EXHIBIT 10.1
EXECUTION COPY
FIRST AMENDMENT
FIRST AMENDMENT, dated as of August 23,2002 (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. Amendment to Subsection 8.8. Subsection 8.8 of the Credit Agreement is
hereby amended by deleting such subsection in its entirety and substituting in
lieu thereof the following:
"Make any expenditure in respect of the purchase or other
acquisition of fixed or capital assets and/or in respect of the
development of computer systems owned or operated by the Borrowers and
their Subsidiaries, except for expenditures in the ordinary course of
business in an aggregate amount for the Borrowers and their Subsidiaries
not to exceed in any fiscal year $60,000,000."
3. Amendment to Section 9. Section 9(l) of the Credit Agreement is hereby
amended by deleting such Section in its entirety and substituting in lieu
thereof the following:
"(1) CNG shall engage in any business other than the owning of the
capital stock of the Borrowers and all actions incidental thereto or in
connection therewith, including, without limitation, entering into the CNG
Guarantee and Cash Collateral Agreement and the maintenance of cash
management arrangements for the Borrowers and their Subsidiaries or CNG
shall incur any material liabilities (other than the Senior
Subordinated Notes, the Senior Subordinated 1997 Notes or the Senior
Subordinated 2002 Notes); provided, however, that, notwithstanding the
foregoing, CNG may enter into (i) leases (other than Financing Leases) of
real and personal property that will be used by its Subsidiaries and
Affiliates, the payments under which constitute Rental Expense and (ii)
one or more Interest Rate Protection Agreements having an aggregate
notional amount of not more than $75,000,000 pursuant to which the fixed
rate of interest payable in respect of such amount of the Senior
Subordinated Notes, Senior Subordinated 1997 Notes and Senior Subordinated
2002 Notes will be effectively converted into a floating rate of interest;
or"
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 other Loan Parties, 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.
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
---------------------------------
Title: Treasurer
THINGS REMEMBERED, INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Treasurer
PEARLE, INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Vice President & Treasurer
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY,
as Administrative Agent
By: /s/ Xxxxxxxxx Xxxx
---------------------------------
Title: Authorized Signatory
CIBC INC.
By: /s/ Xxxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxxx Xxxx
Title: Executive Director
CIBC World Markets Corp. As Agent
FIFTH THIRD BANK
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: XXXXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
The undersigned Guarantors do hereby
consent and agree to the foregoing
First Amendment:
XXXX NATIONAL CORPORATION
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Vice President & Treasurer
XXXX NATIONAL CORPORATION
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Vice President & Treasurer
BAY CITIES OPTICAL COMPANY
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Treasurer
WESTERN STATES OPTICAL, INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Treasurer
XXXX VISION SERVICES, INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Treasurer
XXXX LENS SUPPLY, INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Treasurer
THINGS REMEMBERED PERSONALIZED
GIFTS, INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Treasurer
PEARLE VISION, INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Vice President, Treasurer
AMERICAN VISION CENTERS, INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Vice President, Treasurer
NUVISION INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Title: Vice President, Treasurer
