EXHIBIT 10.6
SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of January 13, 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 Section 1.1. (i) The following defined terms are
hereby inserted in appropriate alphabetical order:
"Cleveland Golf": Roger Cleveland Golf Company, Inc.
"Rossignol Entities": collectively, Skis Dynastar Canada Ltd., Skis
Dynastar, Inc., Skis Rossignol Canada Ltee/Ltd. and Rossignol Ski Company,
Incorporated.
"Rossignol Ski Rental Accounts": collectively, the Accounts which are
owing by an Account Debtor participating in the Ski Rental Business.
"Ski Rental Business": the ski rental operations of Rossignol.
"WIP, Raw Material and Subassembly Eligible Inventory": as defined in
clause (f) of the definition of "Eligible Inventory".
(ii) The definition of "Canadian Borrowing Base" is hereby amended by
deleting the phrase "85% of the Net Orderly Liquidation Value" set forth in
clauses (b), (c), (d) and (e) thereof and substituting in lieu thereof the
phrase "90% of the Net Orderly Liquidation Value".
(iii) The definition of "Eligible Accounts" is hereby amended by
deleting the existing clause (c) and inserting in lieu thereof a new clause (c)
to read:
"(c) with respect to which more than 90 days have elapsed since the
date of the original invoice therefor or which is more than 60 days past
the due date for payment; provided, that this clause (c) shall not, in and
of itself, render ineligible (i) Accounts in an aggregate amount not in
excess of US$75,000,000 with respect to which more than 90 days but less
than 120 days have elapsed since the date of the original invoice so long
as no more than 60 days have elapsed since the due date for payment, (ii)
Accounts in an aggregate amount not in excess of US$15,000,000 with respect
to which more than 120 days but less than 210 days have elapsed since the
date of the original invoice so long as no more than 30 days have elapsed
since the due date for payment, (iii) Accounts of Rossignol Entities and
Cleveland Golf with respect to which more than 90 days but less than 240
days have elapsed since the date of the original invoice so long as no more
than 30 days have elapsed since the due date for payment, and (iv)
Rossignol Ski Rental Accounts in an aggregate amount not in excess of
$15,000,000 which will become due and payable within 365 days after the
relevant date of calculation of the US Borrowing Base or Canadian Borrowing
Base so long as no time has elapsed since the due date for payment for such
Rossignol Ski Rental Accounts."
(iv) The definition of "Eligible Inventory" is hereby further amended
by inserting the following proviso at the end of clause (f) thereof:
"provided, that, for the avoidance of doubt and notwithstanding
anything to the contrary contained in this definition, work-in-progress,
raw materials and subassemblies of Cleveland Golf which are otherwise
eligible for inclusion as Eligible Inventory (such Inventory, the "WIP, Raw
Material and Subassembly Eligible Inventory") shall constitute Eligible
Inventory subject to a 50% advance rate as contemplated by clause (c) of
the definition of "US Borrowing Base";"
(v) The definition of "Eligible Inventory" is hereby further amended
by deleting the dollar amount of "US$10,000,000" set forth in clause (h) thereof
and substituting in lieu thereof the dollar amount "US$15,000,000".
(vi) The definition of "Pricing Grid" is hereby amended by deleting
the table therein and replacing in lieu thereof the following:
Applicable Margin
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LIBOR Loans and ABR Loans, Canadian ABR Loans Commitment Fee Letter of
Fixed Charge Coverage Ratio Acceptance Fee and Canadian Prime Rate Loans Rate Credit Rate
- -------------------------------------- --------------- ----------------------------- -------------- -----------
< or = 1.25 to 1.00 1.875% 0.375% 0.40% 0.875%
> 1.25 to 1.00 but < or = 1.50 to 1.00 1.625% 0.125% 0.35% 0.75%
> 1.50 to 1.00 but < or = 1.75 to 1.00 1.375% 0% 0.30% 0.50%
> 1.75 to 1.00 but < or = 2.00 to 1.00 1.125% 0% 0.25% 0.40%
> 2.00 to 1.00 0.875% 0% 0.20% 0.40%
(vii) The definition of "Target Seasonal Period" is hereby amended and
restated in its entirety to read as follows:
"Target Seasonal Period": (a) as to any Canadian Target Loan Party and
any US Target Loan Party (other than Cleveland Golf and its Subsidiaries,
if any), the period commencing on July 1 and ending on November 30 of each
calendar year and (b) as to Cleveland Golf and its Subsidiaries, if any,
the period commencing on February 1 and ending on May 31 of each calendar
year.
(viii) The definition of "US Borrowing Base" is hereby amended by
deleting the phrase "85% of the Net Orderly Liquidation Value" set forth in
clauses (b), (c), (d) and (e) thereof and substituting in lieu thereof the
phrase "90% of the Net Orderly Liquidation Value".
(ix) The definition of "US Borrowing Base" is hereby further amended
by deleting clause (c) thereof in its entirety and substituting in lieu thereof
the following:
"(c) with respect to all Eligible Inventory of the US Target Loan
Parties, other than WIP, Raw Material and Subassembly Inventory, the lesser
of (i) 70% of Eligible Inventory of the US Target Loan Parties, valued at
the lower of cost or market value, determined on a first-in-first-out
basis, at such time and (ii) 90% of the Net Orderly Liquidation Value of
Eligible Inventory of the US Target Loan Parties at such time (provided,
that with respect to WIP, Raw Material and Subassembly Inventory of the US
Target Loan Parties, the US Borrowing Base shall include 50% of WIP, Raw
Material and Subassembly Inventory, valued at the lower of cost or market
value, determined on a first-in-first-out basis, at such time), plus"
(x) The definition of "US Guarantors" is hereby amended and restated
in its entirety to read as follows:
"US Guarantors": each of Quiksilver, each Material Domestic Subsidiary
(other than the US Borrower), each Additional Domestic Guarantor and each
Domestic Subsidiary that guarantees the Borrower's Obligations.
III. Amendments to Sections 5.8, 6.2(k), 6.2(l), 6.6(b)(ii), 6.7(d)
and 6.13. Sections 5.8, 6.2(k), 6.2(l), 6.6(b)(ii), 6.7(d) and 6.13 are hereby
amended by deleting the phrase "US$40,000,000" set forth therein and
substituting in lien thereof the phrase "the greater of US$31,250,000 and 12.5%
of the sum of the Aggregate US Revolving Loan Commitment plus the Aggregate
Canadian Revolving Loan Commitment".
IV. Effective Date. This Amendment shall become effective on the date
(the "Effective Date") on which (x) the Borrowers and each of the 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.
V. 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.
VI. 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.
VII. 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.
VIII. 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.
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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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
By:
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Name:
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Title:
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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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Amendment Signature Page