EXHIBIT 10.70
EXECUTION COPY
WAIVER
WAIVER (this "Waiver") dated as of May 9, 2003 to the Amended
and Restated Credit Agreement, dated as of May 23, 2002 (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"), XXXXXX COMMERCIAL PAPER
INC., as syndication agent, WACHOVIA BANK, NATIONAL ASSOCIATION, as
documentation agent 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").
WITNESSETH:
WHEREAS, the Borrowers, the Lenders and the Administrative Agent
are parties to the Credit Agreement; and
WHEREAS, the Borrowers have requested that violations of a
certain covenant in the Credit Agreement be waived in the manner provided for in
this Waiver and the Lenders are willing to waive such violations, but only upon
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Waiver. The Lenders hereby waive any violation of
Section 8.1(a) of the Credit Agreement that has resulted as of the end of the
fiscal quarters ended May 4, 2002, August 3, 2002, November 2, 2002 and February
1, 2003 or that may result as of the end of the fiscal quarter ending May 3,
2003, provided that such waiver shall automatically terminate and have no
further force or effect if (a) it shall be determined that the Leverage Ratio
exceeded 4.45 to 1.00 as of February 1, 2003 or (b) on any date during the
period from February 2, 2003 through the date upon which such waiver shall
expire pursuant to the immediately succeeding sentence, the ratio of (i) Total
Indebtedness on such date to (ii) EBITDA for the twelve-month period most
recently ended prior to such date for which financial statements shall have been
delivered to each Lender pursuant to Section 7.1(c) of the Credit Agreement
shall be determined to have exceeded, or shall exceed, as the case may be, 4.45
to 1.00. The waivers set forth in this Section shall expire and have no further
force or effect on (x) May 17, 2003, if the Borrowers have not then furnished to
each Lender CNG's Form 10-K for the fiscal year ended February 1, 2003 and CNG's
restated Form lO-Q's for the fiscal quarters ended May 4,2002, August 3, 2002
and November 2, 2002, (y) May 23, 2003, if the Borrowers have not then furnished
to each Lender the revised financial projections of the balance sheet, statement
of income and statement of cash flows on a Consolidated basis of CNG and its
Subsidiaries for fiscal years 2003 through 2006 (which shall be in reasonable
detail and on a quarter-by-quarter basis for fiscal years 2003 and 2004 and on a
year-by-year basis for fiscal years 2005 and 2006 and shall be accompanied by a
certificate of a Responsible Officer with respect thereto of a type described in
Section 7.2(c) of the Credit Agreement) or (z) June 30, 2003, otherwise. The
Lenders acknowledge and agree that the changes in the reported financial
condition of the Borrowers and their Subsidiaries as a result of the change in
accounting treatment that occurred in the fiscal fourth quarter of 2002 for,
among other things, sales of certain optical product warranties as a result of
the re-audit of the financial statements of the Borrowers and the Subsidiaries
for prior fiscal years by Deloitte & Touche, which have replaced Xxxxxx Xxxxxxxx
as the Borrowers' auditors, do not result in a Material Adverse Effect.
SECTION 3. Representations and Warranties. After giving effect
to this Waiver, the Borrowers hereby confirm that the representations and
warranties set forth in Section 5 of the Credit Agreement are true and correct
in all material respects on and as of the date hereof as if made on and as of
such date. Each Borrower represents and warrants that, after giving effect to
this Waiver, no Default or Event of Default (other than any which has been
hereby waived) has occurred and is continuing.
SECTION 4. Effectiveness. This Waiver shall become effective
upon execution and delivery by each of the Borrowers, the other Loan Parties,
the Administrative Agent and the Majority Lenders.
SECTION 5. Continuing Effect of Credit Agreement. This Waiver
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. The provisions of the Credit Agreement are and shall
remain in full force and effect.
SECTION 6. Counterparts. This Waiver may be executed by one or
more of the parties hereto on any number of separate counterparts, and all such
counterparts shall be deemed to be one and the same instrument. Each party
hereto confirms that any facsimile copy of such party's executed counterpart of
this Waiver (or its signature page thereof) shall be deemed to be an executed
original thereof.
SECTION 7. Expenses. The Borrowers agree to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of this
Waiver, including without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent.
SECTION 8. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver
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/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer and Assistant Secretary
THINGS REMEMBERED, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer and Assistant Secretary
PEARLE, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Vice President, Treasurer and Asst. Sec.
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY,
as Administrative Agent
By: /s/ XXXXXX XXXXXXX
---------------------------------
Title: XXXXXX XXXXXXX
EXECUTIVE DIRECTOR
CIBC WORLD MARKETS CORP., AS AGENT
CIBC INC.
By: /s/ XXXXXX XXXXXXX
---------------------------------
Name: XXXXXX XXXXXXX
Title: EXECUTIVE DIRECTOR
CIBC WORLD MARKETS CORP., AS AGENT
XXXXXX COMMERCIAL PAPER INC.
By: /s/ XXXXXXX XXXXX
---------------------------------
Name: XXXXXXX XXXXX
Title: AUTHORIZED SIGNATORY
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXXX X.XXX
---------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXXX X. XXXXXXX, VP
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
FIFTH THIRD BANK
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THINGS REMEMBERED PERSONALIZED
GIFTS, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer and Asst. Secretary
PEARLE VISION, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Vice President, Treasurer,
Asst. Secretary
AMERICAN VISION CENTERS, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Vice President, Treasurer,
Asst. Secretary
NUVISION, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Vice President, Treasurer,
Asst. Secretary
The undersigned Guarantors do hereby consent
and agree to the foregoing Waiver:
XXXX NATIONAL CORPORATION
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Vice President and Treasurer
XXXX NATIONAL GROUP, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Vice President and Treasurer
BAY CITIES OPTICAL COMPANY
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer and Asst. Secretary
WESTERN STATES OPTICAL, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer and Asst. Secretary
XXXX VISION SERVICES, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer
XXXX LENS SUPPLY, INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer and Asst. Secretary
