in writing (or,
in the case of telephonic notice or notice by telefacsimile (where the receipt
of such message is verified by return) expressly provided for hereunder, when
received at such telephone or telefacsimile number as may from time to time be
specified in written notice to the other parties hereto or otherwise
received), or if sent prepaid by certified or registered mail return receipt
requested on the third Business Day after the day on which mailed, or if sent
prepaid by a national overnight courier service, on the first Business Day
after the day on which delivered to such service against receipt therefor,
addressed to such party at said address:
(a) if to the Borrower c/o Bolle Inc.
or any Guarantor: 555 Theodore Fremd Avenue
Rye, New York 10580
Attention: Mr. Ian G.H. Ashken
Telephone: (914) 967-9400
Telefacsimile: (914) 967-9405
with a copy to: Kane Kessler, P.C.
1350 Avenue of the Americas
New York, New York 10019
Attention: Robert L. Lawrence, Esq.
Telephone: (212) 541-6222
Telefacsimile: (212) 245-3009
7
<PAGE>
(b) if to the Agent: NationsBank, N.A.
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Dana Weir, Agency Services
Telephone: (704) 388-3917
Telefacsimile: (704) 386-9923
with a copy to: NationsBank, National Association
Corporate Banking
767 Fifth Avenue, 5th Floor
New York, New York 10153-0083
Attention: Ms. Susan Timmerman, Senior Vice President
Telephone: (212) 407-5387
Telefacsimile: (212) 593-1083
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 17.
18. GOVERNING LAW.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(B) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE
VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(C) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY
REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) AND IN ACCORDANCE WITH
SECTION 17 HEREOF OR BY ANY
8
<PAGE>
OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN
EFFECT IN THE STATE OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF
SUCH PARTY'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE
EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION,
EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH
COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW
OR HEREAFTER, BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR
OTHERWISE, MAY BE AVAILABLE TO IT.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY
HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND EACH PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
[SIGNATURE PAGE FOLLOWS.]
9
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Second
Amended and Restated Guaranty Agreement on the day and year first written
above.
GUARANTOR:
BOLLE AMERICA, INC.
By: /s/ Desiree DeStefano
------------------------------
Name:
-----------------------------
Title:
----------------------------
ORC MANAGEMENT CORPORATION
By: /s/ Desiree DeStefano
------------------------------
Name:
-----------------------------
Title:
----------------------------
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION, as
Agent for the Lenders
By: /s/ Susan Timmerman
------------------------------
Name:
-----------------------------
Title:
----------------------------
GUARANTY AGREEMENT
Signature Page
<PAGE>
(b)
SECOND AMENDED AND RESTATED
STOCK PLEDGE AGREEMENT
THIS SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT (this
"Agreement") is made and entered into as of this 11th day of March, 1998 by and
between BOLLE INC., a Delaware corporation (the "Borrower" or the "Pledgor"),
and NATIONSBANK, NATIONAL ASSOCIATION, a national banking association, as Agent
(the "Agent") for each of the lenders (the "Lenders" and collectively with the
Agent, the "Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Lenders, the Agent and BEC Group, Inc. ("BEC"), of which
the Borrower was formerly a direct subsidiary are parties to that certain
Amended and Restated Credit Agreement dated as of July 10, 1997 (the "Existing
Credit Agreement"); and
WHEREAS, pursuant to that certain Assignment Agreement and
First Amendment to the Amended and Restated Credit Agreement, dated as of the
date hereof and effective immediately prior to the effectiveness of this
Agreement, between BEC, the Borrower, the Agent and the Lenders (the
"Assignment and Amendment"), BEC assigned to the Borrower, and the Borrower
assumed from BEC, among other liabilities, certain indebtedness owing by and
obligations of BEC under the Existing Credit Agreement such that the Borrower
became a co-borrower together with BEC under the Existing Credit Agreement; and
WHEREAS, the Pledgor is a party to that certain Amended and Restated
Stock Pledge Agreement dated as of July 10, 1997 with the Agent (as amended,
supplemented or otherwise modified, the "Existing Stock Pledge Agreement"); and
WHEREAS, the Pledgor, the Agent and the Lenders desire to amend and
restate the Existing Stock Pledge Agreement in its entirety to reflect changes
in the parties required to be parties thereto and certain changes in the Credit
Agreement; and
WHEREAS, the Pledgor desires to pledge, or continue its pledge, as
applicable, to the Secured Parties to secure the payment and performance of the
Borrower's Obligations under the Credit Agreement and the Guarantors'
obligations under the Guaranty Agreement, as applicable, (a) all of its
interest in all of the issued and outstanding shares of common stock of each of
the Pledgor's Domestic Subsidiaries and 65% of the issued and outstanding
shares of common stock of each of the Pledgor's Direct Foreign Subsidiaries
(the "Subsidiary Pledged Stock") and (b) the shares of AAi Preferred Stock
owend by it and the shares of capital stock of Eyecare Products plc owned by it
(the "Other Pledged Stock" and collectively with the Subsidiary Pledged Stock,
the "Pledged Stock"), including without limitation the Pledged Stock in such
Subsidiaries and other entities more particularly described on Schedule I
hereto (such Subsidiaries, together with all other Subsidiaries and other
entities whose capital stock may be required to be subject to a Pledge
Agreement from time to time, are hereinafter referred to collectively as the
"Pledged Entities"); and
Name: NB.BOLLE.STOCK.PLEDGE.AGREEMENT
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WHEREAS, the Pledgor will materially benefit from the loans and
advances made and to be made, and the letters of credit issued and to be
issued, under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. PLEDGE OF STOCK; OTHER COLLATERAL.
(a) As collateral security for the payment and performance of all
debts, obligations or liabilities now or hereafter existing, absolute or
contingent, each of the Guarantors under the Guaranty Agreement and of all of
the Borrower's Obligations under the Credit Agreement (collectively, the
"Secured Obligations"), and subject to Section 10 hereof, (i) the Pledgor
hereby reaffirms, regrants and continues the pledge, collateral assignment and
grant of security interest pursuant to the Existing Stock Pledge Agreement in
the Pledged Stock heretofore pledged under the Existing Pledge Agreement, and
(ii) the Pledgor hereby pledges and collaterally assigns to the Agent for the
benefit of the Lenders, and grants to the Agent for the benefit of the Lenders
pursuant to the New York Uniform Commercial Code (the "UCC") a first priority
security interest in the Pledged Stock which was not heretofore pledged under
the Existing Pledge Agreement and all of the following:
(A) all cash, securities, dividends, rights, and
other property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of the Pledged
Stock, other than dividends permitted to be retained by the Pledgor
under the Credit Agreement; and
(B) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such property
and all cash, securities, interest, dividends, rights, and other
property at any time and from time to time declared or distributed in
respect of or in exchange for any or all of the Pledged Stock.
All such Pledged Stock, certificates, instruments, cash, securities, interest,
dividends, rights and other property referred to in this Section 1, other than
dividends issued in respect of such Pledged Stock that are permitted to be
retained by the Pledgor under the Credit Agreement, are herein collectively
referred to as the "Collateral." All of the Pledged Stock is currently owned by
the Pledgor and represented by the stock certificates listed on Schedule I
hereto, which stock certificates, with stock powers duly executed in blank by
the Pledgor, have been or are being delivered to the Agent simultaneously
herewith.
(b) The Pledgor agrees to deliver all the Collateral to the Agent at
such location as the Agent shall from time to time designate by written notice
pursuant to Section 19 hereof for its custody at all times until termination of
this Agreement, together with such instruments of assignment and transfer as
requested by the Agent.
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(c) All advances, charges, costs and expenses, including reasonable
attorneys' fees, incurred or paid by the Agent or any Lender in exercising any
right, power or remedy conferred by this Agreement, or in the enforcement
thereof, shall become a part of the Secured Obligations secured hereunder and
shall be paid to the Agent for the benefit of the Lenders by the Pledgor
immediately upon demand therefor, with interest thereon until paid in full at
the Base Rate.
2. STATUS OF PLEDGED STOCK. The Pledgor hereby represents and warrants
to the Agent for the benefit of the Lenders that (a) all of the shares of the
Subsidiary Pledged Stock and, to the best knowledge of the Pledgor, all shares
of the Other Pledged Stock are validly issued and outstanding, fully paid and
nonassessable, (b) the shares of the Subsidiary Pledged Stock constitute all
the issued and outstanding shares of common stock of each of the Pledged
Entities which are Domestic Subsidiaries and 65% of the authorized, issued and
outstanding shares of common stock of each of the Pledged Entities which are
Direct Foreign Subsidiaries, (c) the shares of the Other Pledged Stock
constitute all the shares of the stock of such Pledged Entities owned by the
Pledgor, but in the case of Eyecare Products plc, not to exceed at any time 65%
of the issued and outstanding common stock thereof, (d) the Pledgor is the
registered and record and beneficial owner of its Pledged Stock, free and clear
of all Liens, charges, equities, encumbrances and restrictions on pledge or
transfer (other than the pledge hereunder and under the other Loan Documents,
applicable restrictions pursuant to federal and state securities laws and any
restrictions set forth in the Option Agreement), (e) it has full corporate
power, legal right and lawful authority to execute this Agreement and to
pledge, assign and transfer its Pledged Stock in the manner and form hereof,
(f) the pledge, assignment and delivery of its Pledged Stock to the Agent for
the benefit of the Lenders pursuant to this Agreement creates or continues, as
applicable, a valid and perfected first priority security interest in such
Pledged Stock, securing the payment of the Secured Obligations, assuming
continuous and uninterrupted possession thereof by the Agent and (g) the
Pledgor is not a party to and none of the Pledged Stock is subject to any
voting agreement or other contract or arrangement affecting the voting right of
the Pledgor with respect to the Pledged Shares other than the voting
arrangements set forth in the Option Agreement. Except as otherwise expressly
provided herein or in the Credit Agreement, none of the Pledged Stock (nor any
interest therein or thereto) shall be sold, transferred or assigned without the
Agent's prior written consent, which may be withheld for any reason. The
Pledgor covenants with the Agent for the benefit of the Lenders that it shall
at all times cause its Pledged Stock to be represented by the certificates now
and hereafter delivered to the Agent in accordance with Section 1 hereof and
that it shall cause each of its Subsidiaries not to issue any capital stock, or
securities convertible into capital stock, at any time during the term of this
Agreement other than to the Borrower or another Guarantor who shall immediately
pledge such additional capital stock to the Agent on substantially identical
terms as are contained herein.
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Agent shall be under no duty or liability with respect to the
collection, protection or preservation of the Collateral, or otherwise, beyond
the use of reasonable care in the custody and preservation thereof while in its
possession.
(b) The Pledgor agrees to pay when due all taxes, charges, Liens and
assessments against the Collateral, unless being contested in good faith by
appropriate proceedings diligently conducted
Name: NB.BOLLE.STOCK.PLEDGE.AGREEMENT
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and against which adequate reserves have been established in accordance with
GAAP applied on a Consistent Basis. Upon the failure of the Pledgor to so pay
or contest such taxes, charges, Liens or assessments, the Agent at its option
may pay or contest any of them (the Agent having the sole right to determine
the legality or validity and the amount necessary to discharge such taxes,
charges, Liens or assessments).
4. DEFAULT. Should the Pledgor fail to pay the Agent all Secured
Obligations as of the end of the Business Day on which such Secured Obligations
become due and payable and after the expiration of all grace or cure periods,
if any, and all extensions or waivers, if any, and should such failure
continue, or should any other Event of Default set forth in the Credit
Agreement occur and be continuing, or should the Pledgor fail otherwise to
comply with the terms hereof (any of the foregoing an "Event of Default"), the
Agent is given full power and authority, then or at any time thereafter, to
sell, assign and deliver or collect the whole or any part of the Collateral, or
any substitute therefor or any addition thereto, in one or more sales, with or
without any previous demands or demand of performance or, to the extent
permitted by law, notice or advertisement, in such order as the Agent may
elect; and any such sale may be made either at public or private sale at the
Agent's place of business or elsewhere, either for cash or upon credit or for
future delivery, at such price as the Agent may reasonably deem fair; and the
Agent may be the purchaser of any or all Collateral so sold and hold the same
thereafter in its own right free from any claim of the Pledgor or right of
redemption. Demands of performance, advertisements and presence of property and
sale and notice of sale are hereby waived to the extent permissible by law;
provided, however, that the Agent shall give to the Pledgor five days' notice
prior to any sale permitted under this Agreement, and the Pledgor agrees that
such notice shall constitute commercially reasonable notice. Any sale hereunder
may be conducted by an auctioneer or any officer or agent of the Agent. The
Pledgor recognizes that the Agent may be unable to effect a public sale of the
Collateral by reason of certain prohibitions contained in the Securities Act of
1933, as amended (the "Securities Act"), and applicable state law, and may be
otherwise delayed or adversely affected in effecting any sale by reason of
present or future restrictions thereon imposed by governmental authorities, and
that as a consequence of such prohibitions and restrictions the Agent may be
compelled (i) to resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire the
stock for their own account, for investment and not with a view to the
distribution or resale thereof, or (ii) to seek regulatory approval of any
proposed sale or sales, or (iii) to limit the amount of Collateral sold to any
Person or group. The Pledgor agrees and acknowledges that private sales so made
may be at prices and upon terms less favorable to the Pledgor than if such
Collateral was sold either at public sales or at private sales not subject to
other regulatory restrictions, and that the Agent has no obligation to delay
the sale of any of the Collateral for the period of time necessary to permit
the issuer of such Collateral to register or otherwise qualify them, even if
such issuer would agree to register or otherwise qualify such Collateral for
public sale under the Securities Act or applicable state law. The Pledgor
further agrees, to the extent permitted by applicable law, that the use of
private sales made under the foregoing circumstances to dispose of the
Collateral shall be deemed to be dispositions in a commercially reasonable
manner. The Pledgor hereby acknowledges that a ready market may not exist for
the Pledged Stock if they are not traded on a national securities exchange or
quoted on an automated quotation system and agrees and acknowledges that in
such event the Pledged Stock may be sold for an amount less than a pro rata
share of the fair market value of the issuer's assets minus its liabilities. In
addition to the foregoing, the Secured Parties may exercise such
Name: NB.BOLLE.STOCK.PLEDGE.AGREEMENT
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other rights and remedies as may be available under the Loan Documents, at law
(including without limitation the UCC) or in equity.
5. PROCEEDS OF SALE. The proceeds of the sale of any of the Collateral
and all sums received or collected from or on account of such Collateral shall
be applied to the payment of expenses incurred or paid by the Agent in
connection with any sale, transfer or delivery of the Collateral, to the
payment of any other costs, charges, reasonable attorneys' fees or expenses
mentioned herein, and to the payment of the Secured Obligations or any part
thereof, all in such order and manner as the Agent may determine and as
permitted by applicable law and regulation. The Agent shall, upon satisfaction
in full of all such Secured Obligations, pay any balance to the Pledgor.
6. PRESENTMENTS, ETC. The Agent shall not be under any duty or
obligation whatsoever to make or give any presentments, demands for
performances, notices of nonperformance, protests, notice of protest or notice
of dishonor in connection with any obligations or evidences of indebtedness
held thereby as collateral, or in connection with any obligations or evidences
of indebtedness which constitute in whole or in part the Secured Obligations
secured hereunder.
7. ATTORNEY-IN-FACT. The Pledgor hereby appoints the Agent as its
attorney-in-fact for the purposes of carrying out the provisions of this
Agreement and taking any action and executing any instrument which the Agent
may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest; provided, that the
Agent shall have and may exercise rights under this power of attorney only upon
the occurrence and during the continuance of a Default or an Event of Default.
Without limiting the generality of the foregoing, upon the occurrence and
during the continuance of a Default or an Event of Default, the Agent shall
have the right and power to receive, endorse and collect all checks and other
orders for the payment of money made payable to the Pledgor representing any
dividend, interest payment, principal payment or other distribution payable or
distributable in respect to the Collateral or any part thereof and to give full
discharge for the same.
8. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the Secured Parties,
and all obligations of the Pledgor hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, the Guaranty, any other Loan Document or any other
agreement or instrument relating to any of the Secured Obligations;
(b) 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 other
amendment or waiver of or any consent to any departure from the Credit
Agreement, the Guaranty, any other Loan Document or any other
agreement or instrument relating to any of the Secured Obligations;
(c) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from the Guaranty, any guaranty, for all or any of the
Secured Obligations; or
Name: NB.BOLLE.STOCK.PLEDGE.AGREEMENT
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(d) any other circumstances which might otherwise constitute
a defense available to, or a discharge of, the Pledgor in respect of
the Secured Obligations or of this Agreement.
9. WAIVER BY THE PLEDGOR. The Pledgor waives (to the extent permitted
by applicable law) any right to require any Secured Party or any other obligee
of the Secured Obligations to (a) proceed against the Borrower, any Guarantor
or any other Person or entity, (b) proceed against or exhaust any Collateral as
defined in the Credit Agreement, or (c) pursue any other remedy in its power;
and waives (to the extent permitted by applicable law) any defense arising by
reason of any disability or other defense of the Borrower, any Guarantor or any
other Person, or by reason of the cessation from any cause whatsoever of the
liability of the Borrower, any Guarantor or any other Person or entity. Until
the Facility Termination Date, the Pledgor shall not have the right of
subrogation, and the Pledgor waives any right to enforce any remedy which any
Secured Party or any other obligee of the Secured Obligations now has or may
hereafter have against any other Person and waives (to the extent permitted by
applicable law) any benefit of and any right to participate in any collateral
or security whatsoever now or hereafter held by the Agent for the benefit of
the Lenders. The Pledgor authorizes any Secured Party and any other obligee of
the Secured Obligations without notice (except notice required by applicable
law) or demand and without affecting its liability hereunder or under the Loan
Documents from time to time to: (i) take and hold security, other than the
Collateral herein described, for the payment of such Secured Obligations or any
part thereof, and exchange, enforce, waive and release the Collateral herein
described or any part thereof or any such other security; and (ii) apply such
Collateral or other security and direct the order or manner of sale thereof as
such Secured Party or obligee in its discretion may determine.
The Agent may at any time deliver (without representation, recourse or
warranty) the Collateral or any part thereof to the Pledgor and the receipt
thereof by the Pledgor shall be a complete and full acquittance for the
Collateral so delivered, and the Secured Parties shall thereafter be discharged
from any liability or responsibility therefor.
10. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to any of the
Pledged Stock shall be subject to the pledge hereunder except for dividends
permitted to be retained by the Pledgor under the Credit Agreement. So long as
no Default or Event of Default shall have occurred and be continuing, any such
dividends may be retained by the Pledgor free from any Liens hereunder.
Following the occurrence and during the continuance of any Default or Event of
Default, all dividends shall be promptly delivered to the Agent (together, if
the Agent shall request, with stock powers or instruments of assignment duly
executed in blank affixed to any capital stock or other negotiable document or
instrument so distributed) to be held, released or disposed of by it hereunder
or, at the option of the Agent, to be applied to the Secured Obligations hereby
secured as they become due.
(b) So long as no Default or Event of Default shall have occurred and
be continuing, the registration of the Collateral in the name of the Pledgor
shall not be changed and the Pledgor shall be entitled to exercise all voting
and other rights and powers pertaining to the Collateral for all purposes not
inconsistent with the terms hereof.
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(c) Upon the occurrence and during the continuance of any Default or
Event of Default, at the option of the Agent, all rights of the Pledgor to
receive and retain dividends upon the Collateral shall cease and shall
thereupon be vested in the Agent for the benefit of the Lenders.
(d) Upon the occurrence and during the continuance of any Default or
Event of Default, at the option of the Agent, all rights of the Pledgor to
exercise the voting or consensual rights and powers which it is authorized to
exercise pursuant to subsection (b) above shall cease and the Agent may
thereupon (but shall not be obligated to), at its request, cause such
Collateral to be registered in the name of the Agent or its nominee or agent
for the benefit of the Lenders and exercise such voting or consensual rights
and powers as appertain to ownership of such Collateral, and to that end the
Pledgor hereby appoints the Agent as its proxy, with full power of
substitution, to vote and exercise all other rights as a shareholder with
respect to such Pledged Stock hereunder upon the occurrence and during the
continuance of any Default or Event of Default, which proxy is coupled with an
interest and is irrevocable prior to termination of this Agreement, and the
Pledgor hereby agrees to provide such further proxies as the Agent may request;
provided, however, that the Agent in its discretion may from time to time
refrain from exercising, and shall not be obligated to exercise, any such
voting or consensual rights or such proxy.
11. POWER OF SALE. Until the Facility Termination Date, the power of
sale and other rights, powers and remedies granted to the Agent for the benefit
of the Lenders hereunder shall continue to exist and may be exercised by the
Agent at any time and from time to time, upon the occurrence and during the
continuance of an Event of Default, irrespective of the fact that any Secured
Obligations or any part thereof may have become barred by any statute of
limitations or that the liability of the Pledgor may have ceased.
12. OTHER RIGHTS. The rights, powers and remedies given to the Agent
for the benefit of the Lenders by this Agreement shall be in addition to all
rights, powers and remedies given to any Secured Party by virtue of any statute
or rule of law. Any forbearance or failure or delay by the Agent in exercising
any right, power or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any right, power
or remedy hereunder shall not preclude the further exercise thereof; and every
right, power and remedy of the Secured Parties shall continue in full force and
effect until such right, power or remedy is specifically waived by the Required
Lenders by an instrument in writing.
13. FURTHER ASSURANCES. The Pledgor agrees at its own expense to do
such further acts and things, and to execute and deliver such additional
conveyances, assignments, financing statements, agreements and instruments, as
the Agent may at any time reasonably request in connection with the
administration or enforcement of this Agreement or related to the Collateral or
any part thereof or in order better to assure and confirm unto the Agent its
rights, powers and remedies for the benefit of the Lenders hereunder. The
Pledgor hereby consents and agrees that the issuers of or obligors in respect
of the Collateral shall be entitled to accept the provisions hereof as
conclusive evidence of the right of the Agent, on behalf of the Lenders, to
exercise its rights hereunder with respect to the Collateral, notwithstanding
any other notice or direction to the contrary heretofore or hereafter given by
the Pledgor or any other Person to any of such issuers or obligors.
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14. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto, and to their respective successors and assigns, except
that the Pledgor shall not be permitted to assign this Agreement or any
interest herein or in the Collateral, or any part thereof, or otherwise pledge,
encumber or grant any option with respect to the Collateral, or any part
thereof, or any cash or property held by the Agent as Collateral under this
Agreement. All references herein to the Agent shall include any successor
thereof, each Lender and any other obligees from time to time of the
Obligations.
15. SWAP AGREEMENTS. All Hedging Obligations of the Pledgor shall be
deemed to be Secured Obligations secured hereby, and each Lender or affiliate
of a Lender party to any Swap Agreement shall be deemed to be a Secured Party
hereunder.
16. SEVERABILITY. In case any Lien, security interest or other right
of any Secured Party or any provision hereof shall be held to be invalid,
illegal or unenforceable, such invalidity, illegality or unenforceability shall
not affect any other Lien, security interest or other right granted hereby or
provision hereof.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
18. TERMINATION. This Agreement and all obligations of the Pledgor
hereunder shall terminate without delivery of any instrument or performance of
any act by any party on the Facility Termination Date. Upon such termination of
this Agreement, the Agent shall, at the sole expense of the Pledgor, deliver to
the Pledgor the certificates evidencing their respective shares of Pledged
Stock (and any other property received as a dividend or distribution or
otherwise in respect of such Pledged Stock), together with any cash then
constituting the Collateral, not then sold or otherwise disposed of in
accordance with the provisions hereof and take such further actions as may be
necessary to effect the same.
19. INDEMNIFICATION. The Pledgor hereby covenants and agrees to pay,
indemnify, and hold the Agent and each Lender harmless from and against any and
all other out-of-pocket liabilities, costs, expenses or disbursements of any
kind or nature whatsoever arising in connection with any claim or litigation by
any Person resulting from the execution, delivery, enforcement, performance and
administration of this Agreement or the Loan Documents, or the transactions
contemplated hereby or thereby, or in any respect relating to the Collateral or
any transaction pursuant to which the Pledgor has incurred any Secured
Obligation (all the foregoing, collectively, the "Indemnified Liabilities");
provided, however, that the Pledgor shall have no obligation hereunder with
respect to Indemnified Liabilities arising from the willful misconduct or gross
negligence of the Agent or any Lender. The agreements in this subsection shall
survive repayment of all Secured Obligations, termination or expiration of this
Agreement and occurrence of the Facility Termination Date.
20. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective on the day on which delivered to
such party (against receipt therefor) at the address set forth below or such
other address as such party shall specify to the other parties in writing
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(or, in the case of telephonic notice or notice by telefacsimile (where the
receipt of such message is verified by return) expressly provided for
hereunder, when received at such telephone or telefacsimile number as may from
time to time be specified in written notice to the other parties hereto or
otherwise received), or if sent prepaid by certified or registered mail return
receipt requested on the third Business Day after the day on which mailed, or
if sent prepaid by a national overnight courier service, on the first Business
Day after the day on which delivered to such service against receipt therefor,
addressed to such party at said address:
(a) if to the Pledgor: c/o Bolle Inc.
555 Theodore Fremd Avenue
Rye, New York 10580
Attention: Mr. Ian G.H. Ashken
Telephone: (914) 967-9400
Telefacsimile: (914) 967-9405
with a copy to: Kane Kessler, P.C.
1350 Avenue of the Americas
New York, New York 10019
Attention: Robert L. Lawrence, Esq.
Telephone: (212) 541-6222
Telefacsimile: (212) 245-3009
(b) if to the Agent: NationsBank, N.A.
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Dana Weir, Agency Services
Telephone: (704) 388-3917
Telefacsimile: (704) 386-9923
with a copy to: NationsBank, N.A.
Corporate Banking
767 Fifth Avenue, 5th Floor
New York, New York 10153-0083
Attention: Ms. Susan Timmerman,
Senior Vice President
Telephone: (212) 407-5387
Telefacsimile: (212) 593-1083
Name: NB.BOLLE.STOCK.PLEDGE.AGREEMENT
Doc No: 190344 (FINAL)
9
<PAGE>
21. GOVERNING LAW; WAIVERS.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE.
(B) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE
OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PARTY PROVIDED
IN SECTION 15.1 OF THE CREDIT AGREEMENT OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE
OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF
SUCH PARTY'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT
PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER,
BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
Name: NB.BOLLE.STOCK.PLEDGE.AGREEMENT
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DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH
THE FOREGOING, EACH PARTY HEREBY AGREES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND EACH PARTY HEREBY WAIVES, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE
THAT EACH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
[SIGNATURE PAGE FOLLOWS.]
Name: NB.BOLLE.STOCK.PLEDGE.AGREEMENT
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<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Second Amended
and Restated Stock Pledge Agreement on the day and year first written above.
PLEDGOR:
BOLLE INC.
By: /s/ Desiree DeStefano
Name:
Title:
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION, as Agent
for the Secured Parties
By: /s/ Susan Timmerman
Name:
Title:
SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
SIGNATURE PAGE 1 OF 1
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
No. of Shares No. of Shares
Name of Subsidiary Name of Pledgor Class of Stock Authorized Issued
- ------------------ --------------- -------------- ---------- ------
<S> <C> <C> <C> <C>
Bolle America, Inc. Borrower Common Stock 1,500 100
ORC Management Borrower Common Stock 1,500 1,000
Corporation
Tavister Limited Borrower Ordinary 200,000 100
Eyecare Products plc Borrower Ordinary ________ ________
Foster Grant Borrower Series A ________ ________
Holdings, Inc. Redeemable
Non-Voting
Preferred
Bolle (Canada) Inc. Borrower Common unlimited 10,000
<CAPTION>
No. of Shares No. of Certificate Nos.
Name of Subsidiary Outstanding Shares Pledged for Pledged Shares
- ------------------ ----------- ----------------- ------------------
<S> <C> <C> <C>
Bolle America, Inc. 100 100 3
ORC Management 1,000 1,000 [2]
Corporation
Tavister Limited 100 65 2
Eyecare Products plc _________ 20,696,113 [D02696, L04100,
L04101 abd L04102]
Foster Grant _________ 100 ___________
Holdings, Inc.
Bolle (Canada) Inc. 10,000 10,000 3 and 4
</TABLE>
<PAGE>
(c)
LC ACCOUNT AGREEMENT
THIS LC ACCOUNT AGREEMENT (the "Agreement") dated as of this 11th day
of March, 1998, and made between BOLLE INC., a Delaware corporation (the
"Borrower" or the "Pledgor"), and NATIONSBANK, NATIONAL ASSOCIATION, a national
banking association, as Agent (in such capacity herein and together with any
successors in such capacity, the "Agent") for each of the lenders (the
"Lenders" and together with the Agent, the "Secured Parties") now or hereafter
party to the Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Lenders, the Agent and BEC Group, Inc. ("BEC"), of which
the Borrower was formerly a direct subsidiary are parties to that certain
Credit Agreement dated as of July 10, 1997, (the "Existing Credit Agreement");
and
WHEREAS, pursuant to that certain Assignment Agreement and First
Amendment to the Amended and Restated Credit Agreement, dated as of the date
hereof and effective immediately prior to the effectiveness of this Agreement,
between BEC, the Borrower, the Agent and the Lenders (the "Assignment and
Amendment"), BEC assigned to the Borrower, and the Borrower assumed from BEC,
among other liabilities, certain indebtedness owing by and obligations of BEC
under the Existing Credit Agreement such that the Borrower became a co-borrower
together with BEC under the Existing Credit Agreement; and
WHEREAS, the Pledgor, the Lenders, and the Agent have entered into
that certain Second Amended and Restated Credit Agreement dated as of the date
hereof among the Pledgor, the Agent and the Lenders (as from time to time
amended, supplemented or restated, the "Credit Agreement") pursuant to which
the Lenders have agreed to make certain credit facilities available to the
Borrower and to issue certain Letters of Credit; and
WHEREAS, as a condition precedent to the Lenders' obligations to make
the Loans or to issue Letters of Credit, the Pledgor is required to execute and
deliver to the Agent a copy of this Agreement on or before the Closing Date;
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained herein, the Pledgor and the Agent hereby
agree as follows:
1. DEFINITIONS. The following capitalized terms used in this Agreement
shall have the following meanings notwithstanding any definition thereof in the
Credit Agreement. Other capitalized terms used but not defined herein shall
have the meanings therefor set forth in the Credit Agreement.
"Collateral" means (a) all funds from time to time on deposit in the
LC Account; (b) all Investments and all certificates and instruments from time
to time representing or evidencing such Investments; (c) all notes,
certificates of deposit, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Agent for or on behalf of
the Pledgor in
Name: NB BOLLE LC ACCOUNT AGREEMENT
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substitution for or in addition to any or all of the Collateral described in
clause (a) or (b) above; (d) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the Collateral described in
clause (a), (b) or (c) above; and (e) to the extent not covered by clauses (a)
through (d) above, all proceeds of any or all of the foregoing Collateral.
"Investments" means those investments, if any, made by the Agent
pursuant to Section 5 hereof.
"LC Account" means the cash collateral account established and
maintained pursuant to Section 2 hereof.
"Secured Obligations" means (i) all Obligations of the Pledgor now
existing or hereafter arising under or in respect of the Credit Agreement or
the Notes (including, without limitation, the Pledgor's obligation to pay
principal and interest and all other charges, fees, expenses, commissions,
reimbursements, indemnities and other payments related to or in respect of the
obligations contained in the Credit Agreement or the Notes) or any documents or
agreement related to the Credit Agreement or the Notes; and (ii) without
duplication, all obligations of the Pledgor now or hereafter existing under or
in respect of this Agreement, including, without limitation, with respect to
all charges, fees, expenses, commissions, reimbursements, indemnities and other
payments related to or in respect of the obligations contained in this
Agreement.
2. LC ACCOUNT; CASH COLLATERALIZATION OF LETTERS OF CREDIT.
(i) At any time, in the Agent's sole discretion, the Agent
shall establish and maintain at its offices at 101 North Tryon Street,
Charlotte, North Carolina, in its name and under its sole dominion and
control, a cash collateral account designated as Bolle Inc. Cash LC
Account (the "LC Account").
(ii) In the event that the Pledgor delivers to the Agent an
amount equal to the maximum amount remaining undrawn or unpaid under
any Letters of Credit either (A) as required pursuant to Article XII
of the Credit Agreement or (B) as otherwise agreed by the parties
hereto to provide cash collateral for the undrawn amount of any Letter
of Credit, the Agent shall deposit such amount into the LC Account to
be held pursuant to the terms of this Agreement. Upon a drawing under
the Letters of Credit in respect of which any amounts described above
have been deposited in the LC Account, the Agent shall apply such
amounts to reimburse NationsBank for the amount of such drawing. In
the event the Letters of Credit are canceled or expire or in the event
of any reduction in the maximum amount available at any time for
drawing under such Letters of Credit (the "Maximum Available Amount"),
the Agent shall apply the amount then in the LC Account less the
Maximum Available Amount immediately after such cancellation,
expiration or reduction, if any, first, to the cash collateralization
of the Letters of Credit if the Pledgor has failed to pay all or a
portion of the maximum amounts described in the first sentence of this
clause (ii) above, second, to the
Name: NB BOLLE LC ACCOUNT AGREEMENT
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<PAGE>
payment in full of the outstanding Secured Obligations and third, the
balance, if any, to the Pledgor or as otherwise required by law.
(iii) Interest and other income received in respect of
Investments of any amounts deposited in the LC Account pursuant to
clause (ii) of this Section 2 shall be held by the Agent as additional
Collateral hereunder.
3. PLEDGE; SECURITY FOR SECURED OBLIGATIONS. The Pledgor hereby grants
and pledges to the Agent, for itself and on behalf of the Secured Parties, a
first priority lien and security interest in the Collateral now existing or
hereafter arising or acquired, as collateral security for the prompt payment in
full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy or
the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code), of all Secured Obligations.
4. DELIVERY OF COLLATERAL. The Collateral shall be delivered to the
Agent, for the benefit of the Lenders, in the form of immediately available
funds.
5. INVESTING OF AMOUNTS IN THE LC ACCOUNT; AMOUNTS HELD BY THE AGENT.
Cash held by the Agent in the LC Account shall not be invested or reinvested
except as provided in this Section 5.
(i) Subject to the remedies and other rights provided in
Section 11 hereof and provided that the lien and security interest in
favor of the Agent and Secured Parties remains perfected and so long
as no Event of Default shall have occurred and be continuing, any
funds on deposit in the LC Account shall be invested by the Agent in
cash equivalents.
(ii) The Agent shall have no responsibility and the Pledgor
hereby agrees to hold the Agent and the Lenders harmless for any loss
in the value of the Collateral resulting from a fluctuation in
interest rates or otherwise. Any interest on Investments permitted
hereunder and the net proceeds of the sale or payment of any such
Investments shall constitute part of the Collateral and be held in the
LC Account by the Agent.
6. REPRESENTATIONS AND WARRANTIES. In addition to its representations
and warranties made pursuant to Article VIII of the Credit Agreement, the
Pledgor represents and warrants to the Agent (for itself and as agent on behalf
of the Lenders), that the following statements are true, correct and complete:
(i) The Pledgor will be the legal and beneficial owner of the
Collateral free and clear of any Lien except for the lien and security
interest created by this Agreement and the other Loan Documents and
Permitted Liens in favor of Government Authorities;
Name: NB BOLLE LC ACCOUNT AGREEMENT
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(ii) The pledge and assignment of the Collateral pursuant to
this Agreement creates a valid and perfected first priority security
interest in the Collateral, securing the payment of the Secured
Obligations.
7. FURTHER ASSURANCES. The Pledgor agrees that at any time and from
time to time, at the Pledgor's expense, the Pledgor will promptly execute and
deliver to the Agent any further instruments and documents, and take any
further actions, that may be necessary or that the Agent may reasonably request
in order to perfect and protect any security interest granted or purported to
be granted hereby or to enable the Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
8. TRANSFERS AND OTHER LIENS. The Pledgor agrees that it will not (a)
sell or otherwise dispose of any of the Collateral, or (b) create or permit to
exist any Lien upon or with respect to any of the Collateral, except for the
Lien and security interest created by this Agreement and the other Loan
Documents and Permitted Liens in favor of Government Authorities.
9. THE AGENT APPOINTED ATTORNEY-IN FACT. Upon the occurrence and
during the continuation of an Event of Default, the Pledgor hereby appoints the
Agent as its attorney-in-fact, with full authority in the place and stead of
the Pledgor and in the name of the Pledgor or otherwise, from time to time in
the Agent's reasonable discretion to take any action and to execute any
instrument which the Agent may reasonably deem necessary or advisable to
accomplish the purposes of the Agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the Pledgor or
either of them representing any payment, dividend, or other distribution in
respect of the Collateral or any part thereof and to give full discharge for
the same. In performing its functions and duties under this Agreement, the
Agent shall act solely for the Secured Parties and the Agent has not assumed
nor shall be deemed to have assumed any obligation towards or relationship of
agency or trust with or for the Pledgor.
10. THE AGENT MAY PERFORM. If Pledgor fails to perform any agreement
contained herein, after notice to Pledgor, the Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Agent incurred in
connection therewith shall be payable by Pledgor under Section 13 hereof.
11. STANDARD OF CARE; NO RESPONSIBILITY FOR CERTAIN MATTERS. In
dealing with the Collateral in its possession, the Agent shall exercise the
same care which it would exercise in dealing with similar collateral property
pledged by others in transactions of a similar nature, but it shall not be
responsible for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the Agent has or is deemed to have knowledge of such
matters, (b) taking any steps to preserve rights against any parties with
respect to any Collateral (other than steps taken in accordance with the
standard of care set forth above to maintain possession of the Collateral), (c)
the collection of any proceeds, (d) any loss resulting from Investments made
pursuant to Section 4 hereof, or (e) determining (x) the correctness of any
statement or calculation made by the Pledgor in any written instructions, or
(y) whether any deposit in the LC Account is proper.
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<PAGE>
12. REMEDIES UPON DEFAULT; APPLICATION OF PROCEEDS. If the Borrower
shall fail to perform any action required hereunder or shall otherwise breach
any term or provision hereof (a "Default" hereunder) which Default shall not
have been waived in accordance with Section 15.5 of the Credit Agreement:
(i) The Agent may and shall at the request of the Required
Lenders exercise in respect of the Collateral, in addition to other
rights and remedies provided for herein otherwise available to it, all
the rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") as in effect in the state in
which the Collateral is located at that time, and the Agent may,
without notice except as specified below, sell the Collateral or any
part thereof in one or more parcels at public or private sale, at any
exchange or broker's board or at any of the Agent's offices or
elsewhere, for cash, on credit or for future delivery, and at such
price or prices, and upon such other terms as the Agent may deem
commercially reasonable. Pledgor agrees that, to the extent notice of
sale shall be required by law, at least ten (10) days' notice to
Pledgor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. The Agent shall not be obligated to make any sale of the
Collateral regardless of notice of sale having been given. The Agent
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(ii) In addition to the remedies set forth in part (i) above
and subject to the provisions of Section 2(ii) hereof, any cash held
by the Agent as Collateral and all cash proceeds received by the Agent
in respect of any sale of, collection from, or other realization upon
all or part of the Collateral shall be applied (after payment of any
amounts payable to the Agent pursuant to Section 12 hereof) by the
Agent to pay the Secured Obligations pursuant to Article XII of the
Credit Agreement.
13. EXPENSES. In addition to any payments of expenses of the Agent
pursuant to the Credit Agreement or the other Loan Documents, the Pledgor
agrees to pay promptly to the Agent all the costs and expenses, including
reasonable attorneys fees and expenses, which the Agent may incur in connection
with (a) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (b) the exercise or enforcement
of any of the rights of the Agent hereunder, or (c) the failure by the Pledgor
to perform or observe any of the provisions hereof.
14. NO DELAYS; WAIVER, ETC. No delay or failure on the part of the
Agent in exercising, and no course of dealing with respect to, any power or
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Agent of any power or right hereunder preclude other or
further exercise thereof or the exercise of any other power or right. The
remedies herein provided are to the fullest extent permitted by law cumulative
and are not exclusive of any remedies provided by law.
Name: NB BOLLE LC ACCOUNT AGREEMENT
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<PAGE>
15. AMENDMENTS, ETC. No amendment, modification, termination or waiver
of any provision of this Agreement, or consent to any departure by the Pledgor
therefrom, shall in any event be effective without the written concurrence of
the Agent.
16. NOTICES. Except as otherwise specifically provided herein, all
notices which are to be sent to the Pledgor or Agent shall be given in
accordance with the Credit Agreement.
17. CONTINUING SECURITY INTEREST; TERMINATION. This Agreement shall
create a continuing security interest in the Collateral and shall (a) remain in
full force and effect until all Secured Obligations (other than Secured
Obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable) shall have been indefeasibly paid in full
in cash, the commitments or other obligations of the Agent or any Lender to
make any Loan under the Credit Agreement shall have expired, the Letters of
Credit shall have expired and the Facility Termination Date shall have
occurred, (b) be binding upon Pledgor, its successors and assigns, and (c)
inure to the benefit of the Agent, the Secured Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c) and subject to the provisions of the Credit Agreement, any
Lender may assign or otherwise transfer any Note held by it to any other person
or entity, and such other person or entity shall thereupon become vested with
all the benefits in respect thereof granted to such Lender herein or otherwise.
Upon the indefeasible payment in full in cash of the Secured Obligations (other
than Secured Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable), and the cancellation or
expiration of the Letters of Credit and termination or expiration of all
commitments and other obligations of the Agent and any Lender to make any Loan
and the occurrence of the Facility Termination Date, Pledgor shall be entitled,
subject to the provisions of Section 11 hereof, to the return, upon its request
and at its expense, of such of the Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof.
18. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party and all covenants, promises, and
agreements by or on behalf of the Pledgor or by and on behalf of the Agent
shall bind and inure to the benefit of the successors and assigns of the
Pledgor, the Agent and the Lenders.
19. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties on separate counterparts
and each such counterpart shall for all purposes be deemed an original, but all
such counterparts shall together constitute but one and the same Agreement. The
Pledgor and the Agent hereby acknowledge receipt of a true, correct, and
complete counterpart of this Agreement.
20. SWAP AGREEMENTS. All Hedging Obligations of any Pledgor shall be
deemed to be Secured Obligations secured hereby, and each Lender or affiliate
of a Lender party to any Swap Agreement shall be deemed to be a Secured Party
hereunder.
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<PAGE>
21. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction.
22. HEADINGS. The section headings in this Agreement are inserted for
convenience of reference and shall not be considered a part of this Agreement
or used in its interpretation.
23. GOVERNING LAW; TERMS.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(B) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE
OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PARTY PROVIDED
IN SECTION 15.1 OF THE CREDIT AGREEMENT OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE
OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF
SUCH PARTY'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT
PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY
HEREBY
Name: NB BOLLE LC ACCOUNT AGREEMENT
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<PAGE>
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER,
BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY
HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY AND EACH PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
[SIGNATURE PAGE FOLLOWS.]
Name: NB BOLLE LC ACCOUNT AGREEMENT
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this LC Account
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
BOLLE INC.
By: /s/ Desiree DeStefano
Name:
Title:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By: /s/ Susan Timmerman
Name:
Title:
LC ACCOUNT AGREEMENT
SIGNATURE PAGE
Name: NB BOLLE LC ACCOUNT AGREEMENT
Doc No: 190346 (FINAL)
<PAGE>
(d)
CASH COLLATERAL ACCOUNT AGREEMENT
THIS CASH COLLATERAL ACCOUNT AGREEMENT (this "Agreement") is made and
entered into as of the 11th day of March, 1998 by BOLLE INC. (the "Borrower" or
the "Pledgor") and NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association, as Agent (the "Agent") for each of the lenders (the "Lenders" and
collectively with the Agent, the "Secured Parties") now or hereafter party to
the Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into
that certain Amended and Restated Credit Agreement dated as of July 10, 1997
(as amended, supplemented or otherwise modified as of the date hereof, the
"Existing Credit Agreement"); and
WHEREAS, pursuant to that certain Assignment Agreement, dated as of
the date hereof and effective immediately prior to the effectiveness of this
Agreement, between BEC and the Borrower (the "Assignment Agreement"), BEC
assigned to the Borrower, and the Borrower assumed from BEC, among other
liabilities, certain indebtedness owing by and obligations of BEC under the
Existing Credit Agreement such that the Borrower became a co-borrower together
with BEC under the Existing Credit Agreement; and
WHEREAS, the Pledgor, the Agent and the Lenders have entered into that
certain Second Amended and Restated Credit Agreement dated as of the date
hereof among the Pledgor, the Agent and the Lenders (as from time to time
amended, supplemented or restated, the "Credit Agreement") pursuant to which
the Lenders have agreed to make certain credit facilities available to the
Borrower and to issue certain Letters of Credit; and
WHEREAS, Section 2.6 of the Credit Agreement provides that the
Borrower may deposit with the Agent the amount of certain mandatory prepayments
under the Credit Agreement as cash collateral for the Borrower's Obligations in
order to avoid certain prepayment costs associated with the Eurodollar Rate
Loans (the "Prepayment Cash Collateral"); and
WHEREAS, as a condition precedent to the Lenders' obligations to make
Advances and to issue or purchase participations in Letters of Credit under the
Credit Agreement, Pledgor is required to execute and deliver to the Agent a
copy of this Agreement on or before the Closing Date;
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained herein, Pledgor and the Agent hereby agree
as follows:
1. DEFINITIONS. The following capitalized terms used in this Agreement
shall have the following meanings notwithstanding any definition thereof in the
Credit Agreement. Other capitalized terms used but not defined herein shall
have the meanings therefor set forth in the Credit Agreement.
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"Collateral" means (a) all funds consisting of Prepayment Cash
Collateral and Lease Cash Collateral from time to time on deposit in the Cash
Collateral Account; (b) all Investments and all certificates and instruments
from time to time representing or evidencing such Investments; (c) all notes,
certificates of deposit, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Agent for or on behalf of
Pledgor in substitution for or in addition to any or all of the Collateral
described in clause (a) or (b) above; (d) all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Collateral described in clause (a), (b) or (c) above; and (e) to the extent not
covered by clauses (a) through (d) above, all proceeds of any or all of the
foregoing Collateral.
"Investments" means those investments, if any, of cash held in the
Cash Collateral Account made by the Agent pursuant to Section 5 hereof.
"Cash Collateral Account" means the cash collateral account
established and maintained pursuant to Section 2 hereof.
"Secured Obligations" means (a) all Obligations of the Pledgor now
existing or hereafter arising under or in respect of the Credit Agreement or
the Notes (including, without limitation, the Pledgor's obligation to pay
principal and interest and all other charges, fees, expenses, commissions,
reimbursements, indemnities and other payments related to or in respect of the
obligations contained in the Credit Agreement or the Notes) or any documents or
agreement related to the Credit Agreement or the Notes; and (b) without
duplication, all obligations of Pledgor now or hereafter existing under or in
respect of this Agreement, including, without limitation, with respect to all
charges, fees, expenses, commissions, reimbursements, indemnities and other
payments related to or in respect of the obligations in this Agreement.
2. CASH COLLATERAL ACCOUNT.
(a) Agent has established and shall maintain at the offices of the
Agent at 101 North Tryon Street, Charlotte, North Carolina, in the
name of the Agent and under the sole dominion and control of the
Agent, a cash collateral account designated as Bolle Inc. Cash
Collateral Account (the "Cash Collateral Account").
(b) Funds shall be deposited into the Cash Collateral Account with
respect to Prepayment Cash Collateral, at the sole election of the
Pledgor from time to time on or before the due date of any mandatory
prepayment under the Credit Agreement.
(c) Interest and other income (but not any principal) received in
respect of Investments of any amounts deposited in the Cash Collateral
Account pursuant to clause (b) of this Section 2 shall be delivered by
the Agent to Pledgor on the date of disbursement of principal under
clause (d) of this Section 2; provided, however, that the Agent shall
not deliver to Pledgor any such interest or other income if an Event
of Default has occurred and is continuing.
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(d) The principal portion of any Prepayment Cash Collateral shall be
paid out of the Cash Collateral Account without notice to or
instruction from the Borrower in amounts equal to and at the times
corresponding to the end of an Interest Period for each Eurodollar
Rate Loan in respect of which such deposit was made occurring after
the date of deposit of such Collateral. Such amounts so disbursed from
the Cash Collateral Account, shall be automatically applied by the
Agent on behalf of the Borrower to repay each applicable Eurodollar
Rate Loan having its Interest Period expire on such date.
3. PLEDGE; SECURITY FOR SECURED OBLIGATIONS. Pledgor hereby grants and
pledges to the Agent for the benefit of the Lenders a first priority lien and
security interest in the Collateral now existing or hereafter arising, as
collateral security for the prompt payment in full when due, whether at stated
maturity, by acceleration or otherwise (including without limitation, the
payment of interest and other amounts which would accrue and become due but for
the filing of a petition in bankruptcy or the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code), of all Secured Obligations.
4. DELIVERY OF COLLATERAL. The Collateral shall be delivered to the
Agent, for the benefit of the Lenders, in the form of immediately available
funds.
5. INVESTING OF AMOUNTS IN THE CASH COLLATERAL ACCOUNT; AMOUNTS HELD
BY THE AGENT. Cash held by the Agent in the Cash Collateral Account shall be
invested only as provided in this Section 5.
(a) Except as otherwise provided in Section 12 hereof, any funds on
deposit in the Cash Collateral Account shall be invested by the Agent
so long as no Event of Default shall have occurred and be continuing,
in Eligible Securities, provided that the Agent shall maintain at all
times a perfected security interest in such Collateral.
(b) The Agent is hereby authorized to sell or otherwise dispose of,
and shall sell or otherwise dispose of, all or any designated part of
the Collateral if such sale or disposition is necessary to permit the
Agent to exercise its rights or perform its duties hereunder or under
the Credit Agreement. The Agent shall have no responsibility for any
loss in the value of the Collateral resulting from a fluctuation in
interest rates or otherwise. Any interest, dividends or other
distribution, yield or return received or paid on Investments
permitted hereunder and the net proceeds of the sale or payment of any
such Investments shall be held in the Cash Collateral Account by the
Agent.
6. REPRESENTATION AND WARRANTIES. In addition to its representations
and warranties made pursuant to the Credit Agreement, Pledgor represents and
warrants to the Agent that the following statements are true, correct and
complete:
(a) Pledgor will be the legal and beneficial owner of the Collateral
free and clear of any Lien except for the lien and security interest
created by this Agreement and the other Loan Documents and Permitted
Liens in favor of Governmental Authorities;
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(b) The pledge and assignment of the Collateral pursuant to this
Agreement creates a valid and perfected priority security interest in
the Collateral, securing the payment of the Secured Obligations.
7. FURTHER ASSURANCES. Pledgor agrees that at any time and from time
to time, at its expense, it will promptly execute and deliver to the Agent any
further instruments and documents, and take any further actions, that may be
necessary or that the Agent may reasonably request in order to perfect and
protect any security interest granted or purported to be granted hereby or to
enable the Agent to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
8. TRANSFERS AND OTHER LIENS. Pledgor agrees that it will not (a) sell
or otherwise dispose of any of the Collateral or any interest therein, or (b)
create or permit to exist any Lien upon or with respect to any of the
Collateral, except for the Lien and security interest created by this Agreement
and the other Loan Documents and Permitted Liens in favor of Governmental
Authorities.
9. ATTORNEY-IN-FACT. Upon the occurrence and during the continuation
of an Event of Default, Pledgor hereby appoints the Agent as its
attorney-in-fact, with full authority in the place and stead of Pledgor and in
the name of Pledgor or otherwise, from time to time in the Agent's reasonable
discretion to take any action and to execute any instrument which the Agent may
reasonably deem necessary or advisable to accomplish the purposes of the
Agreement, including, without limitation, to receive, endorse and collect all
instruments made payable to Pledgor representing any payment, dividend, or
other distribution, yield or return in respect of the Collateral or any part
thereof and to give full discharge for the same. In performing its functions
and duties under this Agreement, the Agent shall act solely for the Lenders,
and the Agent has not assumed nor shall be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Pledgor.
10. THE AGENT MAY PERFORM. If Pledgor fails to perform any agreement
contained herein, after notice to Pledgor, the Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Agent incurred in
connection therewith shall be payable by Pledgor under Section 13 hereof.
11. STANDARD OF CARE; NO RESPONSIBILITY FOR CERTAIN MATTERS. In
dealing with the Collateral in its possession, the Agent shall exercise the
same care which it would exercise in dealing with similar collateral property
pledged by others in transactions of a similar nature, but it shall not be
responsible for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the Agent has or is deemed to have knowledge of such
matters, (b) taking any steps to preserve rights against any parties with
respect to any Collateral (other than steps taken in accordance with the
standard of care set forth above to maintain possession of the Collateral), (c)
the collection of any proceeds, (d) any loss resulting from Investments made
pursuant to Section 5 hereof, or (e) determining (x) the correctness of any
statement or calculation made by Pledgor in any written or telex instructions,
or (y) whether any deposit in the Cash Collateral Account is proper.
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12. REMEDIES UPON EVENT OF DEFAULT; APPLICATION OF PROCEEDS. If any
Event of Default shall have occurred and be continuing:
(a) The Agent may and shall at the request of the Required Lenders
exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or in the Credit Agreement or otherwise
available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code (the "Code") as in effect in
the state in which the Collateral is located at that time, and the
Agent may, without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or at any of the
Agent's offices or elsewhere, for cash, on credit or for future
delivery, and at such price or prices, and upon such other terms as
the Agent may deem commercially reasonable. Pledgor agrees that, to
the extent notice of sale shall be required by law, at least ten (10)
days' notice to Pledgor of the time and place of any public sale or
the time after which any private sale is to be made shall constitute
reasonable notification. The Agent shall not be obligated to make any
sale of the Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(b) In addition to the remedies in (a) above, any cash held by the
Agent as Collateral and all cash proceeds received by the Agent in
respect of any sale of, collection from, or other realization upon all
or part of the Collateral shall be applied (after payment of any
amounts payable to the Agent pursuant to Section 13 hereof) by the
Agent in accordance with the Credit Agreement.
13. EXPENSES. In addition to any payments of expenses of the Agent
pursuant to the Credit Agreement or the other Loan Documents, Pledgor agrees to
pay promptly to the Agent all the costs and reasonable expenses, including
reasonable attorneys fees and expenses, which the Agent may incur in connection
with (a) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (b) the exercise or enforcement
of any of the rights of the Agent hereunder, or (c) the failure by Pledgor to
perform or observe any of the provisions hereof.
14. NO DELAY'S WAIVER, ETC. No delay or failure on the part of the
Agent in exercising, and no course of dealing with respect to, any power or
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Agent of any power or right hereunder preclude other or
further exercise thereof or the exercise of any other power or right. The
remedies herein provided are to the fullest extent permitted by law cumulative
and are not exclusive of any remedies provided by law.
15. AMENDMENTS, ETC. No amendment, modification, termination or waiver
of any provision of this Agreement, or consent to any departure by Pledgor
therefrom, shall in any event be effective without the written concurrence of
the Agent.
16. NOTICES. Except as otherwise specifically provided herein, all
notices which are to be sent to Pledgor or the Agent shall be given in
accordance with the Credit Agreement.
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17. CONTINUING SECURITY INTEREST; TERMINATION. This Agreement shall
create a continuing security interest in the Collateral and shall remain in
full force and effect until all Secured Obligations (other than Secured
Obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable) shall have been indefeasibly paid in full
in cash, and the cancellation or expiration of the Letters of Credit and
termination or expiration of all commitments and other obligations of the Agent
and any Lender to make any Loan and the occurrence of the Facility Termination
Date, Pledgor shall be entitled, subject to the provisions of Section 11
hereof, to the return, upon its request and at its expense, of such of the
Collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof. Upon the indefeasible payment in full in cash of the Secured
Obligations (other than Secured Obligations in the nature of continuing
indemnities or expense reimbursement obligations not yet due and payable) and
the cancellation or expiration of all Letters of Credit and termination or
expiration of all commitments and other obligations of the Issuing Bank to
issue any Letters of Credit and the occurrence of the Facility Termination
Date, Pledgor shall be entitled, subject to the provisions of Section 12
hereof, to the return, upon its request and at its expense, of such of the
Collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof.
18. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party and all covenants, promises, and
agreements by or on behalf of Pledgor or by and on behalf of the Agent shall
bind and inure to the benefit of the successors and assigns of Pledgor and the
Agent.
19. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties on separate counterparts
and each such counterpart shall for all purposes be deemed an original, but all
such counterparts shall together constitute but one and the same Agreement.
Pledgor and the Agent hereby acknowledge receipt of a true, correct, and
complete counterpart of this Agreement.
20. SWAP AGREEMENTS. All Hedging Obligations of any Pledgor shall be
deemed to be Secured Obligations secured hereby, and each Lender or affiliate
of a Lender party to any Swap Agreement shall be deemed to be a Secured Party
hereunder.
21. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction.
22. HEADINGS. The section headings in this Agreement are inserted for
convenience of reference and shall not be considered a part of this Agreement
or used in its interpretation.
23. GOVERNING LAW; WAIVERS.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
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APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE.
(B) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE
OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PARTY PROVIDED
IN SECTION 15.1 OF THE CREDIT AGREEMENT OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE
OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF
SUCH PARTY'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT
PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER,
BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY
HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A
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JURY AND EACH PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR PROCEEDING HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
[SIGNATURE PAGE FOLLOWS.]
Name: BOLLE CASH COLLATERAL ACCT AGRMT
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IN WITNESS WHEREOF, the parties have duly executed this Cash
Collateral Account Agreement on the day and year first written above.
BOLLE INC.
By: /s/ Desiree DeStefano
Name:
Title:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Secured Parties
By: /s/ Susan Timmerman
Name:
Title:
Name: BOLLE CASH COLLATERAL ACCT AGRMT
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(e)
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED SECURITY AGREEMENT (this "Agreement")
is made and entered into as of March 11, 1998 by BOLLE INC., a Delaware
corporation (the "Borrower), and EACH OF THE UNDERSIGNED SUBSIDIARIES OF THE
BORROWER (each a "Guarantor", and collectively with the Borrower, the
"Grantors"), and NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association, as Agent (the "Agent") for each of the lenders (the "Lenders" and
collectively with the Agent, the "Secured Parties") now or hereafter party to
the Credit Agreement (as defined below). All capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned thereto in
the Credit Agreement (as defined below);
W I T N E S S E T H:
WHEREAS, the Lenders, the Agent and BEC Group, Inc. ("BEC"), of which
the Borrower was formerly a direct subsidiary, are parties to that certain
Amended and Restated Credit Agreement dated as of July 10, 1997 (the "Existing
Credit Agreement"); and
WHEREAS, pursuant to that certain Assignment Agreement and First
Amendment to the Amended and Restated Credit Agreement, dated as of the date
hereof and effective immediately prior to the effectiveness of this Agreement,
between BEC, the Borrower, the Agent and the Lenders (the "Assignment and
Amendment"), BEC assigned to the Borrower, and the Borrower assumed from BEC,
among other liabilities, certain indebtedness owing by, and obligations of, BEC
under the Existing Credit Agreement such that the Borrower became a co-borrower
together with BEC under the Existing Credit Agreement; and
WHEREAS, the Guarantors are parties to that certain Amended and
Restated Security Agreement dated as of July 10, 1997, with the Agent (as
amended, supplemented or otherwise modified as of the date hereof, the
"Existing Security Agreement"); and
WHEREAS, the Guarantors are parties to that certain Second Amended and
Restated Guaranty Agreement (the "Guaranty") dated as of the date hereof
pursuant to which each Guarantor guaranteed, or continued its guaranty of, the
obligations of the Borrower under the Credit Agreement; and
WHEREAS, the Grantors, the Agent and the Lenders desire to amend and
restate the Existing Security Agreement in its entirety to reflect changes in
the parties required to be parties thereto and certain changes in the Credit
Agreement; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Credit Agreement, the Borrower is willing to continue its
grant to the Agent for the benefit of the Secured Parties of a security
interest in certain of its personal property and assets; and
<PAGE>
WHEREAS, as collateral security for payment and performance of its
obligations under the Guaranty, each Guarantor is willing to grant, or to
continue its grant, to the Agent for the benefit of the Secured Parties of a
security interest in certain of its personal property and assets;
NOW, THEREFORE, in order to induce the Secured Parties to enter into
the Loan Documents and in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby amend and restate the
Existing Security Agreement in its entirety as follows:
1. GRANT OF SECURITY INTEREST. As collateral security for the payment
and satisfaction of all obligations and liabilities of the Guarantors under the
Guaranty Agreement and all of the Borrower's Obligations under the Credit
Agreement (collectively, the "Secured Obligations"), each Grantor hereby
affirms, grants, pledges and assigns, or reaffirms, regrants and continues its
pledge and collateral assignment, as the case may be, to the Agent for the
benefit of the Lenders and continues and grants to the Agent for the benefit of
the Lenders a continuing first priority security interest in and to all of the
following property of such Grantor, whether now owned or existing or hereafter
acquired or arising and wheresoever located:
(a) All accounts, accounts receivable, contracts, notes,
bills, acceptances, choses in action, chattel paper, instruments,
documents and other forms of obligations at any time owing to each
Grantor arising out of goods sold or leased or for services rendered
by such Grantor, the proceeds thereof and all of such Grantor's rights
with respect to any goods represented thereby, whether or not
delivered, goods returned by customers and all rights as an unpaid
vendor or lienor, including rights of stoppage in transit and of
recovering possession by proceedings including replevin and
reclamation, together with all customer lists, books and records,
ledger and account cards, computer tapes, software, disks, printouts
and records, whether now in existence or hereafter created, relating
thereto (collectively referred to hereinafter as "Accounts");
(b) All inventory of each Grantor, including without
limitation, all goods manufactured or acquired for sale or lease, and
any piece goods, raw materials, work in process and finished
merchandise, findings or component materials, and all supplies, goods,
incidentals, office supplies, packaging materials and any and all
items used or consumed in the operation of the business of such
Grantor or which may contribute to the finished product or to the
sale, promotion and shipment thereof, in which such Grantor now or at
any time hereafter may have an interest, whether or not the same is in
transit or in the constructive, actual or exclusive occupancy or
possession of such Grantor or is held by such Grantor or by others for
such Grantor's account (collectively referred to hereinafter as
"Inventory");
(c) All goods of each Grantor, including without limitation,
all machinery, equipment, parts, supplies, apparatus, appliances,
tools, patterns, molds, dies, blueprints, fittings, furniture,
furnishings, fixtures and articles of tangible personal property of
every description now or hereafter owned by a Grantor or in which such
Grantor may have or
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may hereafter acquire any interest, at any location (collectively
referred to hereinafter as "Equipment");
(d) All general intangibles of each Grantor in which a
Grantor now has or hereafter acquires any rights, including but not
limited to, causes of action, corporate or business records,
inventions, designs, patents, patent applications, trademarks,
trademark registrations and applications therefor, goodwill, trade
names, trade secrets, trade processes, copyrights, copyright
registrations and applications therefor, licenses, permits,
franchises, customer lists, computer programs, all claims under
guaranties, tax refund claims, rights and claims against carriers and
shippers, leases, claims under insurance policies, all rights to
indemnification and all other intangible personal property and
intellectual property of every kind and nature (collectively referred
to hereinafter as "General Intangibles");
(e) All rights now or hereafter accruing to each Grantor
under contracts, leases, agreements or other instruments to perform
services, to hold and use land and facilities, and to enforce all
rights thereunder (collectively referred to hereinafter as "Contract
Rights");
(f) All books and records relating to any of the Collateral
(as hereinafter defined) (including without limitation, customer data,
credit files, computer programs, printouts, and other computer
materials and records of each Grantor pertaining to any of the
foregoing); and
(g) All accessions to, substitutions for and all
replacements, products and proceeds of the foregoing, including
without limitation proceeds of insurance policies insuring the
Collateral (as hereinafter defined).
All of the property and interests in property described in subsections
(a) through (g) and all other property and interests in personal property which
shall, from time to time, secure the Secured Obligations are herein
collectively referred to as the "Collateral."
2. FINANCING STATEMENTS. At the time of execution of this Agreement,
each Grantor shall have furnished the Agent with properly executed financing
statements, amendments and assignments (including amendments of financing
statements filed pursuant to the Existing Security Agreement) as prescribed by
the Uniform Commercial Code as presently in effect in the states where the
Collateral is located, prepared and approved by the Agent in form and number
sufficient for filing wherever required with respect to the Collateral, in
order that the Agent, for the benefit of the Lenders, shall have a duly
perfected security interest of record in the Collateral, to the extent a
security interest in such Collateral can be perfected by filing a financing
statement, following the filing of such financing statements with the
appropriate local and state governmental authorities, subject only to Permitted
Liens. Each Grantor shall execute as reasonably required by the Agent any
additional financing statements or other documents to effect the same, together
with any necessary continuation statements so long as this Agreement remains in
effect.
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3. MAINTENANCE OF SECURITY INTEREST. Each Grantor will, from time to
time, upon the request of the Agent, deliver specific assignments of
Collateral, together with such other instruments and documents, financing
statements, amendments thereto, assignments or other writings as the Agent may
reasonably request to carry out the terms of this Agreement or to protect or
enforce the Agent's security interest in the Collateral.
With respect to any and all Collateral to be secured and conveyed
under this Agreement, each Grantor agrees to do and cause to be done all things
necessary to perfect and keep in full force the security interest granted in
favor of the Agent for the benefit of the Lenders, including, but not limited
to, the prompt payment of all fees and expenses incurred in connection with any
filings made to perfect or continue a security interest in the Collateral in
favor of the Agent for the benefit of the Lenders.
Each Grantor agrees to make appropriate entries upon its financial
statements and books and records disclosing the Agent's (for the benefit of the
Lenders) security interest granted hereunder.
4. RECEIPT OF PAYMENT. In the event an Event of Default shall occur
and be continuing and a Grantor (or any of its affiliates, subsidiaries,
stockholders, directors, officers, employees or agents) shall receive any
proceeds of Collateral, including without limitation monies, checks, notes,
drafts or any other items of payment, each Grantor shall hold all such items of
payment in trust for the Agent, for the benefit of the Lenders, and as the
property of the Agent, for the benefit of the Lenders, separate from the funds
of such Grantor, and no later than the first Business Day following the receipt
thereof, such Grantor shall cause the same to be forwarded to the Agent for its
custody and possession on behalf of the Lenders as additional Collateral.
5. COLLECTIONS; AGENT'S RIGHT TO NOTIFY ACCOUNT DEBTORS AND TO ENDORSE
A GRANTOR'S NAME. Each Grantor hereby authorizes the Agent, on behalf of the
Lenders, at all times after the occurrence and during the continuation of an
Event of Default (a) to open such Grantor's mail and collect any and all
amounts due to such Grantor from Persons obligated on any Accounts ("Account
Debtors"); (b) to take over such Grantor's post office boxes or make other
arrangements as the Agent, on behalf of the Lenders, deems necessary to receive
such Grantor's mail, including notifying the post office authorities to change
the address for delivery of such Grantor's mail to such address as the Agent,
on behalf of the Lenders, may designate; and (c) to notify any or all Account
Debtors that the Accounts have been assigned to the Agent for the benefit of
the Lenders and that Agent has a security interest therein for the benefit of
the Lenders (provided that the Agent may at any time give such notice to an
Account Debtor that is a department, agency or authority of the United States
government). Each Grantor at all times after the occurrence and during the
continuation of an Acceleration Event (as hereinafter defined) irrevocably
makes, constitutes and appoints the Agent, for the benefit of the Lenders, (and
all Persons designated by the Agent for that purpose) as such Grantor's true
and lawful attorney (and agent-in-fact) to endorse such Grantor's name on any
checks, notes, drafts or any other payment relating to or constituting proceeds
of the Collateral which comes into the Agent's possession or Agent's control,
and deposit the same to the account of the Agent, for the benefit of the
Lenders,
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on account and for payment of the Secured Obligations. The Agent shall promptly
furnish each Grantor with a copy of any such notice sent with respect to
Accounts of such Grantor pursuant to clause (c) of this Section 5 and each
Grantor hereby agrees that any such notice, in the Agent's sole discretion, may
be sent on such Grantor's stationery, in which event such Grantor shall co-sign
such notice with the Agent. For purposes of this Agreement, "Acceleration
Event" means that (a) an Event of Default has occurred and is continuing and
(b) the Secured Obligations have become due and payable (whether by
acceleration, at final maturity or otherwise).
6. COVENANTS. Each Grantor covenants with the Agent that from and
after the date of this Agreement until termination hereof in accordance with
Section 27 hereof:
(a) INSPECTION. The Agent (by any of its officers, employees
and agents), on behalf of the Lenders, shall have the right upon its
reasonable request and reasonable prior notice, and at any reasonable
times during such Grantor's usual business hours, to inspect the
Collateral, all records related thereto (and to make extracts or
copies from such records), and the premises upon which any of the
Collateral is located, to discuss such Grantor's affairs and finances
with any Person (other than Account Debtors) and to verify with any
Person other than Account Debtors the amount, quality, quantity, value
and condition of, or any other matter relating to, the Collateral and,
if an Event of Default has occurred and is continuing, to discuss such
Grantor's affairs and finances with such Grantor's Account Debtors and
to verify the amount, quality, value and condition of, or any other
matter relating to, the Collateral and such Account Debtors. Upon or
after the occurrence and during the continuation of an Acceleration
Event, the Agent may at any time and from time to time employ and
maintain on such Grantor's premises a custodian selected by the Agent
who shall have full authority to do all acts necessary to protect the
Agent's (for the benefit of the Lenders) interest. All expenses
incurred by the Agent, on behalf of the Lenders, by reason of the
employment of such custodian shall be paid by such Grantor, added to
the Secured Obligations and secured by the Collateral.
(b) ASSIGNMENTS, RECORDS AND SCHEDULES OF ACCOUNTS. Each
Grantor shall keep accurate and complete records of its Accounts
("Account Records") and from time to time at intervals designated by
the Agent such Grantor shall provide the Agent with a schedule of
Accounts in form and substance acceptable to the Agent describing all
Accounts created or acquired by such Grantor ("Schedule of Accounts");
provided, however, that such Grantor's failure to execute and deliver
any such Schedule of Accounts shall not affect or limit the Agent's
security interest or other rights in and to any Accounts for the
benefit of the Lenders. If requested by the Agent, each Grantor shall
furnish the Agent with copies of proof of delivery and other documents
relating to the Accounts so scheduled, including without limitation
repayment histories and present status reports (collectively, "Account
Documents") and such other matter and information relating to the
status of then existing Accounts as the Agent shall request. No
Grantor shall remove any Account Records or Account Documents or
change its chief executive offices from the locations set forth in
Exhibit A hereto without 30 days prior written notice to the Agent as
provided in Section 20 hereof and delivery to the Agent by the
applicable Grantor prior
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to such removal of executed financing statements, amendments and other
documents necessary to maintain the security interests granted
hereunder.
(c) NOTICE REGARDING DISPUTED ACCOUNTS. In the event any
amounts due and owing in excess of $250,000 are in dispute between any
Account Debtor and a Grantor (which shall include without limitation
any dispute in which an offset claim or counterclaim may result), such
Grantor shall provide the Agent with written notice thereof as soon as
practicable, explaining in detail the reason for the dispute, all
claims related thereto and the amount in controversy.
(d) VERIFICATION OF ACCOUNTS. If an Event of Default has
occurred and is continuing, any of the Agent's officers, employees or
agents shall have the right, at any reasonable time or times
hereafter, to verify with Account Debtors the validity, amount or any
other matter relating to any Accounts and, whether or not a Default or
Event of Default has occurred, any of the Agent's officers, employees
or agents shall have the right to verify the same with any Grantor.
(e) CHANGE OF TRADE STYLES. No Grantor shall change, amend,
alter, terminate, or cease using its material trade names or styles
under which it sells Inventory as of the date of this Agreement
("Trade Styles"), or use additional Trade Styles, without giving the
Agent at least 30 days' prior written notice and delivery to the Agent
by the applicable Grantor prior to such removal, change, amendment,
alteration, or use, of executed financing statements, amendments and
other documents necessary to maintain the security interests granted
hereunder.
(f) SAFEKEEPING OF INVENTORY. Each Grantor shall be
responsible for the safekeeping of its Inventory, and, subject to
Section 16 hereof, in no event shall the Agent have any responsibility
for:
(i) Any loss or damage to Inventory or
destruction thereof occurring or arising in any manner or
fashion from any cause;
(ii) Any diminution in the value of Inventory; or
(iii) Any act or default of any carrier,
warehouseman, bailee or forwarding agency thereof or other
Person in any way dealing with or handling Inventory.
(g) LOCATION, RECORDS AND SCHEDULES OF INVENTORY. Each
Grantor shall keep correct and accurate records itemizing and
describing the kind, type, location and quantity of Inventory, its
cost therefor and the selling price of Inventory held for sale, and
the daily withdrawals therefrom and additions thereto, and shall
furnish to the Agent from time to time at reasonable intervals
designated by the Agent, a current schedule of Inventory ("Schedule of
Inventory") based upon its most recent physical inventory and its
daily
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inventory records. Each Grantor shall conduct a physical inventory, no
less than annually, and shall furnish to the Agent such other
documents and reports thereof as the Agent shall reasonably request
with respect to the Inventory. Subject to compliance at all times with
Sections 9(c), (d) and (e), no Grantor shall, other than in the
ordinary course of business in connection with its sale, remove any
material amount of Inventory from the locations set forth on Exhibit B
hereto to a location not also set forth on Exhibit B hereto, each of
such locations being owned by a Grantor unless otherwise indicated,
without 30 days prior written notice to the Agent as provided in
Section 20 hereof and delivery to the Agent by the applicable Grantor
prior to such removal of executed financing statements, amendments and
other documents necessary to maintain the security interests granted
hereunder.
(h) RETURNS OF INVENTORY. If any Account Debtor returns any
Inventory to a Grantor after shipment thereof, and such return
generates a credit in excess of $250,000 in the aggregate on any
Account or Accounts of such Account Debtor, such Grantor shall notify
the Agent of the same as soon as practicable.
(i) EVIDENCE OF OWNERSHIP OF EQUIPMENT. The Grantors, as soon
as practicable following a request therefor by the Agent, shall
deliver to the Agent any and all evidence of ownership of any of the
Equipment (including without limitation certificates of title and
applications for title).
(j) LOCATION, RECORDS AND SCHEDULES OF EQUIPMENT. The
Grantors shall maintain accurate, itemized records itemizing and
describing the kind, type, quality, quantity and value of its
Equipment and shall furnish the Agent upon request with a current
schedule containing the foregoing information, but, other than during
the continuance of an Event of Default, not more often than once per
fiscal quarter. No Grantor shall remove any material portion of the
Equipment from the locations set forth in Exhibit C hereto to a
location not also set forth on Exhibit C hereto without at least 30
days' prior written notice to the Agent as provided in Section 20
hereof and delivery to the Agent by the applicable Grantor prior to
such removal of executed financing statements, amendments and other
documents necessary to maintain the security interests granted
hereunder.
(k) SALE OR MORTGAGE OF EQUIPMENT. Other than in the ordinary
course of business with respect to disposition of obsolescent
Equipment or replacement of Equipment with other Equipment performing
similar functions and having similar or better utility and value, and
except as permitted by the Credit Agreement prior to the occurrence
and continuance of an Event of Default, no Grantor shall sell,
exchange, lease, mortgage, encumber, pledge or otherwise dispose of or
transfer any of the Equipment or any part thereof without the prior
written consent of the Agent.
(l) MAINTENANCE OF EQUIPMENT. Each Grantor shall keep and
maintain its Equipment in good operating condition and repair,
ordinary wear and tear excepted. No Grantor shall permit any such
items to become a fixture to real property (unless such
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Grantor has granted the Agent for the benefit of the Lenders a lien on
such real property) or accessions to other personal property.
7. WARRANTIES AND REPRESENTATIONS REGARDING COLLATERAL GENERALLY. Each
Grantor warrants and represents that it is and, except as permitted by the
Credit Agreement, will continue to be the owner of the Collateral hereunder,
now owned and upon the acquisition of the same, free and clear of all Liens,
claims, encumbrances and security interests other than the security interest in
favor of the Agent for the benefit of the Lenders hereunder and Permitted
Liens, and that it will defend such Collateral and any products and proceeds
thereof against all claims and demands of all Persons (other than holders of
Permitted Liens) at any time claiming the same or any interest therein adverse
to the Secured Parties.
8. ACCOUNT WARRANTIES AND REPRESENTATIONS. With respect to its
Accounts, each Grantor warrants and represents to the Agent for the benefit of
the Lenders that the Agent and each Lender may rely on all statements or
representations made by such Grantor on or with respect to any Schedule of
Accounts prepared and delivered by it and that:
(a) All Account Records and Account Documents are located
only at such Grantor's locations as set forth on Exhibit A attached
hereto and incorporated herein by reference;
(b) The Accounts are genuine, are in all respects what they
purport to be, are not evidenced by an instrument or document or, if
evidenced by an instrument or document, are only evidenced by one
original instrument or document;
(c) The Accounts cover bona fide sales and deliveries of
Inventory usually dealt in by such Grantor, or the rendition by such
Grantor of services, to an Account Debtor in the ordinary course of
business or as permitted by the Credit Agreement;
(d) The amounts of the face value shown on any Schedule of
Accounts or invoice statement delivered to the Agent with respect to
any Account, are actually owing to such Grantor and are not contingent
for any reason; and there are no setoffs, discounts, allowances,
claims, counterclaims or disputes of any kind or description in an
amount greater than $250,000 in the aggregate, or greater than $50,000
individually, existing or asserted with respect thereto and such
Grantor has not made any agreement with any Account Debtor thereunder
for any deduction therefrom, except as may be stated in the Schedule
of Accounts and reflected in the calculation of the face value of each
respective invoice related thereto;
(e) Except for conditions generally applicable to such
Grantor's industry and markets, there are no facts, events, or
occurrences known to such Grantor pertaining particularly to any
Accounts which are reasonably expected to materially impair in any way
the validity, collectibility or enforcement of Accounts that would
reasonably be likely, in the aggregate, to be of material economic
value, or in the aggregate materially reduce
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the amount payable thereunder from the amount of the invoice face
value shown on any Schedule of Accounts, and on all contracts,
invoices and statements delivered to the Agent, with respect thereto;
(f) The goods or services giving rise thereto are not, and
were not at the time of the sale or performance thereof, subject to
any Lien, claim, encumbrance or security interest, except those of the
Agent for the benefit of the Lenders and those removed or terminated
prior to the date hereof and Permitted Liens;
(g) The Accounts have not been pledged to any Person other
than to the Agent for the benefit of the Lenders under this Agreement
and will be owned by such Grantor free and clear of any Liens, claims,
encumbrances or security interests except Permitted Liens;
(h) The Agent's and the Lenders' security interest therein
will not be subject to any offset, deduction, counterclaim, Lien or
other adverse condition, other than Permitted Liens; and
(i) The location of its chief executive office and any state
in which it (i) has a place of business in only one county of such
state or (ii) resides in such state (within the meaning of the
applicable Uniform Commercial Code) but does not have any place of
business in such state, is set forth on Exhibit A attached hereto and
incorporated herein by reference and each Grantor shall deliver to the
Agent not less than 30 days written notice prior to any change of such
location or status of places of business or residency.
9. INVENTORY WARRANTIES AND REPRESENTATIONS. With respect to its
Inventory, each Grantor warrants and represents to the Agent for the benefit of
the Lenders that the Secured Parties may rely on all statements or
representations made by such Grantor on or with respect to any Inventory and
that:
(a) All Inventory, other than Inventory consisting of samples
utilized by salespeople or otherwise having a reasonable value of less
than $15,000 in the aggregate for any location, is located only at
such Grantor's locations as set forth on Exhibit B attached hereto and
incorporated herein by reference;
(b) None of its Inventory is or will be subject to any Lien,
claim, encumbrance or security interest whatsoever, except for the
security interest of the Agent for the benefit of the Lenders
hereunder and Permitted Liens;
(c) No Inventory of such Grantor that would reasonably be
likely, in the aggregate with the Inventory of all Grantors, to be of
value in excess of $100,000 is, and shall not at any time or times
hereafter be, stored with a bailee, warehouseman, or similar party
without the Agent's prior written consent and, if the Agent gives such
consent, such Grantor will concurrently therewith cause any such
bailee, warehouseman, or similar party
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to issue and deliver to the Agent upon its request therefor, in form
and substance reasonably acceptable to the Agent, warehouse receipts
therefor in the Agent's name and take such other action and be party
to such document as deemed necessary or prudent by the Agent to
maintain the security interest of the Lenders in such Inventory;
(d) No Inventory is, and shall not at any time or times
hereafter be, under consignment to any Person, the value of which,
when aggregated with all other Inventory under consignment of such
Grantor and all other Material Subsidiaries, would exceed $100,000;
and
(e) No Inventory is at or shall be kept at any location that
is leased by such Grantor from any other Person, the value of which,
when aggregated with all other Inventory kept at any location which is
leased by all Grantors, would exceed $100,000, unless such location
and lessor is set forth on Exhibit B hereto and such lessor waives its
rights with respect to such Inventory in form and substance acceptable
to the Agent and delivered in writing to the Agent prior to such
amount of Inventory being at such one or more locations.
10. EQUIPMENT REPRESENTATIONS AND WARRANTIES. With respect to its
Equipment, each Grantor warrants and represents to the Agent for the benefit of
the Lenders that the Secured Parties may rely on all statements or
representations made by such Grantor on or with respect to any Equipment and
that:
(a) All Equipment is located only at such Grantor's
locations set forth in Exhibit C hereto;
(b) None of its Equipment is or will be subject to any Lien,
claim, encumbrance or security interest whatsoever, except for the
security interest of the Agent, for the benefit of the Lenders,
hereunder and Permitted Liens;
(c) No Equipment of such Grantor is at or shall be kept at
any location that is leased by such Grantor from any other Person
unless such location and lessor is set forth on Exhibit C hereto and
such lessor waives its rights with respect to such Equipment in form
and substance acceptable to the Agent.
11. CASUALTY AND LIABILITY INSURANCE REQUIRED.
(a) Each Grantor will keep the Collateral continuously
insured against such risks as are customarily insured against by
businesses of like size and type engaged in the same or similar
operations including, without limiting the generality of any other
covenant herein contained:
(i) casualty insurance on the Inventory and the
Equipment in an amount not less than the full insurable value
thereof, against loss or damage by theft, fire
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and lightning and other hazards ordinarily included under
uniform broad form standard extended coverage policies,
limited only as may be provided in the standard broad form of
extended coverage endorsement at the time in use in the
states in which the Collateral is located;
(ii) comprehensive general liability insurance
against claims for bodily injury, death or property damage
occurring with or about such Collateral (such coverage to
include provisions waiving subrogation against the Secured
Parties), with Agent and Lenders as additional insured
parties, in amounts as shall be reasonably satisfactory to
Agent;
(iii) liability insurance with respect to the
operation of its facilities under the workers' compensation
laws of the states in which such Collateral is located; and
(iv) business interruption insurance.
(b) Each insurance policy obtained in satisfaction of the
requirements of Section 11(a) hereof:
(i) may be provided by blanket policies now or
hereafter maintained by each Grantor or the Borrower;
(ii) shall be issued by such insurer (or insurers)
as shall be financially responsible, of recognized standing
and reasonably acceptable to the Agent;
(iii) shall be in such form and have such
provisions (including without limitation the loss payable
clause, the waiver of subrogation clause, the deductible
amount, if any, and the standard mortgagee endorsement
clause), as are generally considered standard provisions for
the type of insurance involved and are reasonably acceptable
in all respects to the Agent;
(iv) shall prohibit cancellation or substantial
modification, termination or lapse in coverage by the insurer
without at least 30 days' prior written notice to the Agent,
except for non-payment of premium, in which case such
policies shall provide ten (10) days' prior written notice;
(v) without limiting the generality of the
foregoing, all insurance policies where applicable under
Section 11(a)(i) carried on the Collateral shall name the
Agent, for the benefit of the Lenders, as loss payee and the
Agent and Lenders as parties insured thereunder in respect of
any claim for payment in excess of $250,000.
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(c) Prior to expiration of any such policy, such Grantor
shall furnish the Agent with evidence satisfactory to the Agent that
the policy or certificate has been renewed or replaced or is no longer
required by this Agreement.
(d) Each Grantor hereby irrevocably makes, constitutes and
appoints the Agent (and all officers, employees or agents designated
by the Agent), for the benefit of the Lenders, effective upon the
occurrence and during the continuance of an Acceleration Event, as
such Grantor's true and lawful attorney (and agent-in-fact) for the
purpose of making, settling and adjusting claims under such policies
of insurance, endorsing the name of such Grantor on any check, draft,
instrument or other item or payment for the proceeds of such policies
of insurance and for making all determinations and decisions with
respect to such policies of insurance.
(e) In the event such Grantor shall fail to maintain, or fail
to cause to be maintained, the full insurance coverage required
hereunder or shall fail to keep any of its Collateral in good repair
and good operating condition, the Agent may (but shall be under no
obligation to), without waiving or releasing any Secured Obligation or
Event of Default by such Grantor hereunder, contract for the required
policies of insurance and pay the premiums on the same or make any
required repairs, renewals and replacements; and all sums so disbursed
by Agent, including reasonable attorneys' fees, court costs, expenses
and other charges related thereto, shall be payable on demand by such
Grantor to the Agent and shall be additional Secured Obligations
secured by the Collateral.
(f) Each Grantor agrees that to the extent that it shall not
carry insurance required by Section 11(a) hereof, it shall in the
event of any loss or casualty pay promptly to the Agent, for the
benefit of the Lenders, for application in accordance with the
provisions of Section 11(h) hereof, such amount as would have been
received as Net Proceeds (as hereinafter defined) by the Agent, for
the benefit of the Lenders, under the provisions of Section 11(h)
hereof had such insurance been carried to the extent required.
(g) The Net Proceeds of the insurance carried pursuant to the
provisions of Sections 11(a)(ii) and 11(a)(iii) hereof shall be
applied by such Grantor toward extinguishment of the defect or claim
or satisfaction of the liability with respect to which such insurance
proceeds may be paid.
(h) The Net Proceeds of the insurance carried with respect to
the Collateral pursuant to the provisions of Section 11(a)(i) hereof
shall be paid to such Grantor and held by such Grantor in a separate
account and applied as follows: (i) as long as no Event of Default
shall have occurred and be continuing, after any loss under any such
insurance and payment of the proceeds of such insurance, each Grantor
shall have a period of 30 days after payment of the insurance proceeds
with respect to such loss to elect to either (x) repair or replace the
Collateral so damaged, (y) deliver such Net Proceeds to the Agent, for
the benefit of the Lenders, as additional Collateral or (z) apply such
Net Proceeds to the acquisition of tangible assets used or useful in
the conduct of the business of such
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Grantor, subject to the provisions of this Agreement. If such Grantor
elects to repair or replace the Collateral so damaged, such Grantor
agrees the Collateral shall be repaired to a condition substantially
similar to its condition prior to damage or replaced with Collateral
in a condition substantially similar to the condition of the
Collateral so replaced prior to damage; and (ii) at all times during
which an Event of Default shall have occurred and be continuing, after
any loss under such insurance and payment of the proceeds of such
insurance, such Grantor shall immediately deliver such Net Proceeds to
such Agent, for the benefit of the Lenders, as additional Collateral.
(i) "Net Proceeds" when used with respect to any insurance
proceeds shall mean the gross proceeds from such proceeds, award or
other amount, less all taxes, fees and expenses (including attorneys'
fees) incurred in the realization thereof.
(j) In case of any material damage to or destruction of all
or any part of the Collateral pledged hereunder by a Grantor, such
Grantor shall give prompt notice thereof to the Agent. Each such
notice shall describe generally the nature and extent of such damage,
destruction, taking, loss, proceeding or negotiations. Each Grantor is
hereby authorized and empowered to adjust or compromise any loss under
any such insurance.
12. EVENTS OF DEFAULT. It is understood and agreed that the occurrence
of any one or more of the following shall constitute an "Event of Default"
hereunder and shall entitle the Agent, for the benefit of the Lenders, to take
such actions as are elsewhere provided in this Agreement in respect of Events
of Default: (a) an "Event of Default" as defined in the Credit Agreement shall
have occurred and be continuing; or (b) a Grantor shall have failed to pay the
Agent, for the benefit of the Lenders, all of the Secured Obligations owed to
it in accordance with the Guaranty Agreement or the Credit Agreement, as
applicable, on the Business Day on which the Agent has demanded such payment;
or (c) any representation or warranty made by a Grantor herein, in the Credit
Agreement in the Guaranty Agreement or in any other existing or future
agreement with any of the Secured Parties shall prove to have been false in any
material respect when made; or (d) any covenant made by a Grantor herein (other
than those covenants contained in Sections 6(a) hereof) or in the Guaranty
Agreement (other than any covenant contained in Section 3 thereof) is breached,
violated, or not complied with and not cured within 30 days after notice
thereof from any of the Secured Parties; provided, however, that any breach,
violation or non-compliance with any covenant contained in Section 6(a) hereof
or Section 3 of the Guaranty Agreement shall immediately result in an Event of
Default; or (e) any covenant made by a Grantor in any other Loan Document or
any future agreement with any of the Secured Parties is breached, violated, or
not complied with and not cured within any grace period applicable thereto, or
if no grace period is applicable and default thereunder does not result
immediately from such noncompliance, then not cured within 30 days after notice
thereof from any of the Secured Parties, and results in a material adverse
change to the Collateral taken as a whole or its value taken as a whole; or (f)
any material uninsured damage to or loss, theft or destruction of any of the
Collateral shall occur.
13. RIGHTS AND REMEDIES UPON ACCELERATION EVENT. Upon and after an
Acceleration Event, the Agent shall have the following rights and remedies on
behalf of the Lenders in addition
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to any rights and remedies set forth elsewhere in this Agreement, all of which
may be exercised with or, if allowed by law, without notice to a Grantor:
(a) All of the rights and remedies of a secured party under
the Uniform Commercial Code of the state where such rights and
remedies are asserted, or under other applicable law, all of which
rights and remedies shall be cumulative, and none of which shall be
exclusive, to the extent permitted by law, in addition to any other
rights and remedies contained in this Agreement, the Guaranty
Agreement or any other Loan Document;
(b) The right to foreclose the Liens and security instruments
created under this Agreement by any available judicial procedure or
without judicial process;
(c) The right to (i) enter upon the premises of a Grantor
through self-help and without judicial process, without first
obtaining a final judgment or giving such Grantor notice and
opportunity for a hearing on the validity of the Agent's claim and
without any obligation to pay rent to such Grantor, or any other place
or places where any Collateral is located and kept, and remove the
Collateral therefrom to the premises of the Agent or any agent of the
Agent, for such time as the Agent may desire, in order effectively to
collect or liquidate the Collateral, and/or (ii) require such Grantor
to assemble the Collateral and make it available to the Agent at a
place to be designated by the Agent that is reasonably convenient to
both parties;
(d) The right to (i) demand payment of the Accounts; (ii)
enforce payment of the Accounts, by legal proceedings or otherwise;
(iii) exercise all of a Grantor's rights and remedies with respect to
the collection of the Accounts; (iv) settle, adjust, compromise,
extend or renew the Accounts; (v) settle, adjust or compromise any
legal proceedings brought to collect the Accounts; (vi) if permitted
by applicable law, sell or assign the Accounts upon such terms, for
such amounts and at such time or times as the Agent deems advisable;
(vii) discharge and release the Accounts; (viii) take control, in any
manner, of any item of payment or proceeds referred to in Section 4
above; (ix) prepare, file and sign a Grantor's name on a Proof of
Claim in bankruptcy or similar document against any Account Debtor;
(x) prepare, file and sign a Grantor's name on any notice of Lien,
assignment or satisfaction of Lien or similar document in connection
with the Accounts; (xi) endorse the name of a Grantor upon any chattel
paper, document, instrument, invoice, freight bill, bill of lading or
similar document or agreement relating to the Accounts or Inventory;
(xii) use a Grantor's stationery for verifications of the Accounts and
notices thereof to Account Debtors; (xiii) use the information
recorded on or contained in any data processing equipment and computer
hardware and software relating to any Collateral to which a Grantor
has access; and (xiv) do all acts and things and execute all documents
necessary, in Agent's sole discretion, to collect the Accounts; and
(e) The right to sell, assign, lease or to otherwise dispose
of all or any Collateral in its then existing condition, or after any
further manufacturing or processing
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thereof, at public or private sale or sales, with such notice as may
be required by law, in lots or in bulk, for cash or on credit, with or
without representations and warranties, all as the Agent, in its sole
discretion, may deem advisable. The Agent shall have the right to
conduct such sales on a Grantor's premises or elsewhere and shall have
the right to use a Grantor's premises without charge for such sales
for such time or times as the Agent may see fit. The Agent may, if it
deems it reasonable, postpone or adjourn any sale of the Col lateral
from time to time by an announcement at the time and place of such
postponed or adjourned sale, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
Each Grantor agrees that the Agent has no obligation to preserve
rights to the Collateral against prior parties or to marshall any
Collateral for the benefit of any Person. The Agent is hereby granted
a license or other right to use, without charge, each Grantor's
labels, patents, copyrights, rights of use of any name, trade secrets,
trade names, trademarks and advertising matter, or any property of a
similar nature, as it pertains to the Collateral, in completing
production of, advertising for sale and selling any Collateral and a
Grantor's rights under any license and any franchise agreement shall
inure to the Agent's benefit. If any of the Collateral shall require
repairs, maintenance, preparation or the like, or is in process or
other unfinished state, the Agent shall have the right, but shall not
be obligated, to perform such repairs, maintenance, preparation,
processing or completion of manufacturing for the purpose of putting
the same in such saleable form as the Agent shall deem appropriate,
but the Agent shall have the right to sell or dispose of the
Collateral without such processing. In addition, each Grantor agrees
that in the event notice is necessary under applicable law, written
notice mailed to such Grantor in the manner specified herein seven (7)
days prior to the date of public sale of any of the Collateral or
prior to the date after which any private sale or other disposition of
the Collateral will be made shall constitute commercially reasonable
notice to such Grantor. All notice is hereby waived with respect to
any of the Collateral which threatens to decline speedily in value or
is of a type customarily sold on a recognized market. The Agent may
purchase all or any part of the Collateral at public or, if permitted
by law, private sale, free from any right of redemption which is
hereby expressly waived by such Grantor and, in lieu of actual payment
of such purchase price, may set off the amount of such price against
the Secured Obligations. The net cash proceeds resulting from the
collection, liquidation, sale, lease or other disposition of the
Collateral shall be applied first to the expenses (including all
attorneys' fees) of retaking, holding, storing, processing and
preparing for sale, selling, collecting, liquidating and the like, and
then to the satisfaction of all Secured Obligations. Any sale or other
disposition of the Collateral and the possession thereof by the Agent
shall be in compliance with all provisions of applicable law
(including applicable provisions of the Uniform Commercial Code). Each
Grantor shall be liable to the Agent, for the benefit of the Lenders,
and shall pay to the Agent, for the benefit of the Lenders, on demand
any deficiency which may remain after such sale, disposition,
collection or liquidation of the Collateral. The Agent shall remit to
such Grantor or other Person entitled thereto any surplus remaining
after this Agreement has been terminated in accordance with Section 27
hereof.
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14. ANTI-MARSHALLING PROVISIONS. The right is hereby given by each
Grantor to the Agent, for the benefit of the Lenders, to make releases (whether
in whole or in part) of all or any part of the Collateral agreeable to the
Agent without notice to, or the consent, approval or agreement of other parties
and interests, including junior lienors, which releases shall not impair in any
manner the validity of or priority of the Liens and security interests in the
remaining Collateral conferred under such documents, nor release such Grantor
from personal liability for the Secured Obligations hereby secured.
Notwithstanding the existence of any other security interest in the Collateral
held by the Agent, for the benefit of the Lenders, the Agent shall have the
right to determine the order in which any or all of the Collateral shall be
subjected to the remedies provided in this Agreement. The proceeds realized
upon the exercise of the remedies provided herein shall be applied by the
Agent, for the benefit of the Lenders, in the manner herein provided. Each
Grantor hereby waives any and all right to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by applicable law
or provided herein.
15. APPOINTMENT OF AGENT AS A GRANTOR'S LAWFUL ATTORNEY. Without
limitation of any other provision of this Agreement, upon and after an
Acceleration Event, each Grantor irrevocably designates, makes, constitutes and
appoints the Agent (and all Persons designated by the Agent), for the benefit
of the Lenders, as such Grantor's true and lawful attorney (and agent-in-fact)
to take all actions and to do all things required to be taken or done by such
Grantor under this Agreement. All acts of the Agent or its designee taken
pursuant to this Section 15 are hereby ratified and confirmed and the Agent or
its designee shall not be liable for any acts of omission or commission nor for
any error of judgment or mistake of fact or law, other than as a result of its
gross negligence or willful misconduct. This power, being coupled with an
interest, is irrevocable by such Grantor until this Agreement has been
terminated in accordance with Section 27 hereof.
16. RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC. The enumeration
of the rights and remedies of the Agent, for the benefit of the Lenders, set
forth in this Agreement is not intended to be exhaustive and the exercise by
any Secured Party of any right or remedy shall not preclude the exercise of any
other rights or remedies, all of which shall be cumulative, and shall be in
addition to any other right or remedy given hereunder, or under any other
agreement between a Grantor and the Secured Parties or which may now or
hereafter exist in law or in equity or by suit or otherwise. No delay or
failure to take action on the part of any Secured Party in exercising any
right, power or privilege shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude other
or further exercise thereof or the exercise of any other right, power or
privilege or shall be construed to be a waiver of any Event of Default. No
waiver by a party hereunder shall be effective unless it is in writing and
signed by the party making such waiver, and then only to the extent
specifically stated in such writing. No course of dealing between a Grantor and
the Agent or the Agent's agents or employees shall be effective to change,
modify or discharge any provision of this Agreement or to constitute a waiver
of any Event of Default. The Agent shall not have any liability for any error,
omission or delay of any kind occurring in the handling or liquidation of the
Collateral or
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for any damages resulting therefrom, other than as a result of its gross
negligence or willful misconduct.
17. SUPPLEMENTAL DOCUMENTATION. At the Agent's request, each Grantor
shall execute and deliver to the Agent, at any time or times hereafter, all
documents, instruments and other written matter that the Agent may request to
perfect and maintain perfected the Agent's (for the benefit of the Lenders)
security interest in the Collateral, in form and substance acceptable to the
Agent, and pay all charges, expenses and fees the Agent may reasonably incur in
filing any of such documents, and all taxes relating thereto. Each Grantor
agrees that a carbon, photographic, photostatic, or other reproduction of this
Agreement or a financing statement is sufficient as a financing statement and
may be filed by the Agent in any filing office.
18. WAIVERS. In addition to the other waivers contained herein, each
Grantor hereby expressly waives, to the extent permitted by law: presentment
for payment, demand, protest, notice of demand, notice of protest, notice of
default or dishonor, notice of payments and nonpayments and all other notices
and consents to any action taken by the Agent unless expressly required by this
Agreement.
19. TRADE NAMES. Each Grantor represents that the only trade name(s)
or style(s) used by such Grantor are as set forth on Exhibit D, next to the
name of such Grantor.
20. NOTICE. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective on the day on which delivered to
such party (against receipt therefor) at the address set forth below or such
other address as such party shall specify to the other parties in writing (or,
in the case of telephonic notice or notice by telecopy (where the receipt of
such message is verified by return) expressly provided for hereunder, when
received at such telephone or telecopy number as may from time to time be
specified in written notice to the other parties hereto or otherwise received),
or if sent prepaid by certified or registered mail return receipt requested on
the third Business Day after the day on which mailed, or if sent prepaid by a
national overnight courier service, on the first Business Day after the day on
which delivered to such service against receipt therefor, addressed to such
party at said address:
(a) if to any Grantor: c/o Bolle Inc.
555 Theodore Fremd Avenue
Rye, New York 10580
Attention: Mr. Ian G.H. Ashken
Telephone: (914) 967-9400
Telefacsimile: (914) 967-9405
Name: NB.BOLLE.SECURITY.AGREEMENT
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with a copy to: Kane Kessler, P.C.
1350 Avenue of the Americas
New York, New York 10019
Attention: Robert L. Lawrence, Esq.
Telephone: (212) 541-6222
Telefacsimile: (212) 245-3009
(b) if to the Agent: NationsBank, N.A.
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Dana Weir, Agency Services
Telephone: (704) 388-3917
Telefacsimile: (704) 386-9923
with a copy to: NationsBank, N.A.
Corporate Banking
767 Fifth Avenue, 5th Floor
New York, New York 10153-0083
Attention: Ms. Susan Timmerman,
Senior Vice President
Telephone: (212) 407-5387
Telefacsimile: (212) 593-1083
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 20.
21. DEFINITIONS. All terms used herein shall be defined in accordance
with the appropriate definitions appearing in the Uniform Commercial Code as in
effect in New York, and such definitions are hereby incorporated herein by
reference and made a part hereof.
22. ENTIRE AGREEMENT. This Agreement, together with the Credit
Agreement, the Guaranty Agreement and other Loan Documents, constitutes and
expresses the entire understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior agreements and
understandings, inducements, commitments or conditions, express or implied,
oral or written, except as herein contained. The express terms hereof control
and supersede any course of performance or usage of the trade inconsistent with
any of the terms hereof. Neither this Agreement nor any portion or provision
hereof may be changed, altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than by an agreement, in
writing signed by the parties hereto.
23. SWAP AGREEMENTS. All Hedging Obligations of any Grantor shall be
deemed to be Secured Obligations secured hereby, and each Lender or affiliate
of a Lender party to any Swap Agreement shall be deemed to be a Secured Party
hereunder.
24. SEVERABILITY. The provisions of this Agreement are independent of
and separable from each other. If any provision hereof shall for any reason be
held invalid or unenforceable,
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such invalidity or unenforceability shall not affect the validity or
enforceability of any other provision hereof, but this Agreement shall be
construed as if such invalid or unenforceable provision had never been
contained herein.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each Grantor, and the rights, remedies, powers, and
privileges of the Agent hereunder shall inure to the benefit of the successors
and assigns of the Agent; provided, however, that no Grantor shall make any
assignment hereof without the prior written consent of the Agent.
26. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
27. TERMINATION; RELEASE. On the Facility Termination Date, this
Agreement and all obligations of each Grantor hereunder shall terminate without
delivery of any instrument or performance of any act by any party, and the
Collateral shall automatically be released from the Liens created by this
Agreement and all rights to such Collateral shall automatically revert to such
Grantor. Notwithstanding the immediately preceding sentence, upon such
termination of this Agreement, the Agent shall reassign and redeliver such
Collateral then held by or for the Agent and execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to evidence
such termination.
28. BOLLE AMERICA, INC. DENVER LEASE. Each Grantor, individually and
collectively, covenants and agrees that Bolle America, Inc. shall, not more
than one-hundred and eighty (180) days after the date hereof, enter into a
commercial lease of real property for a warehouse and related facilities
located in or around Denver, Colorado (the "New Denver Facility"), which New
Denver Facility shall be in substitution for Bolle America, Inc.'s existing
facility located in Denver, Colorado and identified in Exhibit B hereto (the
"Old Denver Facility"). Each Grantor further covenants and agrees that Bolle
America, Inc. shall not occupy the Old Denver Facility, nor shall any Inventory
be found or located therein, after the date that is one-hundred and eighty
(180) days after the date hereof.
29. LEASE ASSIGNMENT AND LANDLORD WAIVER. If at any time any Grantor
moves a significant portion of its Inventory from any location identified in
Exhibit B hereto to a leased or rented building, warehouse or other facility of
whatever description not identified in Exhibit B (each a "New Leased
Facility"), including but not limited to the New Denver Facility described in
Section 28 hereto, each Grantor hereby agrees that it will execute and deliver
to the Agent, for the benefit of the Agent and the Lenders, an assignment of
such Grantor's interest in the lease with respect to each such New Leased
Facility, as applicable, in form and substance satisfactory to the Agent. Each
Grantor further agrees that at such time, and as applicable, it will deliver or
cause to be delivered to the Agent, for the benefit of the Agent and the
Secured Parties, a landlord's waiver executed by the owner, or any other Person
serving as landlord, of such New Leased Facility, in form and substance
reasonably satisfactory to the Agent.
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30. GOVERNING LAW.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
(B) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE
VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PARTY PROVIDED
BY SECTION 20 HEREOF, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY PARTY OR ANY OF SUCH
PARTY'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT
PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER,
BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY
HEREBY AGREES, TO
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THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND
EACH PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
[SIGNATURE PAGES FOLLOW]
Name: NB.BOLLE.SECURITY.AGREEMENT
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IN WITNESS WHEREOF, the parties have duly executed this Second Amended
and Restated Security Agreement on the day and year first written above.
GRANTORS:
BOLLE INC.
By: /s/ Desiree DeStefano
Name:
Title:
BOLLE AMERICA, INC.
By: /s/ Desiree DeStefano
Name:
Title:
ORC MANAGEMENT CORPORATION
By: /s/ Desiree DeStefano
Name:
Title:
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION, as Agent
for the Lenders
By: /s/ Susan Timmerman
Name:
Title:
SECURITY AGREEMENT
Signature Page 1 of 1
Name: NB.BOLLE.SECURITY.AGREEMENT
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<PAGE>
EXHIBIT A
Location of Accounts
BOLLE INC. 3890 Elm Street (Owned or Leased?)
Denver, Colorado 80207
BOLLE AMERICA, INC. 3890 Elm Street (Owned or Leased?)
Denver, Colorado 80207
ORC MANAGEMENT
CORPORATION
Name: NB.BOLLE.SECURITY.AGREEMENT
Doc No: 190339 (FINAL)
<PAGE>
EXHIBIT B
Location of Inventory
BOLLE INC. N/A
BOLLE AMERICA, INC. 5140 East 39th Avenue (Leased)
Denver, Colorado 80207
5142 East 39th Avenue (Leased)
Denver, Colorado 80207
[3890 Elm Street (Owned or Leased?)
Denver, Colorado 80207]
[3890 Elm Street (Owned or Leased?)
Denver, Colorado 80207]
ORC MANAGEMENT
CORPORATION
Name: NB.BOLLE.SECURITY.AGREEMENT
Doc No: 190339 (FINAL)
<PAGE>
EXHIBIT C
Location of Equipment
BOLLE INC. 3890 Elm Street (Owned or Leased?)
Denver, Colorado 80207
BOLLE AMERICA, INC. 5140 East 39th Avenue (Leased)
Denver, Colorado 80207
5142 East 39th Avenue (Leased)
Denver, Colorado 80207
3890 Elm Street (Owned or Leased?)
Denver, Colorado 80207
3890 Elm Street (Owned or Leased?)
Denver, Colorado 80207
ORC MANAGEMENT
CORPORATION
Name: NB.BOLLE.SECURITY.AGREEMENT
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<PAGE>
EXHIBIT D
Trade Names and Styles
BOLLE INC. None.
BOLLE AMERICA, INC. None.
ORC MANAGEMENT
CORPORATION
Name: NB.BOLLE.SECURITY.AGREEMENT
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<PAGE>
(f)
SECOND AMENDED AND RESTATED
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED INTELLECTUAL PROPERTY SECURITY
AGREEMENT (this "Agreement") is made as of March 11, 1998 by and among BOLLE
INC., a Delaware corporation (the "Borrower"), and CERTAIN SUBSIDIARIES OF THE
BORROWER PARTY HERETO (each a "Guarantor" and collectively with the Borrower,
the "Grantors"), and NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association, as Agent (the "Agent") for each of the lenders (the "Lenders" and
collectively with the Agent, the "Secured Parties") now or hereafter party to
the Credit Agreement (as defined below). All capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned thereto in
the Credit Agreement (as defined below);
W I T N E S S E T H:
WHEREAS, the Lenders, the Agent and BEC Group, Inc. ("BEC"), of which
the Borrower was formerly a direct subsidiary, are parties to that certain
Amended and Restated Credit Agreement dated as of July 10, 1997 (the "Existing
Credit Agreement"); and
WHEREAS, pursuant to that certain Assignment Agreement and First
Amendment to the Amended and Restated Credit Agreement, dated as of the date
hereof and effective immediately prior to the effectiveness of this Agreement,
between BEC, the Borrower, the Agent and the Lenders (the "Assignment and
Amendment"), BEC assigned to the Borrower, and the Borrower assumed from BEC,
among other liabilities, certain indebtedness owing by and obligations of BEC
under the Existing Credit Agreement such that the Borrower became a co-borrower
together with BEC under the Existing Credit Agreement; and
WHEREAS, certain of the Guarantors are parties to that certain Amended
and Restated Intellectual Property Security Agreement dated as of July 10, 1997
with the Agent (as amended, supplemented or otherwise modified, the "Existing
IP Security Agreement"); and
WHEREAS, certain of the Guarantors are parties to that certain Second
Amended and Restated Guaranty Agreement (the "Guaranty") dated as of the date
hereof pursuant to which each Guarantor guaranteed, or continued its guaranty
of, the obligations of the Borrower under the Credit Agreement; and
WHEREAS, the Grantors, the Agent, and the Lenders desire to amend and
restate that portion of the Existing IP Security Agreement in its entirety to
reflect changes in the parties required to be parties thereto and certain
changes in the Credit Agreement; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Credit Agreement, the Borrower is willing to continue its
grant to the Agent for the benefit of the Secured Parties of a security
interest in certain of its personal property and assets; and
<PAGE>
WHEREAS, as collateral security for payment and performance of its
obligations under the Guaranty, each Guarantor is willing to continue its grant
to the Agent for the benefit of the Secured Parties of a security interest in
certain of its intangible personal property and assets;
NOW, THEREFORE, in order to induce the Secured Parties to enter into
the Loan Documents and in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby amend and restate the
Existing IP Security Agreement in its entirety as follows:
SECTION 1. GRANT OF SECURITY. Each Grantor hereby reaffirms, regrants
and continues its grant and collateral assignment, and does hereby grant and
collaterally assign, to the Agent for the benefit of the Secured Parties of a
security interest in all of the following (collectively, the "Collateral"):
(a) all of such Grantor's right, title and interest, whether
now owned or hereafter acquired, in and to all United States and
foreign patents and patent applications (including without limitation
the patents and patent applications identified on Schedule I attached
hereto and incorporated herein by reference) and including the right
to recover for all past, present and future infringements thereof and
all reissues, divisions, continuations, continuations-in-part,
substitutes, renewals, and extensions thereof, all improvements
thereon, and all other rights of any kind whatsoever of such Grantor
accruing thereunder or pertaining thereto (collectively, the
"Patents");
(b) all of such Grantor's right, title and interest, whether
now owned or hereafter acquired, in and to all United States and
foreign trademarks, trade names, trade dress, service marks, trademark
and service mark registrations, and applications for trademark or
service mark registration and any renewals thereof (including without
limitation each trademark, trade name, trade dress, registration and
application identified in Schedule II attached hereto and incorporated
herein by reference) and including all income, royalties, damages and
payments now and hereafter due and/or payable with respect thereto
(including without limitation damages for past or future infringements
thereof), the right to sue or otherwise recover for all past, present
and future infringements thereof, all rights corresponding thereto
throughout the world (but only such rights as now exist or may come to
exist under applicable local law) and all other rights of any kind
whatsoever of each Grantor accruing thereunder or pertaining thereto,
together in each case with the goodwill of the business connected with
the use of, and symbolized by, each such trademark and service mark
(collectively, the "Trademarks");
(c) all of such Grantor's right, title and interest, whether
now owned or hereafter acquired, in and to all United States and
foreign copyrights and copyright applications (including without
limitation the copyrights and copyright applications identified on
Schedule III attached hereto and incorporated herein by reference) and
including the right to recover for all past, present and future
infringements thereof and all reissues, divisions, continuations,
continuations-in-part, substitutes, renewals, and extensions thereof,
all improvements thereon, and all other rights of any kind whatsoever
of such Grantor accruing thereunder or pertaining thereto
(collectively, the "Copyrights");
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(d) All license agreements regarding Patents, Trademarks or
Copyrights with any other party (including any patent, trademark,
copyright and other items described in the definitions of Patents,
Trademarks or Copyrights that do not qualify as such only because no
Grantor has any right, title or interest therein other than rights
pursuant to such license agreements), whether such Grantor is a
licensor or licensee under any such license agreement (including
without limitation the Distributorship Agreement dated December 15,
1992 by and between Bolle America, Inc. and Etablissements Bolle
S.N.C., as amended, most recently by Amendment to the Distributorship
Agreement effective of even date herewith between such parties (as so
amended, the "Bolle France license") and each of the licenses listed
on Schedule IV attached hereto and incorporated herein by reference),
and the right to prepare for sale, sell and advertise for sale, all
Inventory (as defined in the Security Agreement) now or hereafter
owned by such Grantor and now or hereafter covered by such licenses
(collectively, the "Licenses")); and
(e) all proceeds of any of the foregoing.
In addition, each Grantor has executed in blank and delivered to the
Agent an assignment of licenses and federally registered patents, trademarks
and copyrights (the "IP Assignment") owned by it, if any, in substantially the
form of Exhibit A hereto. Each Grantor hereby authorizes the Agent to complete
as Assignee and record with the United States Patent and Trademark Office (the
"PTO") and United States Copyright Office (the "Copyright Office") each IP
Assignment upon the occurrence of an Acceleration Event. For the purposes of
this Agreement, "Acceleration Event" means that (a) an Event of Default has
occurred and is continuing and (b) the Secured Obligations have become due and
payable (whether by acceleration, at final maturity or otherwise).
SECTION 2. SECURITY FOR OBLIGATIONS. The security interests and
collateral assignments granted under this Agreement (the "Security Interests")
by each Grantor secure the payment of all obligations of such Grantor under, in
respect of or in connection with this Agreement, the Credit Agreement, the
Guaranty and each other Loan Document to which such Grantor is or becomes a
party (all such obligations being the "Secured Obligations").
The Security Interests granted by this Agreement are granted in
conjunction with, and not in limitation of, the security interests granted to
the Agent, for the benefit of the Lenders, in other assets of each Grantor
pursuant to the other Loan Documents.
SECTION 3. COLLATERAL ASSIGNMENT. In addition to, and not in
limitation of, the grant of a security interest in the Patents, Trademarks,
Copyrights and Licenses in Section 1 above, each Grantor hereby regrants,
reassigns, retransfers and reconveys, and grants, assigns, transfers and
conveys, to the Agent, for the benefit of the Lenders, the Assignor's entire
right, title and interest in and to the Patents, Trademarks, Copyrights and
Licenses; provided, that such grant, assignment, transfer and conveyance shall
become effective only at the election of the Agent after the occurrence of an
Acceleration Event. The Grantor hereby agrees that after the occurrence of an
Acceleration Event the use by the Agent of any of the Patents, Trademarks,
Copyrights and Licenses shall be without any liability for royalties or other
related charges from the Agent to any Grantor.
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SECTION 4. FURTHER ASSURANCES.
(a) Each Grantor agrees that from time to time, at the
expense of such Grantor, such Grantor will promptly execute and
deliver all further instruments and documents and take all further
action that may be necessary or desirable, or that the Agent may
reasonably request, in order to (i) continue, perfect and protect any
Security Interest granted or purported to be granted hereby, (ii)
perfect the Agent's (for the benefit of the Lenders) Security Interest
in and assign to the Agent, for the benefit of the Lenders, as
security for the repayment and satisfaction of the Secured
Obligations, all Collateral located in any foreign jurisdiction, and
(iii) enable the Agent, for the benefit of the Lenders, to exercise
and enforce its rights and remedies hereunder with respect to any part
of the Collateral. Without limiting the generality of the foregoing,
each Grantor will execute and file (with the appropriate governmental
offices, authorities, agencies and regulatory bodies in the United
States and any applicable foreign jurisdiction) such supplements to
this Agreement and such financing or continuation statements, or
amendments thereto, and such other instruments or notices, including
an executed IP Assignment, with the PTO and the Copyright Office, as
may be necessary or desirable, or as the Agent, on behalf of the
Lenders, may reasonably request, in order to perfect and preserve the
Security Interests granted or purported to be granted hereby.
(b) Each Grantor hereby authorizes the Agent, on behalf of
the Lenders, upon the occurrence and during the continuation of an
Event of Default, to file, where permitted by law, one or more
financing or continuation statements, and amendments thereto, relative
to all or any part of the Collateral without the signature of such
Grantor. A carbon, photographic or other reproduction of this
Agreement or any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing statement where
permitted by law.
(c) Each Grantor will furnish to the Agent, on behalf of the
Lenders, from time to time statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as the Agent, on behalf of the Lenders,
may reasonably request, all in reasonable detail.
(d) Each Grantor agrees that, should it have or obtain an
ownership interest in any United States or foreign patent or patent
application that is not now identified on Schedule I, any trademark or
trademark application that is not now identified on Schedule II or any
copyright or copyright application that is not now identified on
Schedule III or any license agreement in respect of any patent,
trademark or copyright that is not now identified on Schedule IV: (i)
the provisions of this Agreement shall automatically apply to such
item, and such item shall automatically become part of the Collateral;
and (ii) such Grantor shall, within three months after acquiring or
becoming aware of such ownership interest, (A) give written notice
thereof to the Agent and, (B) with respect to material Trademarks,
present such Trademarks for proper registration with the PTO, (C) with
respect to material Copyrights, present such Copyrights for proper
registration with the Copyright Office and (D) with respect to patents
and patent applications and trademarks and trademark applications,
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prepare, execute and file in the PTO or if appropriate in the
equivalent agencies in any foreign jurisdiction, within the requisite
time period, all documents that are known by such Grantor to be
necessary or that the Agent, on behalf of the Lenders, reasonably
requests in order to perfect the Security Interest of the Agent, on
behalf of the Lenders, therein. Each Grantor authorizes the Agent, on
behalf of the Lenders, to execute and file such a document in the name
of such Grantor if such Grantor fails to do so.
(e) Each Grantor agrees that should any of its domestic
Subsidiaries (other than a corporation which is a party hereto and
whether now or hereafter existing) obtain any ownership interest in
any United States or foreign patent or patent application, trademarks
or trademark application, trademarks, trade names, trade dress,
service marks, trademark and service mark registrations, and
applications for trademark or service mark registration and any
renewals thereof, such Grantor shall either cause such corporation (i)
to become a party to the Guaranty and a party hereto, or (ii) to
transfer and assign all such corporation's ownership interests therein
to such Grantor, whereupon the provisions of subsection (d) of this
Section 4 shall be applicable thereto.
(f) To the extent necessary or economically desirable in the
conduct of its business, each Grantor agrees: (i) to take all
necessary steps in any proceeding before the PTO or any similar office
or agency in any other country or any political subdivision thereof or
in any court, to maintain and pursue each patent application now or
hereafter included in the Collateral and to maintain each patent,
trademark or copyright now or hereafter included in the Collateral,
including the filing of divisional, continuation, continuation-in-part
and substitute applications, the filing of applications for reissue,
renewal or extensions, the payment of maintenance fees, and the
participation in interference, reexamination, opposition and
infringement proceedings; (ii) to take corresponding steps with
respect to material unpatented inventions on which such Grantor is now
or hereafter becomes entitled to seek protection; (iii) to bear any
expenses incurred in connection with such activities; and (iv) not to
abandon any right to file a material patent application, or abandon
any material pending application with respect to any of the
Collateral, without the written consent of the Agent, which consent
shall not be unreasonably withheld.
(g) No Grantor shall do any act or omit to do any act whereby
any of the Collateral may become dedicated or abandoned, except where
such dedication or abandonment (i) will not adversely affect the
aggregate economic value of the Collateral after giving effect to such
dedication or abandonment or materially adversely affect the business,
condition (financial or otherwise), operations, performance, or
properties of such Grantor individually or of such Grantor and its
Subsidiaries taken as a whole, and (ii) is in the ordinary course of
such Grantor's business. Each Grantor agrees to notify the Agent
promptly and in writing if it learns that any of the Collateral may
become abandoned or dedicated or of any adverse determination or any
development (including without limitation the institution of any
proceeding in the PTO, or in the equivalent agencies in any foreign
jurisdiction, or any court) regarding any material part of the
Collateral.
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(h) In the event that any of the Collateral as to which it
has granted the Security Interests is infringed or misappropriated by
a third party, such Grantor shall promptly notify the Agent and shall,
unless such Grantor shall reasonably determine that such Collateral
would not reasonably be likely to, in the aggregate, be of material
economic value to such Grantor, take all reasonable steps to terminate
the infringement or misappropriation, and take such other actions as
such Grantor shall deem appropriate under the circumstances to protect
such Collateral. Any expense incurred in connection with such
activities shall be borne by such Grantor.
(i) Each Grantor agrees (i) to maintain the quality of any
and all products in connection with which the Collateral is used,
consistent with the quality standards established by such Grantor for
said products as of the date of determination, and (ii) to provide the
Agent, on behalf of the Lenders, at least quarterly, with a
certificate of an officer of such Grantor certifying such Grantor's
compliance with the foregoing subsections (a) through (i).
(j) Each Grantor agrees that it will promptly correct any
defect or error that may be discovered in (i) this Agreement, (ii) any
document executed pursuant hereto or (iii) the execution,
acknowledgment or recordation thereof.
(k) Each Grantor shall continue to mark its products
according to applicable law with the numbers of all appropriate
Patents.
(l) Each Grantor shall cause each of its subsidiaries to do
all things reasonably necessary to keep in full force and effect the
Bolle France license and shall not, and shall cause each of its
subsidiaries not to, take any action, or fail to take any action,
which would amend, revise, supplement or otherwise alter the terms of
the Bolle France license as in effect on the date hereof or which
would result, directly or indirectly, in the Bolle France license not
being legally valid and enforceable in accordance with its terms
against the licensor thereof or otherwise result in its cancellation
or termination. No Grantor shall grant any sublicense with respect to
the Bolle France license or grant any other rights or interests
therein to any other Person except as permitted in Section 10.19 to
the Credit Agreement.
SECTION 5. GENERAL REPRESENTATIONS AND WARRANTIES. Each Grantor
represents and warrants as follows:
(a) It has the unqualified right to enter into this Agreement
and to perform its terms.
(b) No authorization, consent, approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body or any other Person is required either (i) for the
grant by such Grantor of the Security Interests granted hereby or for
the execution, delivery or performance of this Agreement by such
Grantor, or (ii) for the perfection of or the exercise by the Agent,
on behalf of the Secured Parties, of its rights and remedies
hereunder, except for the filing of this Agreement with the PTO and
with the equivalent offices in any foreign jurisdiction with respect
to each Patent and Trademark, and
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the filings required by the Uniform Commercial Code of the State in
which such Grantor maintains its chief executive office, and except to
the extent that the exercise of rights and remedies may be limited by
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors rights generally or by general
principles of equity.
(c) Set forth on Schedule IV is a list, which is complete and
accurate in all material respects as of the date hereof, of the Bolle
France license and all other Licenses of such Grantor necessary for
the conduct of its business as currently conducted or utilized and
material in such Grantor's operations or materially used in the
selling or marketing of such Grantor's products, including the
expiration date of such Licenses.
(d) Each License of such Grantor identified on Schedule IV is
validly subsisting and has not been adjudged invalid or unenforceable,
in whole or in part, and is, to such Grantor's knowledge, valid and
enforceable. No action or proceeding is pending or threatened (i)
seeking to limit, cancel or question the validity of the Bolle France
license, or of an aggregate amount of Collateral that would be
reasonably likely to be of material economic value or (ii) which, if
adversely determined, would have an adverse effect on the Bolle France
license, or on the economic value of the Collateral taken as a whole.
(e) It has notified the Agent in writing of all uses of any
Patent, Trademark or Copyright, prior to such Grantor's use, of which
such Grantor is aware, which would in the reasonable judgment of such
Grantor lead to such item becoming invalid or unenforceable, including
prior unauthorized uses by third parties and uses that were not
supported by the goodwill of the business connected with such item.
(f) It has not granted any release, covenant not to sue, or
non-assertion assurance to any third person, nor allowed any shop
right to arise with respect to any third person, with respect to any
part of the Collateral that would be reasonably likely, in the
aggregate, to be of material economic value.
(g) Its products have been marked as required by applicable
law with respect to the Collateral.
(h) The actions contemplated under or in connection with the
Loan Documents will not impair the legal right of such Grantor to use
any of the Collateral.
(i) Except as disclosed to the Lenders in writing prior to
the date of this Agreement, such Grantor has no knowledge of the
existence of any right under any patent, trademark, license agreement,
trade name, trade secret, know-how, confidential research, development
and commercial information, or other proprietary information held by
any other Person that would preclude such Grantor from publishing,
distributing, marketing, selling, or using any product currently made
by it, being made for it or sold or used by it, imported by it or
exported by it, as the case may be, or to use any processes currently
used by it (except, in each case, to the extent that such Grantor has
granted an exclusive license to another
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Person), or materially interfere with the ability of such Grantor to
carry on its business as currently carried on, and such Grantor has no
knowledge of any claim to the contrary that is likely to be made.
(j) Such Grantor has used consistent standards of quality in
manufacturing, distribution and marketing of each product sold and
provision of each service provided under any Collateral, and has taken
all steps necessary to ensure that all licensed users of any
Collateral use such consistent standards of quality.
(k) No Subsidiaries and none of such Grantor's Subsidiaries
(except to the extent that such Subsidiaries are also Grantors
hereunder) has an ownership interest in any patents, patent
applications, copyrights, copyright applications, trademark, trade
name, trade dress, service marks, trademark or service mark
registrations or any applications for trademark or service mark
registration.
(l) No claim has been made (and, as to Collateral with
respect to which such Grantor is a licensor, to the knowledge of such
Grantor, no claim has been made against the third party licensee), and
such Grantor has no knowledge of any claim that is likely to be made,
that the use by such Grantor of any Collateral does or may violate the
rights of any Person.
(m) The Bolle France license has been duly authorized,
executed and delivered by each of the parties thereto and is legally
valid and enforceable against all such parties in accordance with its
terms and its execution and performance does not and will not violate
any organizational documents or contractual obligations of any party
thereto.
SECTION 6. PATENT REPRESENTATIONS AND WARRANTIES. Each Grantor
represents and warrants as follows:
(a) It is the sole legal and beneficial owner of the Patents
set forth opposite its name on Schedule I hereto, free and clear of
any Lien, security interest, option, charge, pledge, assignment
(whether conditional or not), or any other encumbrance except for the
security interests created or permitted by this Agreement or the
Credit Agreement and certain Licenses and registered user agreements
described on Schedule IV and the Permitted Liens or Liens granted to
the Agent pursuant to the Existing IP Security Agreement (the
"Existing Bank Liens"), which Liens are continued and regranted
pursuant to this Agreement, and no effective financing statement or
other instrument similar in effect covering all or any part of such
Collateral, except in connection with Existing Bank Liens, is on file
in any recording office, except such as may have been filed in favor
of the Agent, for the benefit of the Lenders.
(b) Set forth on Schedule I is a list, which is complete and
accurate in all material respects as of the date hereof, of all of the
Patents owned by such Grantor necessary for the conduct of its
business as currently conducted or utilized and material in such
Grantor's operations or materially used in the selling or marketing of
such Grantor's products.
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(c) Each Patent of such Grantor identified on Schedule I
hereto is subsisting and has not been adjudged unpatentable, invalid
or unenforceable, in whole or in part and is, to the knowledge of such
Grantor, patentable, valid and enforceable and each of such Patent
applications has been filed in conformity with applicable rules and
procedures of the PTO and of the equivalent agencies in each
applicable foreign jurisdiction and will be diligently prosecuted in
conformity therewith so as to not improperly become abandoned.
SECTION 7. TRADEMARK REPRESENTATIONS AND WARRANTIES. Each Grantor
represents and warrants as follows:
(a) It is the sole, legal and beneficial owner of the entire
right, title and interest in and to the Trademarks purported to be
granted by it hereunder, free and clear of any Lien, security
interest, option, charge, pledge, registered user agreement,
assignment (whether conditional or not), or covenant, or any other
encumbrance, except for the Security Interests created or permitted by
this Agreement or the Credit Agreement and certain Licenses and
registered user agreements described on Schedule IV or Permitted Liens
or Existing Bank Liens. No effective financing statement or other
instrument similar in effect covering all or any part of the
Trademarks purported to be granted by such Grantor hereunder, except
in connection with Existing Bank Liens, is on file in any recording
office, including, without limitation, the PTO and the equivalent
offices in any foreign jurisdiction, except such as may have been
filed in favor of the Agent, for the benefit of the Lenders.
(b) Set forth on Schedule II is a list, which is complete and
accurate in all material respects as of the date hereof, of all of the
Trademarks owned by such Grantor necessary for the conduct of its
business as currently conducted or utilized and material in such
Grantor's operations or materially used in the selling or marketing of
such Grantor's products.
(c) Each Trademark of such Grantor identified on Schedule II
is validly subsisting and has not been abandoned or adjudged invalid,
unregistrable or unenforceable, in whole or in part, and is, to such
Grantor's knowledge, valid, registrable and enforceable.
SECTION 8. COPYRIGHT REPRESENTATIONS AND WARRANTIES. Each Grantor
represents and warrants as follows:
(a) It is the sole, legal and beneficial owner of the entire
right, title and interest in and to the Copyrights purported to be
granted by it hereunder, free and clear of any Lien, security
interest, option, charge, pledge, registered user agreement,
assignment (whether conditional or not), or covenant, or any other
encumbrance, except for the Security Interests created or permitted by
this Agreement or the Credit Agreement and certain Licenses and
registered user agreements described on Schedule IV or Permitted Liens
or Existing Bank Liens. No effective financing statement or other
instrument similar in effect covering all or any part of the
Copyrights purported to be granted by such Grantor hereunder, except
in connection with Existing Bank Liens, is on file in any recording
office, including, without limitation, the PTO and the equivalent
offices in any foreign jurisdiction, except such as may have been
filed in favor of the Agent, for the benefit of the Lenders.
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(b) Set forth on Schedule III is a list, which is complete
and accurate in all material respects as of the date hereof, of all of
the Copyrights owned by such Grantor necessary for the conduct of its
business as currently conducted or utilized and material in such
Grantor's operations or materially used in the selling or marketing of
such Grantor's products.
(c) Each Copyright of such Grantor identified on Schedule III
is validly subsisting and has not been abandoned or adjudged invalid,
unregistrable or unenforceable, in whole or in part, and is, to such
Grantor's knowledge, valid, registrable and enforceable.
SECTION 9. TRANSFERS AND OTHER LIENS. No Grantor shall:
(a) sell, assign (by operation of law or otherwise) or
otherwise dispose of any of, or grant any option with respect to, the
Collateral, except as permitted by the Credit Agreement, except that
any Grantor may license the Collateral (i) in the ordinary course of
such Grantor's business, provided that such license is necessary or
desirable in the conduct of such Grantor's business, or (ii) in
connection with a sale of assets in compliance with the Credit
Agreement, provided that such license shall be on terms reasonably
expected to maximize the gain to such Grantor resulting from the
granting of such license. The Agent, for the benefit of the Lenders,
shall execute any documents that such Grantor may reasonably request
in order to permit the Grantor to exercise its right hereunder to
license the Trademarks, provided that the Agent shall not be required
to do anything that may, in the sole judgment of the Agent, adversely
affect the validity of the Security Interests or the assignment of the
Collateral located in any foreign jurisdiction;
(b) create or suffer to exist any Lien, security interest or
other charge or encumbrance upon or with respect to any of the
Collateral except for the Security Interests created by this Agreement
or other Permitted Liens; or
(c) take any other action in connection with any of the
Collateral that would impair the value of the interest or rights of
such Grantor in the Collateral taken as a whole or that would impair
the interest or rights of the Agent for the benefit of the Lenders.
SECTION 10. AGENT APPOINTED ATTORNEY-IN-FACT. Without limiting any
other provision of this Agreement, upon the occurrence and during the
continuance of an Acceleration Event (as hereinafter defined), each Grantor
hereby irrevocably appoints the Agent, for the benefit of the Lenders, as such
Grantor's attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor or otherwise, from time to time in the
Agent's discretion, to take any action and to execute any instrument that the
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including without limitation:
(a) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
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(b) to receive, endorse and collect any drafts or other
instruments, documents and chattel paper in connection with clause (a)
above;
(c) to file any claims or take any action or institute any
proceedings that the Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights
of the Agent, for the benefit of the Lenders, with respect to any of
the Collateral; and
(d) to execute, in connection with the sale provided for in
Section 14, any endorsement, assignments, or other instruments of
conveyance or transfer with respect to the Collateral.
For purposes of this Agreement, "Acceleration Event" means that (a) an
Event of Default has occurred and is continuing and (b) the Secured Obligations
have become due and payable (whether by acceleration, at final maturity or
otherwise).
SECTION 11. AGENT MAY PERFORM.
(a) If any Grantor fails to perform any agreement contained
herein, the Agent may itself perform, or cause performance of, such
agreement, and the expenses of the Agent incurred in connection
therewith shall be payable by such Grantor under Section 15(b) to the
fullest extent permitted by applicable law.
(b) The Agent or its designated representatives shall have
the right to the extent reasonably requested and upon reasonable prior
notice, at any reasonable time during normal business hours of such
Grantors and from time to time, to inspect the Grantors' premises and
to examine the Grantors' books, records and operations relating to the
Collateral.
SECTION 12. THE AGENT'S DUTIES. The powers conferred on the Agent, for
the benefit of the Lenders, hereunder are solely to protect the interest of the
Secured Parties in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder,
neither the Agent nor any Lender shall have any duty as to any Collateral or as
to the taking of any necessary steps to preserve rights against other parties
or any other rights pertaining to any Collateral. Each Secured Party shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which such party accords its own similar property.
SECTION 13. EVENTS OF DEFAULT. It is understood and agreed that, with
respect to any Grantor, the occurrence of any one or more of the following
shall constitute an "Event of Default" hereunder with respect to such Grantor
and shall entitle the Agent, for the benefit of the Lenders, to take such
actions as are elsewhere provided in this Agreement in respect of Events of
Default:
(a) an "Event of Default" or "Default" as defined in the
Credit Agreement shall have occurred and be continuing with respect to
the Borrower; or
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(b) an "Event of Default" or "Default" as defined in the
Guaranty shall have occurred and be continuing with respect to such
Grantor; or
(c) such Grantor shall have failed to pay the Agent all of
the Guarantors' Obligations in accordance with, and as defined in, the
Guaranty on the Business Day on which the Agent has demanded such
payment in accordance with the terms of the Guaranty; or
(d) any material representation or warranty made by such
Grantor herein, in the Credit Agreement or Guaranty or in any other
Loan Document shall prove to have been false in any material respect
when made; or
(e) any covenant made by such Grantor herein, in the Credit
Agreement, in the Guaranty or in any other Loan Document is breached,
violated, or not complied with and not cured, in the case of this
Agreement (other than with respect to any breach or violation of or
non-compliance with Sections 4(g), 4(l) and 9 hereof) within 30 days
after notice thereof from the Agent and, in the case of the other Loan
Documents, within any grace period applicable thereto, or if no grace
period is applicable and default thereunder does not result
immediately from such noncompliance; then not cured within 30 days
after notice thereof from the Agent or the Lenders; provided, however,
any breach or violation of or non-compliance with Section 4(g), 4(l)
and 9 hereof shall immediately result in an Event of Default.
SECTION 14. REMEDIES UPON ACCELERATION EVENT. If an Acceleration Event
shall have occurred and be continuing:
(a) The Agent, for the benefit of the Lenders, may exercise
in respect of the Collateral of any defaulting Grantor, in addition to
other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party upon default
under the Uniform Commercial Code (the "UCC") and also may (i)
exercise any and all rights and remedies of such Grantor under, in
connection with, or otherwise in respect of, such Collateral,
including the completion and filing of the IP Assignment, (ii) require
such Grantor to, and each Grantor hereby agrees that it will at its
expense and upon request of the Agent forthwith, assemble all or part
of the documents embodying such Collateral as directed by the Agent
and make it available to the Agent, for the benefit of the Lenders, at
a place to be designated by the Agent that is reasonably convenient to
both the Agent and such Grantor, (iii) occupy any premises owned or
leased by such Grantor where documents embodying such Collateral or
any part thereof are assembled for a reasonable period in order to
effectuate the Agent's rights and remedies hereunder or under
applicable law, without obligation to such Grantor in respect of such
occupation, (iv) license such Collateral or any part thereof, and (v)
without notice except as specified below, sell such Collateral or any
part thereof in one or more parcels at public or private sale, at any
of the Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Agent may deem commercially
reasonable. Each Grantor agrees that at least ten days' notice to such
Grantor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. The Agent shall not be obligated to make any sale of the
Collateral regardless of notice of sale having been given. The Agent
may adjourn any public or private
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sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned.
(b) All payments received by any defaulting Grantor under or
in connection with any of such Collateral shall be received in trust
for the benefit of the Lenders, shall be segregated from other funds
of such Grantor and shall be immediately paid over to the Agent, for
the benefit of the Lenders, in the same form as so received (with any
necessary endorsement).
(c) All payments made under or in connection with or
otherwise in respect of the Collateral of any defaulting Grantor, and
all cash proceeds received by the Agent in respect of any sale of,
collection from, or other realization upon all or any part of such
Collateral may, in the discretion of the Agent, be held by the Agent,
for the benefit of the Lenders, as collateral for, and then or at any
time thereafter applied (after payment of any amounts payable to the
Agent pursuant to Section 15) for the ratable benefit of the Secured
Parties against all or any part of the Secured Obligations, in such
order as the Agent shall elect. Any surplus of such cash or cash
proceeds held by the Agent, for the benefit of the Lenders, and
remaining after payment in full of all the Secured Obligations shall
be paid over to the respective Grantors or to whosoever may be
lawfully entitled to receive such surplus. Any sale or other
disposition of the Collateral and the possession thereof by the Agent
shall be in compliance with all provisions of applicable law
(including applicable provisions of the UCC).
SECTION 15. INDEMNITY AND EXPENSES.
(a) Each Grantor agrees to indemnify the Agent, for the
benefit of the Lenders, from and against any and all claims, losses
and liabilities growing out of or resulting from this Agreement that
are incurred by the Agent (including without limitation enforcement of
this Agreement), except claims, losses or liabilities resulting from
the Agent's gross negligence or willful misconduct.
(b) Each Grantor will upon demand pay to the Agent, for the
benefit of the Lenders, the amount of any and all reasonable expenses,
including the reasonable fees and disbursements of its counsel and of
any experts and agents, that the Agent, for the benefit of the
Lenders, may incur in connection with (i) the administration of this
Agreement, (ii) the custody, preservation, use or operation of, or the
sale of, collection from or other realization upon, any of the
Collateral, (iii) the exercise or enforcement of any of the rights of
the Secured Parties, or (iv) the failure by any Grantor to perform or
observe any of the provisions hereof.
SECTION 16. SECURITY INTEREST ABSOLUTE. All rights of the Secured
Parties in the Security Interests granted hereunder, and each of the Secured
Obligations, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement or any other Loan Document, or any other agreement or
instrument relating thereto;
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(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to departure from, the
Credit Agreement or any other Loan Document, including, but not
limited to, (i) an increase or decrease in the amount of the Secured
Obligations and (ii) an amendment of any Loan Document to permit the
Agent or the Lenders or any one or more of them to extend further or
additional credit to the Borrower in any form which credit shall
thereupon be and become subject to the Credit Agreement and the other
Loan Documents as a Secured Obligation;
(c) any taking and holding of collateral or guarantees
(including without limitation any collateral pledged as security for
the Secured Obligations under the Security Instruments) for all or any
of the Secured Obligations; or any amendment, alteration, exchange,
substitution, transfer, enforcement, waiver, subordination,
termination or release of any collateral or such guarantees (including
without limitation any collateral pledged as security for the Secured
Obligations under the Security Instruments), or any non-perfection of
any collateral, or any consent to departure from any such guaranty
(including without limitation any collateral pledged as security for
the Secured Obligations under the Security Instruments);
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Secured Obligations, or the manner of
sale of any collateral;
(e) any consent by the Secured Parties to the change,
restructure or termination of the corporate structure or existence of
the Borrower or any Grantor and any corresponding restructure of the
Secured Obligations, or any other restructure or refinancing of the
Secured Obligations or any portion thereof;
(f) any modification, compromise, settlement or release by
the Secured Parties, by operation of law or otherwise, collection or
other liquidation of the Secured Obligations or the liability of the
Borrower, any Grantor or any guarantor of the Secured Obligations
(including without limitation any guarantor under the Guaranty, other
than the Grantor against which this Agreement is to be enforced), or
of any collateral for the Secured Obligation (including without
limitation any collateral pledged as security for the Secured
Obligations under the Security Instruments), in whole or in part, and
any refusal of payment by the Agent or any Lender in whole or in part,
from any obligor or guarantor (including without limitation any
guarantor under the Guaranty, other than the Grantor against which
this Agreement is sought to be enforced) in connection with any of the
Secured Obligations, whether or not with notice to, or further assent
by, or any reservation of rights against, any Grantor; or
(g) any other circumstance (including without limitation any
statute of limitations) that might otherwise constitute a defense
available to, or a discharge of, the Borrower, any guarantor of the
Borrower's liabilities (including without limitation any Guarantor) or
a Grantor.
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The granting of a Security Interest in the Collateral shall continue
to be effective or be reinstated, as the case may be, if at any time any
payment of any of the Secured Obligations is rescinded or must otherwise be
returned by any Secured Party, upon the insolvency, bankruptcy or
reorganization of the Borrower or any Grantor or otherwise, all as though such
payment had not been made.
SECTION 17. WAIVER. Each Grantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Secured
Obligations and this Agreement and any requirement that the Secured Parties
protect, secure, perfect or insure any Security Interest or any Collateral
subject thereto or exhaust any right or take any action against any Grantor or
any other Person (including without limitation any guarantor under the
Guaranty) or any collateral securing payment of the Secured Obligations
(including without limitation any collateral pledged as security for the
Secured Obligations under the Security Instruments).
SECTION 18. SUBROGATION. Prior to termination of this Agreement in
accordance with the provisions of Section 21(c), no Grantor will exercise any
rights that it may acquire by way of subrogation under this Agreement. If an
amount shall be paid to such Grantor on account of such subrogation rights at
any time prior to termination of this Agreement in accordance with the
provisions of Section 21(c), such amount shall be held in trust for the benefit
of the Lenders and shall forthwith be paid to the Agent, for the benefit of the
Lenders, to be credited and applied upon the Secured Obligations, whether
matured or unmatured, in accordance with the terms of the Credit Agreement and
the Guaranty.
SECTION 19. AMENDMENTS, ETC.
(a) Except as provided in subsection (b) of this Section 18,
no amendment or waiver of any provision of this Agreement nor consent
to any departure by any Grantor therefrom shall in any event be
effective unless the same shall be in writing and signed by the Agent,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) Upon the execution and delivery by any Person of a
supplement to this Agreement pursuant to which such Person agrees to
become a party hereto (each an "Intellectual Property Security
Agreement Supplement"), (i) such Person or entity shall be referred to
as an "Additional Grantor" and shall be and become a Grantor and each
reference in this Agreement to "Grantor" shall also mean and be a
reference to such Additional Grantor, and (ii) the schedules attached
to each Intellectual Property Security Agreement Supplement shall be
incorporated into and become a part of and supplement Schedules I, II,
III and IV hereto, and the Agent may attach such supplements to such
Schedules, and each reference to such Schedules shall mean and be a
reference to such Schedules as supplemented pursuant hereto.
(c) Any person that executes an Intellectual Property
Security Agreement Supplement shall also execute and deliver such
financing statements and all further instruments and documents and
take all further action that may be necessary or desirable or
Name: NB.BOLLE.IP.SECURITY.AGREEMENT
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<PAGE>
that the Agent may reasonably request in order to perfect and protect
any Security Interest purported to be granted thereby.
SECTION 20. ADDRESSES FOR NOTICES. Any notice shall be conclusively
deemed to have been received by any party hereto and be effective on the day on
which delivered to such party (against receipt therefor) at the address set
forth below or such other address as such party shall specify to the other
parties in writing, (or, in the case of notice by telefacsimile (where receipt
of such notice is verified by return), when received at such telefacsimile
number as may from time to time be specified in written notice to the other
parties hereto or otherwise received) or, if sent prepaid by certified or
registered mail return receipt requested on the third Business Day after the
day on which mailed, or, if sent prepaid by a national overnight courier
service, on the first Business Day after the day on which delivered to such
service against receipt therefor, addressed to such party at said address:
(a) if to any Grantor: c/o Bolle Inc.
555 Theodore Fremd Avenue
Rye, New York 10580
Attention: Mr. Ian G.H. Ashken
Telephone: (914) 967-9400
Telefacsimile: (914) 967-9405
with a copy to: Kane Kessler, P.C.
1350 Avenue of the Americas
New York, New York 10019
Attention: Robert L. Lawrence, Esq.
Telephone: (212) 541-6222
Telefacsimile: (212) 245-3009
(b) if to the Agent: NationsBank, N.A.
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Dana Weir, Agency Services
Telephone: (704) 388-3917
Telefacsimile: (704) 386-9923
with a copy to: NationsBank, N.A.
Corporate Banking
767 Fifth Avenue, 5th Floor
New York, New York 10153-0083
Attention: Ms. Susan Timmerman,
Senior Vice President
Telephone: (212) 407-5387
Telefacsimile: (212) 593-1083
Name: NB.BOLLE.IP.SECURITY.AGREEMENT
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<PAGE>
SECTION 21. CONTINUING SECURITY INTEREST; ASSIGNMENTS UNDER THE CREDIT
AGREEMENT; RELEASE OF COLLATERAL.
(a) This Agreement shall reaffirm a continuing Security
Interest in the Collateral and shall (i) remain in full force and
effect until terminated in accordance with the provisions of Section
21(c), (ii) be binding upon each Grantor, its successors and assigns,
provided, however, no Grantor shall make any assignment hereof without
the prior consent of the Agent, and (iii) inure, together with the
rights and remedies of the Secured Parties hereunder, to the benefit
of the Secured Parties and their respective successors, transferees
and assigns. Without limiting the generality of the foregoing clause
(iii), any Lender may assign to one or more Persons, or grant to one
or more Persons participations in or to, all or any part of its rights
and obligations under the Credit Agreement (to the extent permitted by
the Credit Agreement); and to the extent of any such assignment or
participation such other Person shall, to the fullest extent permitted
by law, thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, subject however,
to the provisions of the Credit Agreement, including Article XIII
thereof concerning the Agent and Article XIV thereof concerning
assignments and participations.
(b) Except as permitted by the Credit Agreement, no Grantor
shall sell, lease, transfer or otherwise dispose of any item of
Collateral during the term of this Agreement without the prior written
consent of the Agent to such sale, lease, transfer or other
disposition.
(c) On the Facility Termination Date, the Collateral shall be
automatically released from the Liens created hereby, all rights to
the Collateral shall automatically revert to the Grantors, and this
Agreement and all obligations of the Grantors hereunder shall
terminate without delivery of any instrument or performance of any act
by any party. Upon such termination of this Agreement, the Agent shall
reassign and redeliver such Collateral then held by or for the Agent
and the Lenders and execute and deliver to each Grantor such documents
as it shall reasonably request to evidence such termination.
SECTION 22. SWAP AGREEMENTS. All Hedging Obligations of any Grantor
shall be deemed to be Secured Obligations secured hereby, and each Lender or
affiliate of a Lender party to any Swap Agreement shall be deemed to be a
Secured Party hereunder.
SECTION 23. SEVERABILITY. If any term or provision of this Agreement
is or shall become illegal, invalid or unenforceable in any jurisdiction, all
other terms and provisions of this Agreement shall remain legal, valid and
enforceable in such jurisdiction and such illegal, invalid or unenforceable
provision shall be legal, valid and enforceable in any other jurisdiction.
SECTION 24. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
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SECTION 25. GOVERNING LAW.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE.
(B) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE
OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE ON
SUCH PARTY BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT
OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY
REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH
PARTY PROVIDED BY SECTION 20, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW
YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY PARTY OR ANY PARTY'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER,
BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN
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CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY WAIVES, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE
THAT EACH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
[SIGNATURE PAGES FOLLOW.]
Name: NB.BOLLE.IP.SECURITY.AGREEMENT
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19
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Second Amended
and Restated Intellectual Property Security Agreement on the day and year first
written above.
GRANTORS:
BOLLE INC.
By: /s/ Desiree DeStefano
Name:
Title:
BOLLE AMERICA, INC.
By: /s/ Desiree DeStefano
Name:
Title:
ORC MANAGEMENT CORPORATION
By: /s/ Desiree DeStefano
Name:
Title:
SECOND AMENDED AND RESTATED
INTELLECTUAL PROPERTY SECURITY AGREEMENT
SIGNATURE PAGE 1 OF 2
<PAGE>
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION, as Agent
for the Secured Parties
By: /s/ Susan Timmerman
Name:
Title:
SECOND AMENDED AND RESTATED
INTELLECTUAL PROPERTY SECURITY AGREEMENT
SIGNATURE PAGE 2 OF 2
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF _________________________ )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ___ day of 1998, personally appeared
______________________________ to me known personally, and who, being by me
duly sworn, deposes and says that he is the of
__________________________________________, and that foregoing instrument was
signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said _______________________________ acknowledged said
instrument to be the free act and deed of said corporation.
Notary Public
My commission expires: *
<PAGE>
SCHEDULE I
PATENTS AND PATENT APPLICATIONS
See Attached.
<PAGE>
SCHEDULE II
TRADEMARKS AND TRADEMARK APPLICATIONS
See Attached.
<PAGE>
SCHEDULE III
COPYRIGHTS
See Attached.
<PAGE>
SCHEDULE IV
LICENSE AGREEMENTS
See Attached.
<PAGE>
(g)
EXHIBIT A
SECOND AMENDED AND RESTATED ASSIGNMENT OF PATENTS,
TRADEMARKS, COPYRIGHTS AND LICENSES
THIS SECOND AMENDED AND RESTATED ASSIGNMENT OF PATENTS, TRADEMARKS,
COPYRIGHTS AND LICENSES (this "Assignment") is made as of this ___ day of
_________, 1998 by and among BOLLE INC., a Delaware corporation (the
"Borrower"), and EACH OF THE UNDERSIGNED (each a "Guarantor" and collectively
with the Borrower, the "Grantors"), to NATIONSBANK, NATIONAL ASSOCIATION, a
national banking association, as Agent (the "Agent") for each of the lenders
(the "Lenders" and collectively with the Agent, the
"Secured Parties") now or hereafter party to the Credit Agreement (as defined
below). All capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned thereto in the Credit Agreement (as defined
below);
W I T N E S S E T H:
WHEREAS, the Lenders, certain other lenders, the Agent and BEC Group,
Inc. ("BEC"), of which the Borrower was formerly a direct subsidiary, are
parties to that certain Amended and Restated Credit Agreement dated as of July
10, 1997 (the "Existing Credit Agreement"); and
WHEREAS, certain of the Guarantors are parties to that certain Amended
and Restated Intellectual Property Security Agreement dated as of July 10, 1997
with the Agent (as amended, supplemented or otherwise modified, the "Existing
IP Security Agreement"); and
WHEREAS, pursuant to that certain Assignment Agreement and First
Amendment to the Amended and Restated Credit Agreement dated as of the date
hereof and effective immediately prior to the effectiveness of this Assignment
between BEC, the Borrower, the Agent and the Lenders (the "Assignment and
Amendment"), BEC assigned to the Borrower, and the Borrower assumed from BEC,
among other liabilities, certain indebtedness owing by and obligations of BEC
under the Existing Credit Agreement such that the Borrower became a co-borrower
together with BEC under the Existing Credit Agreement; and
WHEREAS, each Grantor has entered into that certain Second Amended and
Restated Intellectual Property Security Agreement (the "IP Security Agreement")
dated as of even date herewith pursuant to which each Grantor continues to
grant to the Agent for the benefit of the Lenders a security interest in the
Marks, Copyrights, Licenses and Patents defined below in order to secure its
obligations under the Guaranty Agreement; and
WHEREAS, the Grantors, together with certain other grantors which then
were subsidiaries of the Borrower, are parties to that certain Amended and
Restated Assignment of Patents, Trademarks, Copyrights and Licenses dated as of
July 10, 1997 (as amended, supplemented or otherwise modified as of the date
hereof, the "Existing IP Assignment"); and
<PAGE>
WHEREAS, each Guarantor is a Material Subsidiary of the Borrower and
will materially benefit from the loans and advances made and to be made, and
the letters of credit issued and to be issued, under the Credit Agreement; and
WHEREAS, the Grantors and the Agent desire to amend and restate that
portion of the Existing IP Assignment in its entirety to reflect changes in the
parties required to be parties thereto and certain changes in the Credit
Agreement; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Credit Agreement, the Borrower is willing to grant to the
Agent for the benefit of the Secured Parties a security interest in certain of
its intangible personal property and assets; and
WHEREAS, each Guarantor is a party to that certain Second Amended and
Restated Guaranty Agreement (the "Guaranty") dated as of the date hereof
pursuant to which each Guarantor has guaranteed the obligations of the Borrower
under the Credit Agreement; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Guaranty Agreement, each Guarantor is willing to grant to
the Agent for the benefit of the Secured Parties a security interest in certain
of its intangible personal property and assets; and
WHEREAS, each Grantor (a) has adopted and used and is using or has a
bona fide intention to use the trademarks and service marks (the "Marks")
identified on Annex I hereto, and is the owner of the registrations of and
pending registration applications for such Marks in the United States Patent
and Trademark Office identified on Annex I hereto, (b) is the owner of and uses
the copyrights, copyright registrations and pending registration applications
set forth on Annex II hereto (the "Copyrights"), (c) is a party to and has
rights under the licenses and license agreements listed on Annex III hereto
(the "Licenses") and (d) is the owner of and uses the patents, patent
registrations and pending registration applications set forth on Annex IV
hereto (the "Patents" and together with the Marks, the Copyrights and the
Licenses, the "Collateral"); and
WHEREAS, the Agent for the benefit of the Lenders desires to acquire
the Marks, the Copyrights, the Licenses and the Patents and the registrations
thereof and registration applications therefor, as applicable, in connection
with the exercise of its remedies after the occurrence of an Event of Default
and acceleration of the Obligations under the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, each Grantor does hereby assign, sell and transfer unto
the Agent all right, title and interest in and to the Marks, Copyrights,
Licenses and Patents, together with (i) the registrations of and registration
applications therefor, as applicable, (ii) the goodwill of the business
symbolized by and associated with the Collateral and the registrations thereof,
(iii) the right to sue and recover for, and the right to profits or damages due
or accrued arising out of or in connection with, any and all past, present or
future infringements or dilution of or damage or injury to the Collateral or
the registrations thereof or such associated goodwill, and (iv) all rights of
each Grantor to enforce all Licenses.
<PAGE>
Each Grantor hereby grants to the Agent, for the benefit of the
Lenders, and notice is hereby given that each Grantor has regranted to the
Agent, for the benefit of the Lenders, a first priority security interest in
the Collateral to secure the payment and performance in full of all of the
obligations of each Grantor under the Credit Agreement, the Guaranty and each
other Loan Document to which such Grantor is or becomes a party.
This Assignment is intended to and shall take effect as a sealed
instrument only after the occurrence of an Acceleration Event as defined in the
IP Security Agreement whereafter the Agent shall complete this instrument by
signing its acceptance of this Assignment below.
IN WITNESS WHEREOF, each Grantor, by its duly authorized officer, has
executed this Second Amended and Restated Assignment of Patents, Trademarks,
Copyrights and Licenses, as an instrument under seal, on the day and year first
written above.
GRANTORS:
BOLLE INC.
By: /s/ Desiree DeStefano
Name:
Title:
BOLLE AMERICA, INC.
By: /s/ Desiree DeStefano
Name:
Title:
ORC MANAGEMENT CORPORATION
By: /s/ Desiree DeStefano
Name:
Title:
SECOND AMENDED AND RESTATED ASSIGNMENT
OF PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES
SIGNATURE PAGE 1 OF 2
<PAGE>
The foregoing assignment of the Trademarks, Copyrights and Licenses
and the registrations thereof and registration applications therefor by the
Assignee and the Agent is hereby accepted as of the day and year first written
above.
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Secured Parties
By: /s/ Susan Timmerman
Name:
Title:
SECOND AMENDED AND RESTATED ASSIGNMENT
OF PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES
SIGNATURE PAGE 2 OF 2
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF _________________________ )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this___ day of 1998, personally appeared
________________________________________ to me known personally, and who, being
by me duly sworn, deposes and says that he is the of
__________________________________________, and that the foregoing instrument
was signed and sealed on behalf of said corporation by authority of its Board
of Directors, and said _______________________________ acknowledged said
instrument to be the free act and deed of said corporation.
Notary Public
My commission expires:
<PAGE>
ANNEX I
REGISTRATIONS
UNITED STATES PATENT AND
TRADEMARK OR TRADEMARK OFFICE
SERVICE MARK REGISTRATION NO. REGISTRATION DATE
PENDING APPLICATIONS
UNITED STATES PATENT AND
TRADEMARK OR TRADEMARK OFFICE
SERVICE MARK REGISTRATION NO. REGISTRATION DATE
<PAGE>
TRADEMARKS AND TRADEMARK APPLICATIONS
<PAGE>
ANNEX II
PART I
COPYRIGHTS REGISTERED WITH U.S. COPYRIGHT OFFICE
COPYRIGHTTITLE AUTHOR(S) COPYRIGHT NUMBER REGISTRATION DATE
PART II
COPYRIGHTS NOT REGISTERED
COPYRIGHTTITLE AUTHOR(S)
.
<PAGE>
ANNEX III
LICENSES
See attached.
<PAGE>
ANNEX IV
REGISTRATIONS
UNITED STATES PATENT AND
TRADEMARK OFFICE
PATENT REGISTRATION NO. REGISTRATION DATE
PENDING APPLICATIONS
UNITED STATES PATENT AND
TRADEMARK OFFICE
PATENT REGISTRATION NO. REGISTRATION DATE
<PAGE>
SECOND AMENDED AND RESTATED ASSIGNMENT OF PATENTS,
TRADEMARKS, COPYRIGHTS AND LICENSES
THIS SECOND AMENDED AND RESTATED ASSIGNMENT OF PATENTS, TRADEMARKS,
COPYRIGHTS AND LICENSES (this "Assignment") is made as of this 11th day of
March, 1998 by and among BOLLE INC., a Delaware corporation (the "Borrower"),
and EACH OF THE UNDERSIGNED (each a "Guarantor" and collectively with the
Borrower, the "Grantors"), to NATIONSBANK, NATIONAL ASSOCIATION, a national
banking association, as Agent (the "Agent") for each of the lenders (the
"Lenders" and collectively with the Agent, the "Secured Parties") now or
hereafter party to the Credit Agreement (as defined below). All capitalized
terms used but not otherwise defined herein shall have the respective meanings
assigned thereto in the Credit Agreement (as defined below);
W I T N E S S E T H:
WHEREAS, the Lenders, the Agent and BEC Group, Inc. ("BEC"), of which
the Borrower was formerly a direct subsidiary are parties to that certain
Amended and Restated Credit Agreement dated as of July 10, 1997 (the "Existing
Credit Agreement"); and
WHEREAS, pursuant to that certain Assignment Agreement and First
Amendment to the Amended and Restated Credit Agreement, dated as of the date
hereof and effective immediately prior to the effectiveness of this Assignment,
between BEC, the Borrower, the Agent and the Lenders (the "Assignment and
Amendment"), BEC assigned to the Borrower, and the Borrower assumed from BEC,
among other liabilities, certain indebtedness owing by and obligations of BEC
under the Existing Credit Agreement such that the Borrower became a co-borrower
together with BEC under the Existing Credit Agreement; and
WHEREAS, certain of the Guarantors are parties to that certain Amended
and Restated Intellectual Property Security Agreement dated as of July 10, 1997
with the Agent (as amended, supplemented or otherwise modified, the "Existing
IP Security Agreement"); and
WHEREAS, each Grantor are parties to that certain Second Amended and
Restated Intellectual Property Security Agreement (the "IP Security Agreement")
dated as of even date herewith pursuant to which each Grantor continues to
grant to the Agent for the benefit of the Lenders a security interest in the
Marks, Copyrights, Licenses and Patents defined below in order to secure its
obligations under the Guaranty Agreement; and
WHEREAS, the Grantors, together with certain other grantors which then
were subsidiaries of the Borrower, are parties to that certain Amended and
Restated Assignment of Patents, Trademarks, Copyrights and Licenses dated as of
July 10, 1997 (as amended, supplemented or otherwise modified as of the date
hereof, the "Existing IP Assignment"); and
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<PAGE>
WHEREAS, each Guarantor is a party to that certain Amended and
Restated Guaranty Agreement (the "Guaranty") dated as of the date hereof
pursuant to which each Guarantor has guaranteed the obligations of the Borrower
under the Credit Agreement; and
WHEREAS, the Grantors, the Agent and the Lenders desire to amend and
restate the Existing IP Assignment in its entirety to reflect changes in the
parties required to be parties thereto and certain changes in the Credit
Agreement; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Credit Agreement, the Borrower is willing to grant to the
Agent for the benefit of the Secured Parties a security interest in certain of
its intangible personal property and assets; and
WHEREAS, each Guarantor is a Material Subsidiary of the Borrower and
will materially benefit from the loans and advances made and to be made, and
the letters of credit issued and to be issued, under the Credit Agreement; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Guaranty Agreement, each Guarantor is willing to grant to
the Agent for the benefit of the Secured Parties a security interest in certain
of its intangible personal property and assets; and
WHEREAS, each Grantor (a) has adopted and used and is using or has a
bona fide intention to use the trademarks and service marks (the "Marks")
identified on Annex I hereto, and is the owner of the registrations of and
pending registration applications for such Marks in the United States Patent
and Trademark Office identified on Annex I hereto, (b) is the owner of and uses
the copyrights, copyright registrations and pending registration applications
set forth on Annex II hereto (the "Copyrights"), (c) is a party to and has
rights under the licenses and license agreements listed on Annex III hereto
(the "Licenses") and (d) is the owner of and uses the patents, patent
registrations and pending registration applications set forth on Annex IV
hereto (the "Patents" and together with the Marks, the Copyrights and the
Licenses, the "Collateral"); and
WHEREAS, the Agent for the benefit of the Lenders desires to acquire
the Marks, the Copyrights, the Licenses and the Patents and the registrations
thereof and registration applications therefor, as applicable, in connection
with the exercise of its remedies after the occurrence of an Event of Default
and acceleration of the Obligations under the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, each Grantor does hereby assign, sell and transfer unto
the Agent all right, title and interest in and to the Marks, Copyrights,
Licenses and Patents, together with (i) the registrations of and registration
applications therefor, as applicable, (ii) the goodwill of the business
symbolized by and associated with the Collateral and the registrations thereof,
(iii) the
Name: NB.BOLLE.ASSIGNMENT.PATENT.TRADEMARKS.LICENSES
Doc No: 190341 (FINAL)
2
<PAGE>
right to sue and recover for, and the right to profits or damages due or
accrued arising out of or in connection with, any and all past, present or
future infringements or dilution of or damage or injury to the Collateral or
the registrations thereof or such associated goodwill, and (iv) all rights of
each Grantor to enforce all Licenses.
Each Grantor hereby grants to the Agent, for the benefit of the
Lenders, and notice is hereby given that each Grantor has regranted to the
Agent, for the benefit of the Lenders, a first priority security interest in
the Collateral to secure the payment and performance in full of all of the
obligations of each Grantor under the Credit Agreement, the Guaranty and each
other Loan Document to which such Grantor is or becomes a party.
This Assignment is intended to and shall take effect as a sealed
instrument only after the occurrence of an Acceleration Event as defined in the
IP Security Agreement whereafter the Agent shall complete this instrument by
signing its acceptance of this Assignment below.
[SIGNATURE PAGES FOLLOW.]
Name: NB.BOLLE.ASSIGNMENT.PATENT.TRADEMARKS.LICENSES
Doc No: 190341 (FINAL)
3
<PAGE>
IN WITNESS WHEREOF, each Grantor, by its duly authorized officer, has
executed this assignment, as an instrument under seal, on the day and year
first written above.
GRANTORS:
BOLLE INC.
By: /s/ Desiree DeStefano
Name:
Title:
BOLLE AMERICA, INC.
By: /s/ Desiree DeStefano
Name:
Title:
ORC MANAGEMENT CORPORATION
By: /s/ Desiree DeStefano
Name:
Title:
ASSIGNMENT OF TRADEMARKS, COPYRIGHTS AND LICENSES
Signature Page 1 of 2
<PAGE>
The foregoing assignment of the Trademarks, Copyrights and Licenses
and the registrations thereof and registration applications therefor by the
Assignee and the Agent is hereby accepted as of the day and year first written
above.
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Secured Parties
By: /s/ Susan Timmerman
Name:
Title:
ASSIGNMENT OF TRADEMARKS, COPYRIGHTS AND LICENSES
Signature Page 2 of 2
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF _________________________ )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this___ day of 1998, personally appeared
______________________________________________________ to me known personally,
and who, being by me duly sworn, deposes and says that he is the of
__________________________________________, and that the foregoing instrument
was signed and sealed on behalf of said corporation by authority of its Board
of Directors, and said _______________________________ acknowledged said
instrument to be the free act and deed of said corporation.
Notary Public
My commission expires:
<PAGE>
<TABLE>
<S><C>
ANNEX I
REGISTRATIONS
UNITED STATES PATENT AND
TRADEMARK OR TRADEMARK OFFICE
SERVICE MARK REGISTRATION NO. REGISTRATION DATE
See attached.
PENDING APPLICATIONS
UNITED STATES PATENT AND
TRADEMARK OR TRADEMARK OFFICE
SERVICE MARK REGISTRATION NO. REGISTRATION DATE
See attached.
<PAGE>
TRADEMARKS AND TRADEMARK APPLICATIONS
TRADEMARK TITLE SERIAL NUMBER
=========== =============================================================== =========================================
. Proforma Pending
. Tactical 1,837,768
. Tiger Snake 1,869,358
. Avant Edge 1,699,667
. Maurice Bolle 1,480,563
. Put 'em On Your Face (clothing) 1,504,060
. Chronoshield 1,501,116
. bf 1,512,392
. Bolle (eyewear) 1,093,117
. Bolle (clothing) 1,323,357
. Carbo Gas 910,144
. Geometric 1,779,399
. bolle PC 1,491,987
. Eyezone Design 1,968,477
. Aquashield 1,664,574
. Acrylex 1,504,694
. bolle (bags) 1,867,002
. Put em on your face (eyewear) 1,485,106
. Eaglevision and design (clothing) 1,895,179
. Bolle Eyezone 1,889,723
. Northern Lights 1,935,810
. Sunspender 1,879,628
. Snake (design) 1,883,401
. Horizon 1,608,948
<PAGE>
TRADEMARK TITLE SERIAL NUMBER
=========== =============================================================== =========================================
. Eaglevision (word only) 1,998,951
. Eaglevision and design (eyewear) 2,053,027
. Contour 1,545,222
. Vermillion 1,561,863
. Microedge (stylized) 1,633,050
. Alien 1,709,393
. American Blues Pending
. B (Capital B design with triangle) Pending
. Bolle Carbonex Pending
. Bolle Attack (and design) Pending
. Bolle Escape (and design) Pending
. Breakaway Pending
. Madness Pending
. See Better, Play Better Pending
. Sliver Pending
. TIGER Pending
. True Rebels Pending
. Vapor Trail Pending
.
- ----------- --------------------------------------------------------------- -----------------------------------------
<PAGE>
ANNEX II
PART I
COPYRIGHTS REGISTERED WITH U.S. COPYRIGHT OFFICE
COPYRIGHTTITLE AUTHOR(S) COPYRIGHT NUMBER REGISTRATION DATE
None.
PART II
COPYRIGHTS NOT REGISTERED
COPYRIGHTTITLE AUTHOR(S)
None.
<PAGE>
ANNEX III
LICENSES
[1. REFERENCE IS MADE TO THE DISCLOSURE SCHEDULES TO THE SHARE PURCHASE AGREEMENT.
2. LICENSE AGREEMENT DATED OCTOBER 13, 1994 BETWEEN MENTOR CORPORATION AND BEC
GROUP, INC. AS AMENDED BY THE ASSIGNMENT AND ASSUMPTION AGREEMENT DATED
OCTOBER 31, 1996, BETWEEN BEC GROUP, INC. AND BEC DISTRIBUTION.]
<PAGE>
ANNEX IV
REGISTRATIONS
UNITED STATES PATENT AND
TRADEMARK OFFICE
PATENT REGISTRATION NO. REGISTRATION DATE
None.
PENDING APPLICATIONS
UNITED STATES PATENT AND
TRADEMARK OFFICE
PATENT REGISTRATION NO. REGISTRATION DATE
None.
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 1,204
<SECURITIES> 0
<RECEIVABLES> 12,462
<ALLOWANCES> 0
<INVENTORY> 11,734
<CURRENT-ASSETS> 1,617
<PP&E> 4,687
<DEPRECIATION> 0
<TOTAL-ASSETS> 94,697
<CURRENT-LIABILITIES> 47,943
<BONDS> 0
11,055
0
<COMMON> 0
<OTHER-SE> 18,843
<TOTAL-LIABILITY-AND-EQUITY> 94,697
<SALES> 32,160
<TOTAL-REVENUES> 32,160
<CGS> 15,354
<TOTAL-COSTS> 15,354
<OTHER-EXPENSES> 19,399
<LOSS-PROVISION> 1,099
<INTEREST-EXPENSE> 963
<INCOME-PRETAX> (3,556)
<INCOME-TAX> 1,099
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,655)
<EPS-PRIMARY> 0.00
<EPS-DILUTED> (2,586.11)
</TABLE>
