EXHIBIT 10.31
FOURTH AMENDMENT
FOURTH AMENDMENT (this "Amendment"), dated as of December __, 2006, to the
Amended and Restated Credit Agreement dated as of June 3, 2005 (the "Credit
Agreement"), among Quiksilver, Inc., a Delaware corporation, Quiksilver
Americas, Inc., a California corporation, the several banks and other
institutions from time to time parties thereto (the "Lenders"), Bank of America,
N.A., as documentation agent, Union Bank of California, N.A., as syndication
agent, JPMorgan Chase Bank, N.A., as US administrative agent for the US Lenders
thereunder (in such capacity, the "US Administrative Agent"), JPMorgan Chase
Bank, N.A., London Branch, as an alternate currency fronting lender, J.P. Morgan
Europe Limited, as alternate currency fronting agent (in such capacity, the
"Alternate Currency Fronting Agent"), and JPMorgan Chase Bank, N.A., Toronto
Branch, as Canadian administrative agent for the Canadian Lenders (in such
capacity, the "Canadian Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, certain loans and other extensions of credit to the Borrowers;
WHEREAS, the Borrowers have requested that certain provisions of the Credit
Agreement be amended as set forth herein; and
WHEREAS, the Lenders are willing to agree to such amendment on the terms
set forth herein;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the undersigned hereby agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
II. Amendments to Article I.
(a) The definition of "Availability Event" is hereby amended and restated
in its entirety to read as follows:
"Availability Event": the occurrence of any date if, on such date
the average sum of the daily Suppressed Availability and the
daily Availability was less than US$25,000,000 for the preceding
30-day period."
(b) The following definition is inserted in appropriate alphabetical
order:
"Suppressed Availability": at any time, the lesser of (a) the
difference between (i) the sum of the US Borrowing Base and the
Canadian Borrowing Base and (ii) the sum of the Aggregate US
Revolving Loan Commitment and the Aggregate
Canadian Revolving Loan Commitment (provided, that such
difference is not less than zero for purposes of this
calculation) and (b) US$10,000,000."
III. Amendments to Article II.
(a) Section 2.1(a) is hereby amended by deleting the phrase
"US$100,000,000" set forth therein and substituting in lieu thereof
the phrase "US$125,000,000".
(b) Section 2.5(a) is hereby amended by deleting the second parenthetical
set forth therein.
(c) Section 2.5(b) is hereby amended by deleting the phrase
"US$100,000,000" set forth therein and substituting in lieu thereof
the phrase "US$125,000,0000".
IV. Amendments to Article V.
(a) Section 5.2 is hereby amended by inserting after the phrase
"Availability Event" the following parenthetical "(provided, that such
Availability Event shall be deemed to be continuing until the average
sum of the daily Suppressed Availability and the daily Availability is
greater than or equal to US$30,000,000 for any 90-day period
thereafter (calculated as of any date during such period to reflect
the average sum of Availability and Suppressed Availability for the
preceding 30 days))".
(b) Section 5.8 is hereby amended by deleting the first parenthetical set
forth therein and substituting in lieu thereof the phrase "(not more
frequently than once per calendar year or, following the occurrence
and during the continuance of an Availability Event at any time during
a calendar year, twice per calendar year)".
(c) Section 5.10 is hereby amended by inserting after the phrase
"Availability Event" the following parenthetical "(provided, that such
Availability Event shall be deemed to be continuing until the average
sum of the daily Suppressed Availability and the daily Availability is
greater than or equal to US$30,000,000 for any 90-day period
thereafter (calculated as of any date during such period to reflect
the average sum of Availability and Suppressed Availability for the
preceding 30 days))".
V. Amendments to Article VI.
(a) Section 6.1 is hereby amended and restated in its entirety to read as
follows:
"SECTION 6.1. Financial Condition Covenants. Following the
occurrence and during the continuance of an Availability Event,
Quiksilver will not permit the Fixed Charge Coverage Ratio,
calculated as of the most recent financial statements of
Quiksilver delivered in accordance with Section 5.1, to be less
than 1.1 to 1.0; provided, that such Availability Event shall be
deemed to be continuing until the average sum of the daily
Suppressed Availability and the daily Availability is greater
than or equal to US$30,000,000 for any 90-day period thereafter
(calculated as of any date during such period to reflect the
average sum of Availability and Suppressed Availability for the
preceding 30 days)."
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(b) Section 6.2(k) is hereby amended by deleting clause (ii) in its
entirety and substituting in lieu thereof a new clause (ii) to read as
follows:
"(ii) after giving pro forma effect thereto, the average sum of
the daily Suppressed Availability and the daily Availability was
not less than $25,000,000 for any period of 30 consecutive days
during the 6-month period ending on the date on which such
incurrence is to occur".
(c) Section 6.2(l) is hereby amended by deleting the proviso set forth
therein in its entirety and substituting in lieu thereof a new proviso
to read as follows:
"provided, that no such Indebtedness of any Subsidiary (other
than any Loan Party) to any Loan Party shall be permitted to be
incurred to the extent that (x) after giving pro forma effect
thereto, the average sum of the daily Suppressed Availability and
the daily Availability was less than $25,000,000 for any period
of 30 consecutive days at any time during the 3-month period
ending on the date on which such incurrence is to occur and (y) a
Default or an Event of Default has occurred and is continuing or
would be cause thereby; and"
(d) Section 6.2(m) is hereby amended by deleting the phrase
"US$35,000,000" set forth therein and substituting in lieu thereof the
phrase "US$65,000,000".
(e) Section 6.6 is hereby amended by deleting the first clause (x) set
forth therein in is entirety and substituting in lieu thereof a new
clause (x) to read as follows:
"(x) after giving pro forma effect thereto the average sum of the
daily Suppressed Availability and the daily Availability was not
less than $25,000,000 for any period of 30 consecutive days
during the 6-month period ending on the date on which such
Restricted Payment is to be made,"
(f) Section 6.7(d) is hereby amended by (x) deleting the phrase
"US$10,000,000" set forth therein and substituting in lieu thereof the
phrase "US$25,000,000", (y) deleting the phrase ", and US$50,000,000
in the aggregate, during the term of this Agreement" set forth therein
in its entirety and (z) deleting the first parenthetical set forth
therein and substituting in lieu thereof the phrase "(provided, that
no restriction on the cash Consideration for Permitted Acquisitions
shall be applicable if, after giving pro forma effect thereto, the
average sum of the daily Suppressed Availability and the daily
Availability was not less than $25,000,000 for any period of 30
consecutive days during the 3-month period ending on the date on which
such Permitted Acquisition is to be consummated)".
(g) Section 6.7(i) is hereby amended and restated in its entirety to read
as follows:
"(i) investments in an aggregate amount not to exceed
US$27,000,000 by Quiksilver, the US Borrower or QS Holdings
S.a.r.l. in Quiksilver Mexico JV pursuant to a joint venture
agreement dated as of September 26, 2005, Quiksilver Brazil JV
pursuant to a joint venture agreement dated as of November 1,
2004 or a Subsidiary or joint venture in Russia pursuant to a
joint venture agreement."
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(h) Section 6.13 is hereby amended by deleting clause (a) in its entirety
and substituting in lieu thereof a new clause (a) to read as follow:
"(a) after giving pro forma effect thereto, the average sum of
the daily Suppressed Availability and the daily Availability was
not less than $25,000,000 for any period of 30 consecutive days
during the 6-month period ending on the date on which such
prepayment or redemption is to be made"
VI. Effective Date. This Amendment shall become effective on the date (the
"Effective Date") on which (x) the Borrowers and the Required Lenders under the
Credit Agreement shall have duly executed and delivered to the US Administrative
Agent this Amendment and (y) the US Borrower has paid and reimbursed the
Administrative Agents for all of their out-of-pocket costs and reasonable
expenses incurred to date in connection with this Amendment and the other Loan
Documents, including, without limitation, the reasonable fees and disbursements
of legal counsel to the Administrative Agents.
VII. Representations and Warranties. The Borrowers hereby represent and
warrants that (a) each of the representations and warranties in Article III of
the Credit Agreement shall be, after giving effect to this Amendment, true and
correct in all material respects as if made on and as of the Effective Date
(unless such representations and warranties are stated to relate to a specific
earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date) and (b) after
giving effect to this Amendment, no Default or Event of Default shall have
occurred and be continuing.
VIII. No Other Amendments; Confirmation. Except as expressly amended
hereby, the provisions of the Credit Agreement, as amended and restated, are and
shall remain in full force and effect.
IX. Governing Law. This Amendment and the rights and obligations of the
parties hereto shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
X. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
[signature pages follow]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above written.
QUIKSILVER, INC.
By:
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Name:
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Title:
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QUIKSILVER AMERICAS, INC.
By:
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Name:
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Title:
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Amendment Signature Page
JPMORGAN CHASE BANK, N.A., as US
Administrative Agent and as a Lender
By:
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Name:
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Title:
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Amendment Signature Page
BANK OF AMERICA, N.A., as Documentation
Agent and as a Lender
By:
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Name:
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Title:
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Amendment Signature Page
UNION BANK OF CALIFORNIA, N.A., as
Syndication Agent and as a Lender
By:
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Name:
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Title:
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Amendment Signature Page
ALLIED IRISH BANK
By:
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Name:
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Title:
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Amendment Signature Page
GENERAL ELECTRIC CAPITAL CORP.
By:
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Name:
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Title:
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Amendment Signature Page
HSBC
By:
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Name:
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Title:
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Amendment Signature Page
ISRAEL DISCOUNT BANK NEW YORK
By:
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Name:
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Title:
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Amendment Signature Page
CALYON
By:
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Name:
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Title:
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Amendment Signature Page
NATEXIS
By:
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Name:
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Title:
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Amendment Signature Page
BNP-PARIBAS
By:
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Name:
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Title:
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Amendment Signature Page
SOCIETE GENERALE
By:
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Name:
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Title:
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Amendment Signature Page
The US Guarantors hereby consent and agree to this Amendment as of the date
hereof and reaffirm their obligations under the US Security Agreement, the US
Guarantee and the other Loan Documents to which they are party.
QS RETAIL, INC.
By:
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Name:
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Title:
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QS WHOLESALE, INC.
By:
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Name:
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Title:
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DC SHOES, INC.
By:
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Name:
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Title:
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HAWK DESIGNS, INC.
By:
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Name:
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Title:
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MERVIN MANUFACTURING, INC.
By:
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Name:
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Title:
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FIDRA, INC.
By:
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Name:
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Title:
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ROSSIGNOL SKI COMPANY INCORPORATED
By:
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Name:
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Title:
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Amendment Signature Page
SKIS DYNASTAR, INC.
By:
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Name:
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Title:
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ROGER CLEVELAND GOLF COMPANY, INC.
By:
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Name:
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Title:
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Amendment Signature Page