Exhibit 10.66
EXECUTION COPY
THIRD AMENDMENT
THIRD AMENDMENT, dated as of December 16, 2002 (this "Amendment"), 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").
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 and the other Loan Parties 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 other Loan Parties, 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. Amendments to Subsection 1.1.
(a) The definition of "EBITDA" is hereby amended by deleting the phrase
"CNG and its Subsidiaries" and replacing it with the phrase "CNG, its
Subsidiaries and Newco".
(b) The definition of "EBITDA" is hereby further amended by inserting
the following proviso at the end thereof:
", provided that, in computing EBITDA for any period of four
consecutive fiscal quarters which includes the fourth quarter of 2002
but which does not in any event include any fiscal quarter after the
third quarter of 2003, the Company shall be entitled to add back up to
an amount not to exceed (x) $5,000,000 to reflect the effects of the
change in accounting treatment that occurred in the fourth quarter of
2002 for sales of certain optical product warranties and to reflect any
other one-time non-recurring effects of the changes in accounting
methods that occurred in the fourth quarter of 2002 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 and (y) $2,000,000 to reflect the audit fees
incurred in the fourth quarter of 2002 and the first quarter of 2003
associated with the re-audit of prior period results".
(c) The following definition of "Newco" is hereby inserted in
appropriate alphabetical order to read as follows:
"Newco: Pearle Franchise Corporation, a Delaware corporation."
(d) The definition of "Subsidiary" is hereby amended by inserting the
following proviso at the end of the second sentence thereof:
", provided that, with respect to the Borrowers, Newco shall not be
considered a Subsidiary".
3. Amendments to Subsection 8.5.
(a) Subsection 8.5(b) is hereby amended by deleting the word "and" at
the end thereof.
(b) Subsection 8.5(c) is hereby amended by deleting the period at the
end thereof and replacing it with a semicolon and the word "and".
(c) A new Subsection 8.5(d) is hereby inserted to read as follows:
"(d) Newco may be merged with or consolidated into Pearle Vision Inc.
(provided that (i) Pearle Vision Inc. shall be the continuing or surviving
corporation and (ii) after giving effect to such merger or consolidation,
no Default or Event of Default shall be in existence)."
4. Amendments to Subsection 8.9.
(a) Subsection 8.9(h) is hereby amended by deleting the word "and" at
the end thereof.
(b) Subsection 8.9(i) is hereby amended by relabelling it as Subsection
8.9(j).
(c) A new Subsection 8.9(i) is hereby inserted to read as follows:
"(i) a one-time cash capital contribution to Newco (and no other
investments in or loans or advances to Newco) in an amount not to exceed
$2,000,000, provided that prior to or contemporaneously with the making of
such capital contribution all the requirements of subsection 7.10(a) with
respect to Newco shall have been complied with and provided, further, that
(i) the Borrowers shall not permit Newco to create, incur, assume or suffer
to exist any Indebtedness, (ii) the Borrowers shall cause Newco to
distribute to a Subsidiary by means of dividends any retained earnings in
excess of $2,000,000 and (iii) the Borrowers shall not permit Newco to
engage in any business other than the marketing and sale of franchises;
and".
5. Amendment to Subsection 8.10(x). Subsection 8.10(x) is hereby amended
by inserting the words "or Newco" after the words "or a Foreign Subsidiary".
6. 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.
7. Effectiveness. This Amendment shall be effective on the date upon which
(a) the Administrative Agent shall have received executed counterparts from each
of the Borrowers, the other Loan Parties, itself and the Majority Lenders and
(b) the Administrative Agent shall have received, on behalf of each Lender who
has executed this Amendment on or before December 20, 2002, an amendment fee
from the Parent Borrower in an amount equal to 0.10% of such Lender's Revolving
Credit Commitment.
8. 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.
9. 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.
10. 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.
11. 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/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer & Asst. Secretary
THINGS REMEMBERED, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer & Asst. Secretary
PEARL, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Xxxxxx Xxxxxxxx
Vice President, Treasurer &
Asst. Secretary
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY,
as Administrative Agent
By:
-----------------------------------
Title
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:
------------------------------
Title:
THINGS REMEMBERED, INC.
By:
------------------------------
Title:
PEARLE, INC.
By:
------------------------------
Title:
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
------------------------------
Title: XXXXXX XXXXXXX
EXECUTIVE DIRECTOR
CIBC WORLD MARKETS CORP., AS AGENT
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx Charg
------------------------------
Title: Xxxxxxx Charg
Authorized Signatory
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
FIFTH THIRD BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: V. P.
The undersigned Guarantors do hereby consent
and agree to the foregoing Amendment:
XXXX NATIONAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Xxxxxx Xxxxxxxx
Vice President & Treasurer
XXXX NATIONAL GROUP, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Xxxxxx Xxxxxxxx
Vice President & Treasurer
BAY CITIES OPTICAL COMPANY
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer & Asst. Secretary
WESTERN STATES OPTICAL, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer & 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 & Asst. Secretary
THINGS REMEMBERED PERSONALIZED
GIFTS, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer & 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
XXXX VISION LPA, LLC
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Xxxxxx Xxxxxxxx
Treasurer
