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Exhibit 10.45
EXECUTION COPY
FOURTH AMENDMENT
FOURTH AMENDMENT, dated as of March 5, 1999 (this
"AMENDMENT"), to the Credit Agreement, dated as of November 15, 1996 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among XXXX VISION CORPORATION, a Delaware corporation ("XXXX
VISION"), THINGS REMEMBERED, INC., a Delaware corporation ("THINGS REMEMBERED")
and PEARLE, INC., a Delaware corporation ("PEARLE"; Xxxx Vision, Things
Remembered and Pearle each being referred to as a "BORROWER" and collectively as
the "BORROWERS"), the several banks and other financial institutions from time
to time parties thereto (collectively, the "LENDERS") and CANADIAN IMPERIAL BANK
OF COMMERCE, a Canadian-chartered bank acting through its New York Agency, as
administrative agent for the Lenders thereunder (in such capacity, the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Administrative
Agent are parties to the Credit Agreement;
WHEREAS, the Borrowers have requested that the Administrative
Agent and the Lenders amend the Credit Agreement as set forth herein; and
WHEREAS, the Administrative Agent and the Lenders are willing
to effect such amendment, but only upon the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Borrowers, the Lenders and the
Administrative Agent hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms
defined in the Credit Agreement shall have such meanings when used herein.
2. AMENDMENT TO SUBSECTION 1.1. Subsection 1.1 of the Credit
Agreement is hereby amended by changing the definition of "EBITDA" to read in
its entirety as follows:
"`EBITDA': for any period, with respect to CNG and its
Subsidiaries on a consolidated basis, determined in accordance
with GAAP, an amount equal to the sum of (a) Net Income for
such period, plus (b) income taxes, excluding income taxes
(either positive or negative) attributable to extraordinary
and non-recurring gains or losses or sales or other
dispositions of assets permitted under subsection 8.6, plus
(c) Interest Expense for such period, plus (d) depreciation
for such period, plus (e)
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amortization for such period, plus (f) any other non-cash
items (including minority interests) reducing Net Income for
such period, plus (g) amortization of deferred financing costs
and expenses for such period, minus (h) all non-cash items
increasing Net Income for such period, minus (i) all cash
payments made in such period in respect of restructuring
charges deducted in calculating Net Income for such period or
any prior period (excluding any such cash payments made in
respect of (i) the $8,000,000 pre-tax business integration
charge associated with the AVC acquisition taken by CNG during
fiscal 1997, (ii) the $61,100,000 pre-tax charge for certain
unusual and non-recurring items related to the Pearle
acquisition taken by CNG in the fourth quarter of fiscal 1996
and (iii) the $25,000,000 pre-tax restructuring charge taken
by CNG in the fourth quarter of fiscal 1998).".
3. AMENDMENT TO SUBSECTIONS 8.1(a) AND 8.1(b). Subsections
8.1(a) and 8.1(b) of the Credit Agreement are hereby amended by deleting such
subsections in their entirety and substituting in lieu thereof the following:
"(a) LEVERAGE RATIO. Permit the Leverage Ratio as of the end
of each fiscal quarter of CNG ending on or about any of the dates set
forth below to be greater than the ratio set forth opposite such date
below:
FISCAL QUARTER ENDING LEVERAGE RATIO
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January 31, 1997 3.85 to 1.00
April 30, 1997 3.75 to 1.00
July 31, 1997 3.60 to 1.00
October 31, 1997 3.45 to 1.00
January 31, 1998 3.25 to 1.00
April 30, 1998 3.10 to 1.00
July 31, 1998 2.95 to 1.00
October 31, 1998 2.80 to 1.00
January 31, 1999 2.80 to 1.00
April 30, 1999 2.80 to 1.00
July 31, 1999 2.80 to 1.00
October 31, 1999 2.80 to 1.00
January 31, 2000 2.80 to 1.00
Thereafter 2.80 to 1.00
(b) ADJUSTED INTEREST COVERAGE RATIO. Permit the Adjusted
Interest Coverage Ratio as of the end of each fiscal quarter of CNG
ending on or about any of the dates set forth below to be less than the
ratio set forth opposite such date below:
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ADJUSTED
FISCAL QUARTER ENDING INTEREST COVERAGE RATIO
January 31, 1997 1.40 to 1.00
April 30, 1997 1.50 to 1.00
July 31, 1997 1.55 to 1.00
October 31, 1997 1.60 to 1.00
January 31, 1998 1.65 to 1.00
April 30, 1998 1.70 to 1.00
July 31, 1998 1.75 to 1.00
October 31, 1998 1.80 to 1.00
January 31, 1999 1.75 to 1.00
April 30, 1999 1.75 to 1.00
July 31, 1999 1.75 to 1.00
October 31, 1999 1.75 to 1.00
January 31, 2000 1.75 to 1.00
Thereafter 1.75 to 1.00".
4. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
confirms, reaffirms and restates the representations and warranties made by it
in Section 5 of the Credit Agreement, PROVIDED that each reference to the Credit
Agreement therein shall be deemed to be a reference to the Credit Agreement
after giving effect to this Amendment. Each Borrower represents and warrants
that, after giving effect to this Amendment, no Default or Event of Default has
occurred and is continuing.
5. EFFECTIVENESS. This Amendment shall be effective upon
execution and delivery by each of the Borrowers, the Administrative Agent and
the Majority Lenders.
6. CONTINUING EFFECT OF CREDIT AGREEMENT. This Amendment shall
not constitute a waiver, amendment or modification of any other provision of the
Credit Agreement not expressly referred to herein and shall not be construed as
a waiver or consent to any further or future action on the part of the Borrowers
that would require a waiver or consent of the Lenders or the Administrative
Agent. Except as expressly amended or modified herein, the provisions of the
Credit Agreement are and shall remain in full force and effect.
7. COUNTERPARTS. This Amendment may be executed by one or more
of the parties to this Amendment on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Amendment signed by all the parties shall be lodged with the
Borrowers and the Administrative Agent.
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8. PAYMENT OF EXPENSES. The Borrowers agree, jointly and
severally, to pay or reimburse the Administrative Agent for all of its
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of this Amendment and any other documents prepared in
connection herewith, and the consummation and administration of the transactions
contemplated hereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent.
9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
XXXX VISION CORPORATION
By: /s/ X. Xxxxxxxx
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Title:
THINGS REMEMBERED, INC.
By: /s/ X. Xxxxxxxx
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Title:
PEARLE, INC.
By: /s/ X. Xxxxxxxx
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Title:
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CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY,
as Administrative Agent
By: /s/ Xxxxxxxxx Xxxx
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Title: Authorized Signatory
CIBC INC.
By: /s/ Xxxxxxxxx Xxxx
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Title: Executive Director
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CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxx Xxxxxxxxx
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Title: Managing Director
By: /s/ Xxxxxx Xxxx
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Title: Vice President
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FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxx Xxxxxxxxxxx Xxxxxx
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Title: Vice President
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NATIONAL CITY BANK
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
