FIRST AMENDMENT OF INDENTURE
THIS FIRST AMENDMENT OF INDENTURE (this "Amendment"), made and
entered into as of July 6, 2001 (the "First Amendment Effective Date"), by and
between NATIONAL VISION, INC., a Georgia corporation (the "Company"), and State
Street Bank and Trust Company, as Trustee (the "Trustee").
W I T N E S E T H:
WHEREAS, the Company and the Trustee are parties to that certain
Indenture, dated as of June 15, 2001 (the "Indenture"; capitalized terms used
herein and not otherwise defined herein shall have the meanings given such terms
in the Indenture as amended by this Amendment); and
WHEREAS, certain ambiguities, defects or inaccuracies have been
discovered in the Indenture after it was executed and delivered, and pursuant to
Section 9.01 of the Indenture, the parties hereto desire to amend the Indenture
in certain respects to resolve or eliminate such ambiguities, defects or
inaccuracies, all as set forth in and subject to the terms and conditions of
this Amendment.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments of Indenture. Subject to the terms and conditions of this
Amendment, including without limitation the fulfillment of the condition
precedent to the effectiveness of this Amendment set forth in Section 6 hereof,
the Indenture shall be amended by:
(a) deleting the first paragraph under the heading "GRANTING CLAUSES"
and by substituting, in lieu thereof, the following replacement paragraph:
"The Company hereby Grants to the Trustee as of the date
hereof, as trustee for the benefit of the Holders, a present
and continuing security interest in all of the Company's
right, title and interest, subject to the provisions set forth
below, whether now owned or hereafter acquired in, to, and
under the following types of personal property now owned or
hereafter acquired by the Company: (i) all accounts (including
without limitation health care insurance receivables); (ii)
all supporting obligations; (iii) all letter of credit rights;
(iii) all letters of credit; (iv) all chattel paper (including
without limitation electronic chattel paper); (v) all
documents; (vi) all equipment; (vii) all fixtures; (viii) all
general intangibles (including without limitation payment
intangibles); (ix) all deposit accounts; (x) all commodity
accounts; (xi) all commodity contracts; (xii) all money;
(xiii) all goods; (xiv) all instruments; (xv) all inventory;
(xvi) all investment property; and (xvii) to the extent not
otherwise included, all proceeds and products of any of the
foregoing and all accessions to, substitutions and
replacements for, and rents and profits of, each of the
foregoing (all of the foregoing referenced to in this
paragraph being referred to collectively herein as the
"Security")."
(b) deleting the third paragraph under the heading "GRANTING CLAUSES"
and by substituting, in lieu thereof, the following replacement paragraph:
"The Grant made in the initial paragraph of the Granting
Clause is intended to create a security interest in the
Security in favor of the Trustee for the benefit of the
Holders of the Notes to secure the payment of principal and
interest on, and any other amounts owing in respect of, the
Notes; and after satisfaction of such obligations, amounts
received as a result of such Grant shall be available without
restriction to the Company."
2. No Other Amendments. Except for the amendments expressly set forth
and referred to in Section 1 above, the Indenture shall remain unchanged and in
full force and effect.
3. Representations and Warranties. The Company hereby represents and
warrants to the Trustee that (a) this Amendment has been duly authorized,
executed and delivered by the Company and (b) all of the representations and
warranties made by the Company in the Indenture are true and correct in all
material respects on and as of the date of this Amendment (except to the extent
that any such representations or warranties expressly referred to a specific
prior date). Any breach in any material respect by the Company of any of its
representations and warranties contained in this Section 3 shall be an Event of
Default for all purposes of the Indenture.
4. Ratification. The Company hereby ratifies and reaffirms each and
every term, covenant and condition set forth in the Indenture and all other
documents delivered by the Company in connection therewith, effective as of the
date hereof.
5. Waiver by the Company The Company hereby waives any claim, defense,
demand, action or suit of any kind or nature whatsoever against the Trustee
arising on or prior to the date hereof in connection with the Indenture or the
transactions contemplated thereunder.
6. Conditions to Effectiveness. This Amendment shall become effective,
upon the First Amendment Effective Date, subject to the receipt by the Trustee
of this Amendment, duly executed, completed and delivered by the Company and the
Trustee.
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED
ENTIRELY WITHIN SAID STATE.
8. Severability of Provisions. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. To the extent
permitted by applicable law, the Company hereby waives any provision of law that
renders any provision hereof prohibited or unenforceable in any respect.
9. Counterparts. This Amendment may be executed in any number of
several counterparts, all of which shall be deemed to constitute but one
original and shall be binding upon all parties, their successors and permitted
assigns.
10. Entire Agreement. The Indenture as amended by this Amendment embody
the entire agreement between the parties hereto relating to the subject matter
hereof and supersedes all prior agreements, representations and understandings,
if any, relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
by their respective officers thereunto duly authorized, as of the date first
above written.
NATIONAL VISION, INC.
By /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
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Title: Sr. Vice President and
General Counsel
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STATE STREET BANK AND TRUST COMPANY, as Trustee
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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