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Exhibit 10.34
SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 8, 1997 (this
"AMENDMENT"), to the Credit Agreement, dated as of November 15, 1996 (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"),
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 1.1. Subsection 1.1 of the Credit
Agreement is hereby amended by inserting the following new definitions in their
proper alphabetical order:
"`SENIOR SUBORDINATED 1997 NOTES': the senior subordinated
notes due 2007 proposed to be issued by CNG pursuant to a Rule 144A
offering during the month of August 1997 having substantially the same
terms as the Senior Subordinated Notes (except that they will mature in
2007 and
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will bear interest at a rate per annum based upon market conditions
current at the time of issuance), as the same may be amended,
supplemented or otherwise modified from time to time without violating
Section 9(m)."
"`SENIOR SUBORDINATED 1997 NOTES INDENTURE': the indenture to
be entered into between CNG and a trustee to be appointed by CNG
pursuant to which the Senior Subordinated 1997 Notes will be issued, as
the same may be amended, supplemented or otherwise modified from time
to time without violating Section 9(m)."
3. AMENDMENT TO SUBSECTION 7.7. Subsection 7.7(b) of the
Credit Agreement is hereby amended by deleting such subsection in its entirety
and substituting in lieu thereof the following:
"(b) any (i) default or event of default under any Contractual
Obligation of any Borrower or any Subsidiary, including, without
limitation, under the Senior Subordinated Notes or the Senior
Subordinated 1997 Notes or (ii) litigation, investigation or proceeding
which may exist at any time between any Borrower or any Subsidiary and
any Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected
to have a Material Adverse Effect;"
4. AMENDMENT TO SUBSECTION 8.7. Subsection 8.7(b) of the
Credit Agreement is hereby amended by deleting such subsection in its entirety
and substituting in lieu thereof the following:
"(b) dividends to CNG in an amount sufficient to allow CNG to
pay interest on the Senior Subordinated Notes, the Senior Subordinated
1997 Notes and the CNG Notes in accordance with the terms of each
thereof, PROVIDED that CNG actually uses such dividends to make such
payments of interest;"
5. AMENDMENT TO SUBSECTION 8.9. Subsection 8.9(f) of the
Credit Agreement is hereby amended by deleting such subsection in its entirety
and substituting in lieu thereof the following:
"(f) Investments, other than the purchase of the CNG Notes,
the Senior Subordinated 1997 Notes or the Senior Subordinated Notes, in
an aggregate amount not to exceed $5,000,000."
6. AMENDMENT TO SUBSECTION 8.12. Subsection 8.12 of the Credit
Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
"8.12 LIMITATION ON NEGATIVE PLEDGE CLAUSES. Enter into with
any Person any agreement, which prohibits or limits the ability of any
Borrower or any of its
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Subsidiaries to create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than (a) this Agreement, (b) agreements in effect on
the Closing Date, including, without limitation, the Senior
Subordinated Notes Indenture, or any refinancing, refunding, renewal or
extension thereof which is permitted hereunder, (c) customary
non-assignment provisions under contracts to the extent such provisions
prohibit or limit the ability to xxxxx x Xxxx on the rights under such
contracts, (d) restrictions on granting Liens on assets under
agreements to sell or otherwise dispose of such assets and (e) the
Senior Subordinated 1997 Notes Indenture."
7. AMENDMENT TO SECTION 9. (a) Section 9(k) of the Credit
Agreement is hereby amended by deleting such Section in its entirety and
substituting in lieu thereof the following:
"(k) The Senior Subordinated Notes or the Senior Subordinated
1997 Notes, for any reason, shall not be or shall cease to be validly
subordinated, as provided therein and in the Senior Subordinated Notes
Indenture or the Senior Subordinated 1997 Notes Indenture, to the
obligations of the Borrowers under this Agreement, any Revolving Credit
Notes and the other Loan Documents; or"
(b) Section 9(l) of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof the
following:
"(l) 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 CNG Notes); or"
(c) Section 9(m) of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof the
following:
"(m) CNG shall (i) make any optional payment or prepayment on
or repurchase or redemption or purchase of the Senior Subordinated
Notes, the Senior Subordinated 1997 Notes or the CNG Notes (including,
without limitation, any payment on account of, or for a sinking or
other analogous fund for the repurchase, redemption, defeasance or
other acquisition thereof) other than (x) (so long as no Default or
Event of Default has occurred and is continuing or would occur as a
result of such repurchase), repurchases by CNG of such of the CNG Notes
and/or Senior Subordinated Notes that it is able to repurchase for an
aggregate purchase price (including fees and expenses incurred in
connection with such repurchase) not to exceed $20,000,000 and (y) the
repurchase, redemption, defeasance or other acquisition of the CNG
Notes as soon as practicable following the issuance of the Senior
Subordinated 1997 Notes with the net proceeds thereof
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and, to the extent such net proceeds are insufficient to complete such
repurchase, with other cash then held by CNG, (ii) amend, modify or
change, or consent or agree to any material amendment, modification or
change to any of the terms of the Senior Subordinated Notes, the Senior
Subordinated 1997 Notes or the CNG Notes (other than any such
amendment, modification or change which would extend the maturity or
reduce the amount of any payment of principal thereof or which would
reduce the rate or extend the date for payment of interest thereon),
(iii) amend, modify or change or consent or agree to any amendment,
modification or change to the subordination provisions or to any of the
other provisions of the Senior Subordinated Notes Indenture or the
Senior Subordinated 1997 Notes Indenture, or (iv) amend, modify or
change or consent to or agree to any amendment, modification or change
to any of the provisions of the Transaction Documents (other than the
Senior Subordinated Notes Indenture) which would adversely affect the
Lenders; or"
8. 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.
9. EFFECTIVENESS. This Amendment shall be effective upon (a)
execution and delivery by each of the Borrowers, the Administrative Agent and
the Majority Lenders and (b) receipt by CNG of gross proceeds of at least
$125,000,000 from the issuance by CNG of the Senior Subordinated 1997 Notes on
or before August 31, 1997.
10. 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.
11. 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.
12. 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,
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without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
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13. 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
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Title: Treasurer & Assistant Secretary
THINGS REMEMBERED, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Treasurer & Assistant Secretary
XXXX GIFT CENTERS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Treasurer & Assistant Secretary
PEARLE, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Vice President, Treasurer &
Assistant Secretary
PEARLE SERVICE CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
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Title: Vice President, Treasurer &
Assistant Secretary
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CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY,
as Administrative Agent
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Title: Director, CIBC Wood Gundy
Securities Corp., AS AGENT
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CIBC INC.
By: /s/ Xxxxxxxxx Xxxxxxx
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Title: Director, CIBC Wood Gundy
Securities Corp., AS AGENT
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CREDIT SUISSE FIRST BOSTON
By: [Authorized Signatory]
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Title:
By: /s/ Xxxxxxx Xxxxx
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Title: Associate
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NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. XxXxx
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Title: Senior Vice President
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CORESTATES BANK, N.A.
By: [Authorized Signatory]
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Title:
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THE FUJI BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Joint General Manager
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NATIONAL CITY BANK
By: [Authorized Signatory]
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Title:
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THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By: [Authorized Signatory]
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Title:
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YASUDA TRUST & BANK CO.
By: [Authorized Signatory]
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Title:
