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Bank Waiver To The Credit Agreement

This is an actual contract between Cole National and Canadian Imperial Bank of Commerce.
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Sectors: Retail, Financial+Services
Governing Law: New York, View New York State Laws
Effective Date: May 09, 2003
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WAIVER (this "Waiver") dated as of May 9, 2003 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 COLE VISION CORPORATION, a Delaware corporation ("Cole Vision"), THINGS REMEMBERED, INC., a Delaware corporation ("Things Remembered"), and PEARLE, INC., a Delaware corporation ("Pearle"; Cole 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"), LEHMAN 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").


WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to the Credit Agreement; and

WHEREAS, the Borrowers have requested that violations of a certain covenant in the Credit Agreement be waived in the manner provided for in this Waiver and the Lenders are willing to waive such violations, but only upon the terms and subject to the conditions set forth herein;

NOW, THEREFORE, the parties hereto agree as follows:

SECTION 1. Defined Terms. Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

SECTION 2. Waiver. The Lenders hereby waive any violation of Section 8.1(a) of the Credit Agreement that has resulted as of the end of the fiscal quarters ended May 4, 2002, August 3, 2002, November 2, 2002 and February 1, 2003 or that may result as of the end of the fiscal quarter ending May 3, 2003, provided that such waiver shall automatically terminate and have no further force or effect if (a) it shall be determined that the Leverage Ratio exceeded 4.45 to 1.00 as of February 1, 2003 or (b) on any date during the period from February 2, 2003 through the date upon which such waiver shall expire pursuant to the immediately succeeding sentence, the ratio of (i) Total Indebtedness on such date to (ii) EBITDA for the twelve-month period most recently ended prior to such date for which financial statements shall have been delivered to each Lender pursuant to Section 7.1(c) of the Credit Agreement shall be determined to have exceeded, or shall exceed, as the case may be, 4.45 to 1.00. The waivers set forth in this Section shall expire and have no further force or effect on (x) May 17, 2003, if the Borrowers have not then furnished to each Lender CNG's Form 10-K for the fiscal year ended February 1, 2003 and CNG's restated Form lO-Q's for the fiscal quarters ended May 4,2002, August 3, 2002

and November 2, 2002, (y) May 23, 2003, if the Borrowers have not then furnished to each Lender the revised financial projections of the balance sheet, statement of income and statement of cash flows on a Consolidated basis of CNG and its Subsidiaries for fiscal years 2003 through 2006 (which shall be in reasonable detail and on a quarter-by-quarter basis for fiscal years 2003 and 2004 and on a year-by-year basis for fiscal years 2005 and 2006 and shall be accompanied by a certificate of a Responsible Officer with respect thereto of a type described in Section 7.2(c) of the Credit Agreement) or (z) June 30, 2003, otherwise. The Lenders acknowledge and agree that the changes in the reported financial condition of the Borrowers and their Subsidiaries as a result of the change in accounting treatment that occurred in the fiscal fourth quarter of 2002 for, among other things, sales of certain optical product warranties as a result of the re-audit of the financial statements of the Borrowers and the Subsidiaries for prior fiscal years by Deloitte & Touche, which have replaced Arthur Anderson as the Borrowers' auditors, do not result in a Material Adverse Effect.

SECTION 3. Representations and Warranties. After
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