Exhibit 10.18
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
made and entered into as of December 21, 2001, but effective as of June 30,
2001, 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 as of May 30, 2001 (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 adding the following new language to the end of Section 6.6
of the Loan Agreement:
Unless prohibited by Applicable Law, Borrower hereby irrevocably
authorizes Lender to execute and file in any jurisdiction any
financing statements or amendments thereto on Borrower's behalf,
including, without limitation, financing statements that indicate
the Collateral (i) as all assets or all personal property of
Borrower or words of similar effect, or (ii) as being of an equal or
lesser scope, or with greater or lesser detail, than as set forth in
this SECTION 6. Borrower also hereby ratifies its authorization for
Lender to have filed in any jurisdiction any like financing
statements or amendments thereto if filed prior to the date hereof.
(b) By deleting Sections 7.2.5 and 7.2.6 of the Loan Agreement in
their entirety and by substituting in lieu thereof the following:
7.2.5. Cash Management/Maintenance of Dominion Account.
Borrower shall maintain with Bank a Deposit Account (the "Collection
Account") into which all Payment Items (except as provided in
SECTION 7.2.6 hereof) received by Borrower, including Payment Items
received in the lockboxes maintained by Borrower with Bank and First
Union National Bank, shall be deposited on a daily basis. All of the
funds contained in the Collection Account shall be subject to a Lien
in favor of Lender. Prior to the occurrence of a Cash Control Event,
Borrower may use the funds in the Collection Account for the conduct
of its business operations and in a manner not inconsistent with the
provisions of this Agreement. Borrower and Bank shall enter into a
Dominion Account Agreement with Lender with respect to the
Collection Account pursuant to which Bank shall agree that, from and
after the occurrence of a Cash Control Event, Bank shall immediately
transfer to the Payment Account all monies deposited into the
Collection Account (which, from and after the occurrence of a Cash
Control Event, shall be a Dominion Account) and to waive any offset
rights against funds deposited into such Dominion Account, except
offset rights in respect of charges incurred in the administration
of such Dominion Account. Upon and after the occurrence of a Cash
Control Event, (i) Borrower shall cease to have access to funds in
the Collection Account and (ii) the Collection Account shall
constitute a Dominion Account. Lender does not assume any
responsibility to Borrower for any Dominion Account, including any
claim of accord and satisfaction or release with respect to deposits
accepted by any bank thereunder.
7.2.6. Collection of Accounts and Proceeds of Collateral. To
expedite collection, Borrower shall endeavor in the first instance
to make collection of Borrower's Accounts for Lender. All Payment
Items received by Borrower in respect of its Accounts, together with
the proceeds of any other Collateral, shall be held by Borrower as
trustee of an express trust for Lender's benefit and, from and after
the occurrence of a Cash Control Event, Borrower shall immediately
deposit same in kind in the Dominion Account, except that (i)
Borrower may deposit Payment Items received in its retail stores in
such stores' local Deposit Accounts, provided that all amounts in
the local Deposit Accounts of such stores are transferred on a daily
basis to the Payment Account and (ii) unless a Default or Event of
Default then exists, Borrower may retain $500 for each of its retail
store locations. Lender retains the right at all times that a
Default or an Event of Default exists to notify Account Debtors of
Borrower that Accounts have been assigned to Lender and to collect
Accounts directly in its own
name and to charge to Borrower the collection costs and expenses
incurred by Lender, including reasonable attorneys' fees.
(c) By deleting Schedule 8.1.1 to the Loan Agreement in its entirety
and by substituting in lieu thereof Schedule 8.1.1 hereto.
(d) By deleting Section 9.1.12 of the Loan Agreement in its entirety
and by substituting in lieu thereof the following:
9.1.12. Post-Closing Obligations.
(i) On or before December 31, 2001, exercise a good faith
effort to deliver to Lender a duly executed amendment to the
Wal-Mart Agreement memorializing the terms set forth in the letter
of intent dated May 14, 2001 between Borrower and Wal-Mart;
(ii) On or before December 31, 2001, deliver to Lender good
standing certificates for Borrower issued by the Secretary of State
or other appropriate official of each state or jurisdiction denoted
with an asterisk on SCHEDULE 8.1.1 hereto; and
(iii) On or before May 30, 2002, deliver to Lender good
standing certificates for Borrower issued by the Secretary of State
or other appropriate official of the jurisdiction of its
organization and each state or jurisdiction listed on SCHEDULE 8.1.1
hereto and all other states and jurisdictions in which the failure
of Borrower to be so qualified would have a Material Adverse Effect,
each certificate reflecting Borrower's correct corporate name as
registered with the Secretary of State or other appropriate official
of the jurisdiction of its organization.
(e) By deleting Section 9.2.1 of the Loan Agreement in its entirety
and by substituting in lieu thereof the following:
9.2.1. Fundamental Changes. Merge, reorganize, consolidate or
amalgamate with any Person, or liquidate, wind up its affairs or
dissolve itself, except for (i) mergers or consolidations of any
Subsidiary with Borrower or the liquidation or dissolution of any
Subsidiary, provided, however, that no Lien (except Permitted Liens)
exists upon any of such Subsidiary's Property, income or profits,
whether now owned or hereafter acquired, or (ii) mergers or
consolidations of any Subsidiary with another Subsidiary or the
liquidation or dissolution of any Subsidiary into another
Subsidiary; change Borrower's name or conduct business under any new
fictitious name; or change Borrower's FEIN.
(f) By deleting Schedule 9.2.5 to the to the Loan Agreement in its
entirety and by substituting in lieu thereof Schedule 9.2.5 hereto.
(g) By deleting Sections 9.3.1 and 9.3.2 of the Loan Agreement in
their entirety and by substituting in lieu thereof the following:
9.3.1. Minimum Consolidated EBITDA. Achieve Consolidated EBITDA of
not less than the amount shown below for the period corresponding
thereto:
Period Amount
------ ------
For the 4 Reporting Periods $ 6,000,000
ending September 29, 2001
For the 7 Reporting Periods $11,000,000
ending December 29, 2001
For the 10 Reporting Periods $17,000,000
ending March 30, 2002
For the 4 Fiscal Quarters $19,600,000
ending June 29, 2002 and
the 4-Fiscal Quarter
period ending on the last
day of each Fiscal Quarter
thereafter
9.3.2. Minimum Consolidated Fixed Charge Coverage Ratio.
Maintain a Consolidated Fixed Charge Coverage Ratio as of the last
day of the Reporting Period ending on or about June 30 and December
31 of each year that is not less than 1.0 to 1.0, commencing with
the last day of the Reporting Period ending on or about December 31,
2001, provided, however, the Consolidated Fixed Charge Coverage
Ratio as of the last day of the Reporting Period ending on or about
December 31, 2001 shall be measured for the 7-month period of
Borrower then ending.
(h) By adding the following definitions to Appendix A to the Loan
Agreement in proper alphabetical sequence:
Cash Control Event - Lender's written notification to Borrower
that Lender has in its sole and absolute discretion elected to
require dominion over Borrower's funds.
Collection Account - as defined in SECTION 7.2.5 of the
Agreement.
(i) By deleting clause (ii)(b) of the definition of Eligible Account
in Appendix A to the Loan Agreement and by substituting in lieu thereof the
following:
(b) if it is to be processed under Premis, it is outstanding
(1) more than 60 days after the date of service or sale of goods,
during the period commencing on the Closing Date and ending on
September 30, 2002, or (2) more than 30 days after the date of
service or sale of goods, at all times after September 30, 2002;
3. CONSENT TO DISSOLUTION OF CERTAIN SUBSIDIARIES. Lender hereby consents
to the dissolution of New West Eyeworks, Inc., a Delaware corporation,
Frame-n-Lens Optical, Inc., a California corporation, and Family Vision Centers,
Inc., a Delaware corporation, provided, however, that at the time of
dissolution, no Lien (except Permitted Liens) exists upon any of such
Subsidiaries' Property, income or profits, whether now owned or hereafter
acquired.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. EXPENSES OF LENDER. 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.
10. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be effective upon
acceptance by Lender in Atlanta, Georgia, notice of which acceptance Borrower
hereby waives, whereupon the same shall be governed by and construed in
accordance with the internal laws of the State of Georgia.
11. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers on the
date first written above.
ATTEST: NATIONAL VISION, INC.
("Borrower")
_______________________________ By: ___________________________________
XXXXXXXX XXXXXXX, Secretary XXXXX X. XXXXXXXX, Senior Vice President
ACCEPTED IN ATLANTA, GEORGIA:
FLEET CAPITAL CORPORATION
("Lender")
By: ___________________________________
XXXXX X. XXXX, Vice President
SCHEDULE 8.1.1
JURISDICTIONS IN WHICH BORROWER
AND EACH SUBSIDIARY IS
AUTHORIZED TO DO BUSINESS
Name of Entity Jurisdictions
-------------- -------------
National Vision, Inc. Alabama, Alaska, Arizona,
California, Colorado,
Connecticut, Florida, Hawaii,
Kansas*, Kentucky, Louisiana,
Maryland*, Massachusetts*,
Michigan, Minnesota, Montana,
Nevada, New Hampshire, New
Jersey, New Mexico*, New York,
North Carolina, North Dakota,
Oregon*, Pennsylvania, South
Carolina, South Dakota,
Tennessee*, Texas, Virginia*,
Washington*, West Virginia* and
Wyoming.
Midwest Vision, Inc. None.
Frame-n-Lens Optical, Inc. None.
Family Vision Centers, Inc. None.
Vision Administrators, Inc. None.
ProCare Eye Exam, Inc. None.
New West Eyeworks, Inc. None.
Vista Eyecare Network, LLC None.
NVAL Healthcare Systems, Inc. None.
NVAL Visioncare Systems None.
of California, Inc.
NVAL Visioncare Systems None.
of North Carolina, Inc.
Vista Optical Express, Inc. None.
Alexis Holding Company, Inc. None.
International Vision Associates, Ltd. None.
Mexican Vision Associates, S.A. de C.V. None.
* Not currently authorized; to be authorized on or before December 31,
2001.
Mexican Vision Associates Operadora, None.
s. de X.X. de C.V.
Mexican Vision Associates None.
Servicios, s. de X.X. de C.V.
CECIVA B.V. None.
International Vision Associates None.
(Netherlands) B.V.
Czech Vision Associates, s.r.o. None.
Slovak Vision Associates, s.r.o. None.
SCHEDULE 9.2.5
PERMITTED LIENS
Secured Party Nature of Lien
------------- --------------
Xxxxxxx Xxxxx and Associates, Inc., with Regions Bank Computer Equipment (hardware and software) as
as assignee specified in Master Equipment Lease
------------------------------------------------------- ------------------------------------------------------
Xxxxxxx Xxxxx and Associates, Inc., with Regions Bank All hardware, software and peripherals as specified in
as assignee Master Equipment Lease
------------------------------------------------------- ------------------------------------------------------
IBM Credit Corporation Certain IBM Equipment as referenced on IBM Slip
#222272
------------------------------------------------------- ------------------------------------------------------
IBM Credit Corporation Certain IBM Equipment as referenced on IBM Slip
#303254
------------------------------------------------------- ------------------------------------------------------
Xxxxxxx Xxxxx and Associates, Inc., with Regions Bank IBM 9406/8051 to 8052 Base Storage Expansion Unit and
as assignee IBM 9406/6907 4.19GB Disk Unit
------------------------------------------------------- ------------------------------------------------------
Wachovia Leasing Corporation Certain Leased Equipment specified in Master Lease
Agreement
------------------------------------------------------- ------------------------------------------------------
First National Bank of West Point MB9600-Briot Complete Finishing Lab and related
Equipment
------------------------------------------------------- ------------------------------------------------------
KeyCorp Leasing, a division of Key Corporate Capital Certain Leased Equipment listed on that certain UCC
Inc. financing statement bearing file number 01057032, on
record with the Secretary of State of Arizona, and
that certain UCC financing statement bearing file
number 459720, on record with the Secretary of State
of Oregon, each naming New West Eyeworks, Inc. as
debtor.
------------------------------------------------------- ------------------------------------------------------
CONSENT AND REAFFIRMATION
The undersigned guarantors of the Obligations of Borrower at any time
owing to Lender hereby: (i) acknowledge receipt of a copy of the foregoing First
Amendment to Loan and Security Agreement; (ii) consent to Borrower's execution
and delivery thereof; (iii) agree to be bound thereby; and (iv) affirm that
nothing contained therein shall modify in any respect whatsoever its respective
guaranty of the Obligations and reaffirm 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.
ATTEST: INTERNATIONAL VISION ASSOCIATES, LTD.
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
ATTEST: NVAL HEALTHCARE SYSTEMS, INC.
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
ATTEST: VISTA OPTICAL EXPRESS, INC.
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
ATTEST: FRAME-N-LENS OPTICAL, INC.
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
ATTEST: MIDWEST VISION, INC.
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
[Signatures continued on following page]
ATTEST: NEW WEST EYEWORKS, INC.
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
ATTEST: FAMILY VISION CENTERS, INC.
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
ATTEST: VISION ADMINISTRATORS, INC.
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
ATTEST: ALEXIS HOLDING COMPANY, INC.
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
ATTEST: VISTA EYECARE NETWORK, LLC
__________________________________ By: _____________________________________
XXXXXXXX XXXXXXX, Secretary XXXXXXXX XXXXXXX, Vice President
