Exhibit 10.20
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made and entered into this 19th day of December, 2003, 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 CAPITAL
CORPORATION, a Rhode Island corporation (hereinafter referred to as "Lender")
with an office at 000 Xxxxxxxx Xxxxxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000.
RECITALS:
Lender and Borrower are parties to a certain Loan and Security
Agreement dated May 30, 2001 (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. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as follows:
(a) By deleting Section 2.2.5 of the Loan Agreement in
its entirety and by substituting the following new Section 2.2.5 in lieu
thereof:
2.2.5. Audit and Appraisal Fees. Borrower shall
reimburse Lender for all reasonable costs, expenses and
standard fees incurred by Lender in connection with all audits
and appraisals of any Obligor's books and records or any
Collateral as Lender shall deem appropriate and shall pay to
Lender an audit fee ($850 as of the date hereof) per day for
each day that an employee or agent of Lender shall be engaged
in an audit of any Obligor's books and records or the
Collateral.
(b) By deleting Section 5.1 of the Loan Agreement in its
entirety and by substituting the following new Section 5.1 in lieu thereof:
5.1 Original Term of Revolver Commitment.
Subject to Lender's right to cease making Revolver Loans and
other extensions of credit to Borrower when any Default or
Event of Default exists or upon termination of the Revolver
Commitment as provided in SECTION 5.2 hereof, the Revolver
Commitment shall be in effect for a period of 6 years from May
30,2001 through the close of business on May 30,2007 (the
"Original Term").
(c) By deleting Section 5.2.3 of the Loan Agreement in
its entirety and by substituting the following new section 5.2.3 in lieu
thereof:
5.2.3. Termination Charges. On the effective date
of termination of the Revolver Commitment pursuant to SECTION
5.2.2, Borrower shall pay to Lender (in addition to the then
outstanding principal, accrued interest, fees and other
charges owing under the terms of this Agreement and any of the
other Loan Documents), as liquidated damages for the loss of
the bargain and not as a penalty, an amount equal to 1.00% of
the Revolver Commitment if termination occurs during the
fourth Loan Year; and .50% of the Revolver Commitment if
termination occurs during the fifth Loan Year. In no event
shall any termination charge be payable if the effective date
of termination occurs any time after the last day of the fifth
Loan Year.
(d) By deleting Section 9.1.9 of the Loan Agreement in
its entirety and by substituting the following new Section 9.1.9 in lieu
thereof:
9.1.9 Reserved.
(e) By adding the following new subsection (iii) to
Section 9.2.22 thereof immediately after subsection (ii) of Section 9.2.22
thereof and immediately preceding Section 9.3 thereof:
(iii) Purchase any New Senior Note, unless at the
time of and after giving effect to any such purchase each of
the following conditions is met: (a) no Default or Event of
Default shall exist; and (b) Average Availability for the
thirty-day period immediately preceding such purchase, and
Availability after giving effect to such purchase, is not less
than $1,000,000. As a condition precedent to Borrower's or any
Subsidiary's purchase of New Senior Notes in accordance with
this SECTION 9.2.22(III), Borrower shall provide to Lender, a
certificate from a Senior Officer of Borrower that (w) sets
forth Borrower's intent to purchase New Senior Notes, (x)
discloses the aggregate purchase price to be paid by Borrower
for the purchase of such New Senior Notes and (y) states that
no Default or Event of Default is in existence as of the date
of the certificate or will be in
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existence as of the date of such purchase (both with and
without giving effect to the making of such purchase). Such
certificate shall include the calculations demonstrating that
(a) the Consolidated Fixed Charge Coverage Ratio for the 12
Reporting Periods ending on the last day of the most recently
ended Reporting Period preceding such purchase or purchases
for which financial statements have been delivered to Lender
in accordance with SECTIONS 9.1.3(i) or (ii) hereof, as
applicable, is not less than 1.0 to 1.0, (b) Consolidated
EBITDA for the 12 Reporting Periods ending on the last day of
the most recently ended Reporting Period preceding such
purchase or purchases for which financial statements have been
delivered to Lender in accordance with SECTIONS 9.3.1 (i) or
(ii) hereof, as applicable, is not less than $ 19,600,000, and
(c) Average Availability for the thirty-day period prior to
the date of such certificate is not less than $1,000,000. All
purchases disclosed in any certificate of the type described
above in this SECTION 9.2.22(iii) shall be consummated within
the 15-Business Day period following the date of such
certificate (with the first Business Day of such period being
the Business Day immediately following the date of such
certificate). Any purchase of New Senior Notes disclosed in
any certificate delivered by a Senior Officer of Borrower to
Lender in compliance with the requirements of this SECTION
9.2.22(iii) likewise shall satisfy the requirements of SECTION
9.2.6 hereof.
(f) By deleting Section 9.3.1 of the Loan Agreement in
its entirety and by substituting the following new Section 9.3.1 in lieu
thereof:
9.3.1. Minimum Consolidated EBITDA. Achieve
Consolidated EBITDA of not less than $19,600,000 for the 12
Reporting Periods ending on the last day of each Reporting
Period from and after the Reporting Period ending on September
30,2003.
(g) By deleting clause (viii) of the definition of
Availability Reserve in Appendix A to the Loan Agreement and by substituting the
following in lieu thereof:
(viii) an amount equal to $500,000;
(h) By deleting the definition of Consolidated Adjusted
Net Earnings in Appendix A to the Loan Agreement in its entirety and by
substituting the following new definition in lieu thereof:
Consolidated Adjusted Net Earnings - with respect to
any fiscal period, means the Consolidated Net Income (or loss)
for such fiscal period of Borrower and the Subsidiaries, all
as reflected on the financial statement of Borrower supplied
to Lender pursuant to SECTION 9.1.3 of the Agreement, but
excluding: (i) any gain or loss arising from the sale of
capital assets; (ii) any gain arising from any write-up of
assets during such period; (iii) earnings of any Subsidiary
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accrued prior to the date it became a Subsidiary; (iv)
earnings of any Person, substantially all the assets of which
have been acquired in any manner of Borrower, realized by such
Person prior to the date of such acquisition; (v) net earnings
of any entity (other than a Subsidiary of Borrower) in which
Borrower has an ownership interest unless such net earnings
have actually been received by Borrower in the form of cash
Distributions; (vi) any portion of the net earnings of any
Subsidiary which for any reason is unavailable for payment of
Distributions to Borrower; (vii) the earnings of any Person to
which any assets of Borrower shall have been sold, transferred
or disposed of, or into which Borrower shall have merged, or
been a party to any consolidation or other form of
reorganization, prior to the date of such transaction; (viii)
any gain arising from the acquisition of any Securities of
Borrower; (ix) without duplication, any gain arising from the
acquisition of New Senior Notes; and (x) any gain arising from
extraordinary or nonrecurring items, all as determined on a
Consolidated basis in according with GAAP.
(i) By deleting the definition of Consolidated Fixed
Charge Coverage Ratio in Appendix A to the Loan Agreement in its entirety and by
substituting the following new definition in lieu thereof (which shall also
supersede the definition of Consolidated Fixed Charge Coverage Ratio set forth
in the letter agreement dated as of December 28, 2002, from Lender to Borrower):
Consolidated Fixed Charge Coverage Ratio - for the 6
Reporting Periods of Borrower ending on the date of
determination, the ratio of (i) the sum of (a) Consolidated
EBITDA for such period minus (b) Borrower's Capital
Expenditures for such period minus (c) Taxes based on income
paid during such period plus (d) any decrease in Consolidated
Working Capital during such period or minus any increase in
Consolidated Working Capital during such period to (ii) the
sum of (x) Consolidated Fixed Charges for such period plus (y)
the amount of any mandatory redemption of the New Senior Notes
to which the holders of the New Senior Notes would be entitled
under the New Notes Indenture calculated as of the date of
determination and to be paid during the immediately succeeding
6 Reporting Periods plus (z) the aggregate amounts expended by
Borrower or any Subsidiary to purchase New Senior Notes during
such period. For purposes hereof, if, after the date on which
Borrower pays to the holders of the New Senior Notes the
amount of any mandatory redemption of the New Senior Notes
required pursuant to the New Notes Indenture, there is a
Financial Adjustment (as defined in the New Notes Indenture,
as in effect on the Closing Date) as provided in Section 3.06
of the New Notes Indenture (as in effect on the Closing Date),
then the amount of such mandatory redemption shall be
retroactively adjusted by the amount of such Financial
Adjustment.
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(j) By deleting the definition of Inventory Formula
Amount in Appendix A to the Loan Agreement in its entirety and by substituting
the following new definition in lieu thereof:
Inventory Formula Amount - on any date of
determination thereof, an amount equal to the lesser of (i)
$8,500,000 or (ii) 50% of the Value of Eligible Inventory on
such date.
(k) By adding the following new clause (ix) to the end of
the definition of Restricted Investment in Appendix A to the Loan agreement as
follows:
(ix) the purchase of New Senior Notes from time to time,
subject to Borrower's satisfaction of the requirements of
SECTION 9.2.22(III) of the Agreement at each such time.
(1) By deleting SCHEDULES 7.1.1 and 8.1.1 to the Loan
Agreement and by substituting in lieu thereof SCHEDULES 7.1.1 and 8.1.1 attached
to this Amendment.
(m) Pursuant to Section 2(b) of this Amendment, the
automatic renewal provisions relative to the original Term have been eliminated
from the Loan Agreement. In order to give effect to such elimination, any and
all references to the term "Renewal Term" in the Loan Agreement or other Loan
Documents shall be deleted therefrom and deemed to be of no force or effect.
(n) By adding the following new definition to Appendix A
to the Loan Agreement in the proper alphabetical sequence:
Average Availability - for any period, an amount
equal to the sum of the actual amount of Availability on each
day during such period, as determined by Lender, divided by
the number of days in such period. For purposes hereof, the
amount of Availability on any day that is not a Business Day
shall be deemed to be the amount of Availability on the most
recent Business Day preceding such day.
3. TERMINATION OF LETTER AGREEMENT. This Amendment, and the terms
hereof, shall supersede the letter agreement dated June 30, 2002, from Lender to
Borrower with respect to the purchase by Borrower of New Senior Notes, which
letter agreement shall be of no further force or effect.
4. ADDITIONAL COVENANT. To induce Lender to enter into this
Amendment, Borrower covenants and agrees that, simultaneously with the execution
and delivery of this Amendment, Borrower shall pay to Lender an appraisal fee of
$7,000 plus all out-of-pocket expenses incurred by Lender in connection with the
appraisal of Borrower's Inventory and Equipment prior to the date of this
Amendment.
5. 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.
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6. 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.
7. 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.
8. 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.
9. 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.
10. CONDITIONS PRECEDENT. The effectiveness of the amendments
contained in Section 2 hereof are subject to the satisfaction of each of the
following conditions precedent, in form and substance satisfactory to Lender,
unless satisfaction thereof is specifically waived in writing by Lender:
(a) Borrower shall cause Borrower's counsel to issue and
deliver to Lender a written opinion as to, among other things, the due
authorization by Borrower of the execution, delivery and performance of the Loan
Documents.
(b) Borrower shall have established a relationship and
arrangement with Bank pursuant to which Bank shall provide credit card and
merchant services to Borrower.
(c) Lender shall have received current appraisals of
Borrower's Equipment and Inventory, conducted and prepared by independent
appraisers that are in all respects acceptable to Lender.
11. AMENDMENT FEE; EXPENSES OF LENDER. In consideration of
Lender's willingness to enter into this Amendment as set forth herein, Borrower
agrees to pay to Lender an amendment and extension fee in the amount of $150,000
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 and the costs of the appraisals described in Section 10(c) hereof.
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12. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of Georgia.
13. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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/
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Secretary By: /s/ Xxxxxx X. Xxxx
---------------------------------
[CORPORATE SEAL] Title: Senior Vice President CFO
FLEET CAPITAL CORPORATION
("Lender")
By:
---------------------------------
Title:
[Consent and Reaffirmation 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")
-------------------------
Secretary By:
---------------------------------
[CORPORATE SEAL] Title:
FLEET CAPITAL CORPORATION
("Lender")
By: /s/
---------------------------------
Title: Senior Vice President
--------------------------
[Consent and Reaffirmation on following page]
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CONSENT AND REAFFIRMATION
Each of the undersigned guarantors of the Obligations of Borrower at
any time owing to Lender hereby: (i) acknowledges receipt of a copy of the
foregoing Second Amendment to Loan and Security Agreement and Waiver; (ii)
consent to Borrower's execution and delivery thereof and of the other documents,
instruments or agreements Borrower agrees to execute and deliver pursuant
thereto; (iii) agrees to be bound thereby; and (iv) affirms that nothing
contained therein shall modify in any respect whatsoever its respective guaranty
of the Obligations and reaffirms that such guaranty is and shall remain in full
force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Consent and
Reaffirmation, as of the date of such First Amendment to Loan and Security
Agreement.
INTERNATIONAL VISION ASSOCIATES, LTD.
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
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NVAL HEALTHCARE SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
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VISTA OPTICAL EXPRESS, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
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MIDWEST VISION, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
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[Signatures continued on next page]
VISION ADMINISTRATORS, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
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ALEXIS HOLDING COMPANY
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
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VISTA EYECARE NETWORK, LLC
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
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