SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
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THIS SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made and entered into this 26th day of October, 2004, by and between
NATIONAL VISION, INC., a Georgia corporation (hereinafter referred to as
"Borrower") with its chief executive office and principal place of business at
000 Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, Xxxxxxx 00000-0000, and FLEET RETAIL GROUP,
INC., a Delaware corporation (hereinafter referred to as "Lender") with an
office at 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
RECITALS:
Lender and Borrower are parties to a certain Loan and Security Agreement
dated May 30, 2001, as amended by that certain First Amendment to Loan and
Security Agreement dated as of December 21, 2001, but effective as of June 30,
2001, that certain letter agreement dated as of December 28, 2002, that certain
Second Amendment to Loan and Security Agreement dated December 19, 2003, that
certain Fourth Amendment to Loan and Security Agreement dated April 1, 2004
("Fourth Amendment") and that certain letter agreement dated June 4, 2004 (as
amended, the "Loan Agreement"), pursuant to which Lender has made certain
revolving credit loans and other financial accommodations to Borrower.
The parties desire to amend the Loan Agreement as hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is hereby amended as
follows:
(a) By deleting the reference to "$250,000" in Section 7.4.2 of the Loan
Agreement and by substituting in lieu thereof a reference to "$500,000."
(b) By deleting Section 9.2.9 of the Loan Agreement and by substituting
in lieu thereof the following:
9.2.9 CAPITAL EXPENDITURES. Make Capital Expenditures (including
expenditures by way of capitalized leases) which, in the
aggregate, as to Borrower and its Subsidiaries, exceed
$3,500,000 during the period from the date of this Agreement
through December 29, 2001 or exceed $5,500,000 during any Fiscal
Year after December 29, 2001; PROVIDED, HOWEVER, that such
Capital Expenditures shall not exceed $6,250,000 in the
aggregate during the 2005 Fiscal Year.
3. NOTE PURCHASES. Lender and Borrower hereby agree that, during the
period commencing on the date hereof and ending on January 1, 2005 (the
"Purchase Period"), Borrower may purchase New Senior Notes with Borrower's cash
on hand, but not with proceeds of any Revolver Loans; PROVIDED, HOWEVER, that at
all times during the period commencing on the date hereof and ending on February
28, 2005, both with and without giving effect to such purchases, Borrower shall
have cash on hand in an amount not less than $3,000,000. All of the purchases of
New Senior Notes described hereinabove shall comply with Section 9.2.22(iii) of
the Loan Agreement except that any amounts expended to purchase New Senior Notes
during the Purchase Period shall not be included in the calculation of the
Consolidated Fixed Charge Coverage Ratio for the purposes of Section 9.2.22(iii)
and Borrower shall not be required to submit the certificates described in
Section 9.2.22(iii) prior to such purchases. After expiration of the Purchase
Period, any amounts expended to purchase New Senior Notes during the Purchase
Period shall be included in the calculation of the Consolidated Fixed Charge
Coverage Ratio for the purpose of satisfying the conditions of Section
9.2.22(iii) of the Loan Agreement. Any amounts expended to purchase New Senior
Notes during the Purchase Period shall not be included in the calculation of the
Consolidated Fixed Charge Coverage Ratio under Section 9.3.2 of the Loan
Agreement.
4. LOAN REQUESTS. Notwithstanding anything to the contrary contained in
the Loan Agreement, during the period commencing on the date hereof and ending
on February 28, 2005, the Lender shall not have any obligation to, but may at
its sole discretion, make any Revolver Loans or procure any Letter of Credit
whatsoever under the Loan Agreement; PROVIDED, HOWEVER, that (i) Lender may
continue to honor any deemed request for a Revolver Loan under Section 3.1 of
the Loan Agreement for the becoming due of any Obligations (including, without
limitation, interest and fees) that are not otherwise timely paid by Borrower
and (ii) the fees payable by Borrower under Section 2.2 of the Loan Agreement
shall continue to be calculated and payable as set forth in the Loan Agreement.
5. CONSENTS. Lender hereby consents to (i) an additional investment by
Borrower in its Subsidiary, Independent Living Company, LLC, a Georgia limited
liability company, of not more than $500,000, for a total of $1,000,000;
PROVIDED, that (a) the amount of such investment, when combined with the
aggregate amount of all other investments made by Borrower in its Subsidiaries
since the Closing Date and the aggregate outstanding amount of all loans or
advances of money made by Borrower to its Subsidiaries, do not at any time
exceed the total amount, less reimbursements to Borrower, of $1,000,000, and (b)
no Default or Event of Default exists at the time of, or immediately after, the
making of such investment; PROVIDED FURTHER that if such investment shall take
the form of a loan, such investment shall be subject to the terms of Section
9.2.2(iii) of the Loan Agreement; and (ii) Borrower's formation of a Subsidiary
named XX XX Network, LLC, a Georgia limited liability company.
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6. RATIFICATION AND REAFFIRMATION. Borrower hereby ratifies and
reaffirms the Obligations, each of the Loan Documents, and all of Borrower's
covenants, duties, indebtedness and liabilities under the Loan Documents.
7. ACKNOWLEDGMENTS AND STIPULATIONS. Borrower acknowledges and
stipulates that the Loan Agreement and the other Loan Documents executed by
Borrower are legal, valid and binding obligations of Borrower that are
enforceable against Borrower in accordance with the terms thereof; all of the
Obligations are owing and payable without defense, offset or counterclaim (and
to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by Borrower); the security interests and liens
granted by Borrower in favor of Lender are duly perfected, first priority
security interests and liens.
8. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Lender, to induce Lender to enter into this Amendment, that no Default or Event
of Default exists on the date hereof; the execution, delivery and performance of
this Amendment have been duly authorized by all requisite corporate action on
the part of Borrower and this Amendment has been duly executed and delivered by
Borrower; and all of the representations and warranties made by Borrower in the
Loan Agreement are true and correct on and as of the date hereof.
9. REFERENCE TO LOAN AGREEMENT. Upon the effectiveness of this
Amendment, each reference in the Loan Agreement to "this Agreement,"
"hereunder," or words of like import shall mean and be a reference to the Loan
Agreement, as amended by this Amendment.
10. BREACH OF AMENDMENT. This Amendment shall be part of the Loan
Agreement and a breach of any representation, warranty or covenant herein shall
constitute an Event of Default.
12. AMENDMENT FEE; EXPENSES OF LENDER. In consideration of Lender's
willingness to enter into this Amendment, Borrower agrees to pay to Lender an
amendment fee in the amount of $15,000 in immediately available funds on the
date hereof. Additionally, Borrower agrees to pay, ON DEMAND, all costs and
expenses incurred by Lender in connection with the preparation, negotiation and
execution of this Amendment and any other Loan Documents executed pursuant
hereto and any and all amendments, modifications, and supplements thereto,
including, without limitation, the costs and fees of Lender's legal counsel and
any taxes or expenses associated with or incurred in connection with any
instrument or agreement referred to herein or contemplated hereby.
13. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Georgia.
14. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
15. NO NOVATION, ETC.. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Loan
Agreement as herein modified shall continue in full force and effect.
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16. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be executed
in any number of counterparts and by different parties to this Amendment on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile transmission shall be deemed to
be an original signature hereto.
17. FURTHER ASSURANCES. Borrower agrees to take such further actions as
Lender shall reasonably request from time to time in connection herewith to
evidence or give effect to the amendments set forth herein or any of the
transactions contemplated hereby.
18. SECTION TITLES. Section titles and references used in this Amendment
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreements among the parties hereto.
19. RELEASE OF CLAIMS. TO INDUCE LENDER TO ENTER INTO THIS AMENDMENT,
BORROWER HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES LENDER, AND ALL
OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF LENDER, FROM
ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION OF ANY
KIND OR NATURE (IF THERE BE ANY), WHETHER ABSOLUTE OR CONTINGENT, DISPUTED OR
UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR UNKNOWN, THAT BORROWER NOW HAS OR
EVER HAD AGAINST LENDER ARISING UNDER OR IN CONNECTION WITH ANY OF THE LOAN
DOCUMENTS OR OTHERWISE. BORROWER REPRESENTS AND WARRANTS TO LENDER THAT BORROWER
HAS NOT TRANSFERRED OR ASSIGNED TO ANY PERSON ANY CLAIM THAT BORROWER EVER HAD
OR CLAIMED TO HAVE AGAINST LENDER.
20. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO THIS
AMENDMENT.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal in and delivered by their respective duly authorized
officers on the date first written above.
ATTEST: NATIONAL VISION, INC.
("Borrower")
/s/ Xxxxxxxx Xxxxxxx By:/s/ Xxxx X. Xxxxxxxxxx, Xx.
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Secretary
Title: Senior Vice President
and Chief Financial
Officre
[CORPORATE SEAL]
FLEET CAPITAL CORPORATION
("Lender")
By:/s/ Xxxxx Xxxxx
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Title:Vice President
[Consent and Reaffirmation on following page]
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