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Exhibit 10.33
AMENDMENT
AMENDMENT, dated as of January 13, 1997 (this "AMENDMENT"), to the
Credit Agreement, dated as of November 15, 1996 (as amended, supplemented or
otherwise modified, the "CREDIT AGREEMENT"), among XXXX VISION CORPORATION, a
Delaware corporation ("XXXX VISION"), THINGS REMEMBERED, INC., a Delaware
corporation ("THINGS REMEMBERED"), XXXX GIFT CENTERS, INC., a Delaware
corporation ("XXXX GIFTS"), PEARLE, INC., a Delaware corporation ("PEARLE") and
PEARLE SERVICE CORPORATION, a Delaware corporation ("PSC"; Xxxx Vision, Things
Remembered, Xxxx Gifts, Pearle and PSC 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 8.3. Subsection 8.3 of the Credit Agreement
is hereby amended by inserting the following new paragraph (m) at the end
thereof:
"(m) Liens on Inventory which is the subject of a trade letter of
credit issued for the account of a Borrower by CoreStates Bank, N.A. or
CoreStates Bank International, to the extent permitted pursuant to
subsection 8.1(f), on the various documents related thereto and on the
proceeds thereof; PROVIDED that (i) any such Lien is not spread to
cover any other property or assets of any Borrower, (ii) the amount of
Indebtedness secured thereby is not increased and (iii) the
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Lien on the subject property shall terminate according to its terms
upon payment in full of the reimbursement obligations with respect to
the relevant trade letter of credit."
3. AUTHORIZATION TO ADMINISTRATIVE AGENT. The Lenders hereby authorize
the Administrative Agent to enter into an agreement with CoreStates in
substantially the form of Exhibit A hereto.
4. AMENDMENT TO SCHEDULE II TO CREDIT AGREEMENT. Schedule II to the
Credit Agreement is hereby amended by deleting such Schedule in its entirety and
inserting in lieu thereof the Revised Schedule II attached hereto as Exhibit B.
5. 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.
6. EFFECTIVENESS. This Amendment shall be effective upon execution and
delivery by each of the Borrowers, the Administrative Agent and the Majority
Lenders.
7. 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.
8. 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.
9. 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.
10. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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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
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Title:
THINGS REMEMBERED, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title:
XXXX GIFT CENTERS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title:
PEARLE, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title:
PEARLE SERVICE CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
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Title:
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CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY,
as Administrative Agent
By: /s/ [Authorized Signatory]
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Title:
CIBC INC.
By: /s/ [Aughorized Signatory]
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Title:
CREDIT SUISSE
By: /s/ Xxxxxx X. Xxxx
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Title: Associate
By: /s/ [Authorized Signatory]
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Title:
NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
