Delaware
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001-38257
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46-4841717
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01
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Entry into a Material Definitive Agreement.
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Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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Item 7.01 |
Regulation FD.
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Item 9.01 |
Financial Statements and Exhibits.
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(d) |
Exhibits.
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10.1 |
Joinder and Amendment Agreement, dated as of October 9, 2018, including as Annex A thereto, the First Lien
Credit Agreement, dated as of March 13, 2014, as amended by the Joinder and Amendment Agreement dated as of May 29, 2015, Joinder Agreement dated as of February 3, 2017, Joinder and Amendment Agreement dated as of October 31, 2017
and Joinder and Amendment Agreement dated as of November 20, 2017, among Nautilus Acquisition Holdings, Inc., Nautilus Merger Sub, Inc., Vision Holdings Corp., National Vision, Inc., Goldman Sachs Bank USA, as administrative agent
and collateral agent, Morgan Stanley Bank, N.A., as the letter of credit issuer, and the lenders from time to time party thereto and the other parties thereto.
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National Vision Holdings, Inc.
|
||
Date: October 9, 2018
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By:
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/s/ Mitchell Goodman
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Name:
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Mitchell Goodman
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Title:
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Senior Vice President, General Counsel and Secretary
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1. |
Terms Generally. Other than as set
forth herein and in the Amended Credit Agreement, for all purposes under the Amended Credit Agreement and the other Credit Documents (including this Joinder and Amendment Agreement (unless the context dictates otherwise)), the New Term A
Loans shall have the same terms as the Initial Term Loans outstanding under the Credit Agreement immediately prior to the Effective Date (as amended as set forth in this Joinder and Amendment Agreement), but shall be designated and
treated as a different Class of Term Loans than the Initial Term Loans. All New Term A Loans funded shall (i) constitute Obligations and have all of the benefits thereof; (ii) have terms, rights, remedies, privileges and protections set
forth in the Amended Credit Agreement and each of the other Credit Documents; and (iii) be secured by the Liens granted (I) to the Collateral Agent for the benefit of the Secured Parties under the Security Documents and/or (II) to the
Secured Parties in their capacity as such (or to any of them). For the avoidance of doubt, the New Term A Loans shall rank equal in right of payment and of security with all other Term Loans under the Amended Credit Agreement.
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2. |
Credit Agreement Governs. Except as
set forth in this Agreement, the New Term A Loans shall otherwise be subject to the provisions of the Amended Credit Agreement and the other Credit Documents.
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3. |
Initial Drawing. The New Term A
Loans shall be denominated in Dollars and shall be made in a single drawing on the Effective Date. Upon the funding of the New Term A Loans on the Effective Date, the New Term A Loan Commitment of each New Term A Lender shall be $0.
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4. |
Interest Periods. The initial
Interest Period shall commence on the Effective Date and end on the last day of the Interest Period applicable to the existing Initial Term Loans as in effect immediately prior to the Effective Date. After the initial Interest Period
described above, the Interest Period shall be one month.
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5. |
Proposed Borrowing. This Agreement
represents a request by the Borrower to borrow New Term Loans comprising New Term A Loans from each New Term A Lender as set forth on the applicable Borrowing notice delivered by the Borrower under the Credit Agreement and pursuant to
this Agreement.
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6. |
New Term A Lenders. To the extent
not already a Lender, each New Term A Lender acknowledges and agrees that upon its execution of this Agreement that such New Term A Lender shall become a “Lender”, “Term Loan Lender” and a “Term A Lender” under, and for all purposes of,
the Amended Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder. For purposes of Section 12 and Section 13.5 of the Amended Credit Agreement, each Lead Arranger shall be deemed to be an
Agent.
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7. |
Administrative Agent Consent. The
Administrative Agent hereby consents to each New Term A Lender.
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1. |
Subject to the occurrence of (and concurrently with) the Effective Date, each of the New Term A Lenders, the Borrower and the
Administrative Agent hereby consents to the amendments to the Credit Agreement made pursuant to the terms of this Agreement.
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2. |
Effective as of the Effective Date, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same
manner as the following example:
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1. |
Representations and Warranties. The
Borrower hereby represents and warrants that:
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a. |
This Agreement has been duly authorized, executed and delivered by each Credit Party hereto and constitutes the legal, valid and
binding obligations of each such Credit Party enforceable against it in accordance with its terms, except that the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
subject to general principles of equity. The execution, delivery and performance by each Credit Party of this Agreement is within such Credit Party’s corporate powers, has been duly authorized by all necessary corporate or other
organizational action, and does not and will not (a) conflict with or contravene the terms of any Credit Party’s organizational documents, (b) result in any breach or contravention of, or the creation of any Lien under (other than under
the Credit Documents), or require any payment to be made under (i) any Contractual Requirement to which any Credit Party is a party or affecting any Credit Party or the properties of the Borrower or any of its Subsidiaries or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral award to which any Credit Party or its property is subject; or (c) violate any applicable law; except with respect to any conflict, breach or contravention or
payment or violation (but not creation of Liens) referred to in clauses (b) or (c), to the extent that such conflict, breach, contravention or payment or violation could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
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b. |
As of the Effective Date, the information included in any Beneficial Ownership Certification (as defined below) is true and correct in all respects.
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2. |
Borrower and Guarantor Certifications.
By its execution of this Agreement, each undersigned officer of the Borrower and the Guarantors party hereto, to the best of his or her knowledge, and the Borrower and Guarantors hereby certify that (the “Borrower and Guarantor Certifications”):
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a. |
no Default or Event of Default exists on the date hereof before or after giving effect to the New Term A Loans, the intended use of
proceeds of the New Term A Loans and the consummation of the other transactions contemplated by this Agreement; and
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b. |
the representations and warranties made by each Credit Party contained in the Credit Agreement, the Amended Credit Agreement or in the
other Credit Documents are true and correct in all material respects (provided that such representations and warranties which are
qualified by materiality, material adverse effect or similar language shall be true and correct in all respects) on and as of the date hereof with the same effect as though made on and as of the date hereof, except where such
representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (provided that such representations and warranties which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects) as of such earlier date.
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3. |
Effective Date Conditions. This
Agreement will become effective on the date (the “Effective Date”) on which each of the following conditions (the “Effective Date Conditions”) is satisfied:
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a. |
The Administrative Agent shall have received from the Borrower, each Guarantor and each New Term A Lender a counterpart of this
Agreement signed on behalf of such party;
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b. |
The Administrative Agent and each New Term A Lender shall have received the executed legal opinion of (i) Simpson Thacher &
Bartlett LLP, special New York counsel to the Credit Parties and (ii) Kilpatrick Townsend & Stockton LLP, special Georgia counsel to the Credit Parties. The Borrower, the other Credit Parties and the Administrative Agent hereby
instruct such counsel to deliver such legal opinions;
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c. |
The Borrower shall have paid all fees, reasonable costs and expenses (including, without limitation the reasonable fees, charges and
disbursements of Cahill Gordon & Reindel llp, counsel for the Lead Arrangers and the Administrative Agent) of the Lead
Arrangers and the Administrative Agent for which invoices have been presented prior to the Effective Date;
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d. |
The Administrative Agent shall have received good standing certificates (to the extent such concept exists) from the applicable
governmental authority (or confirmation from such governmental authority) of each Credit Party’s jurisdiction of incorporation, organization or formation and (I) (A) a certificate of the Credit Parties, dated the Effective Date,
substantially in the form of Exhibit E to the Credit Agreement, with appropriate insertions, of each Credit Party, executed by the President or any Vice President and the Secretary or any Assistant Secretary of each Credit Party, and
attaching the documents referred to in the following clause (B) and (B) (x) a copy of the resolutions, in form and substance satisfactory to the Administrative Agent, of the board of directors or other managers of each Credit Party (or a
duly authorized committee thereof) authorizing (i) the execution, delivery and performance of each Credit Document to which it is a party and (ii) in the case of the Borrower, the extensions of credit contemplated hereunder, (y) the
Certificate of Incorporation and By-Laws, Certificate of Formation and Operating Agreement or other comparable organizational documents, as applicable, of each Credit Party and (z) signature and incumbency certificates of the Authorized
Officers of each Credit Party executing the Credit Documents to which it is a party or (II) a certificate of Holdings on behalf of each Credit Party, dated the Effective Date and executed by an Authorized Officer of Holdings, certifying
that, except as otherwise indicated therein, there have been no amendments, supplements or modifications since the Closing Date to the documents delivered on the Closing Date pursuant to Sections 6.5(x) and 6.6 of the Credit Agreement, with such certificates pursuant to clauses (I) and (II)
above also certifying that after giving effect to the incurrence of the New Term A Loans and the use of proceeds therefrom, the Borrower has not incurred Indebtedness pursuant to Section 2.14 of the Credit Agreement in excess of the Maximum Incremental Facilities Amount, calculated in accordance with the terms of the Credit Agreement;
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e. |
The Administrative Agent shall have received a certificate from the Chief Executive Officer, President, the Chief Financial Officer,
the Treasurer, the Vice President-Finance, a Director, a Manager or any other senior financial officer of the Borrower to the effect that after giving effect to the transactions contemplated by this Agreement, Holdings on a consolidated
basis with its Restricted Subsidiaries is Solvent;
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f. |
At least five days prior to the Effective Date, if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the
“Beneficial Ownership Regulation”), then the Borrower shall deliver to the Administrative Agent and each Lender that so requests a certification
regarding beneficial ownership as required by the Beneficial Ownership Regulation (the “Beneficial Ownership Certification”) in relation to the
Borrower;
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g. |
The Administrative Agent, the Lead Arrangers and the New Term A Lenders shall have received all documentation and other information
reasonably requested by them at least three Business Days prior to the Effective Date that is required to be obtained or maintained by them by regulatory authorities under applicable “know your customer” and anti-money laundering or
terrorist financing rules and regulations, including the USA PATRIOT Act;
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h. |
The Borrower shall have delivered to the Administrative Agent a notice of Borrowing for each of the New Term A Loans in form and
substance reasonably satisfactory to the Administrative Agent;
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i. |
The Borrower shall have delivered a prepayment notice in respect to the prepayment of Initial Term Loans contemplated by the
transactions hereby in form and substance reasonably satisfactory to the Administrative Agent;
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j. |
The Administrative Agent shall have received prepayment of a portion of the Initial Term Loans in the aggregate principal amount
specified in the prepayment notice described above, plus all accrued and unpaid interest and other amounts thereon; and
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k. |
The Borrower and Guarantor Certifications are true and correct.
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4. |
Tax Forms. Delivered herewith (if
not already delivered previously) to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as the New Term A Lenders may be required to deliver to the
Administrative Agent pursuant to Section 5.4(d) and/or Section 5.4(e)
of the Credit Agreement.
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5. |
Tax Matters. Solely for purposes of FATCA, the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the New Term A Loans as not qualifying as
“grandfathered obligations” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
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6. |
Recordation of the New Term Loans.
Upon execution and delivery hereof, the Administrative Agent will record the New Term A Loans in the Register.
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7. |
Amendment, Modification and Waiver.
This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.
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8. |
Entire Agreement. This Agreement,
the Amended Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written
and verbal, among the parties or any of them with respect to the subject matter hereof.
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9. |
GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. Section 13.13 of the Amended Credit Agreement is hereby incorporated into this Agreement mutatis mutandis.
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10. |
Severability. Any term or provision
of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only as broad as would be enforceable.
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11. |
Counterparts. This Agreement may be
executed in counterparts (including by facsimile or other electronic transmission), each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
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12. |
WAIVER OF JURY TRIAL. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT LETTER OR THE PERFORMANCE OF SERVICES
HEREUNDER.
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13. |
Credit Document. On and after the
Effective Date, this Agreement shall constitute a “Credit Document” for all purposes of the Amended Credit Agreement and the other Credit Documents (it being understood that, for the avoidance of doubt, this Agreement may be amended or
waived solely by the parties hereto as set forth herein).
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14. |
Reaffirmation. Each Credit Party
hereby expressly acknowledges the terms of this Joinder and Amendment Agreement and reaffirms, as of the date hereof, (i) the covenants, guarantees, pledges, grants of Liens and agreements or other commitments contained in each Credit
Document to which it is a party, including, in each case, such covenants, guarantees, pledges, grants of Liens and agreements or other commitments as in effect immediately after giving effect to this Joinder and Amendment Agreement and
the transactions contemplated hereby, (ii) its guarantee of the Obligations (including, without limitation, the New Term A Loans) under each Guarantee, as applicable, (iii) its grant of Liens on the Collateral to secure the Obligations
(including, without limitation, the Obligations with respect to the New Term A Loans) pursuant to the Security Documents and (iv) agrees that after giving effect to this Agreement and the transactions contemplated hereby (A) each Credit
Document to which it is a party shall continue to be in full force and effect, (B) all guarantees, pledges, grants of Liens, covenants, agreements and other commitments by such Credit Party under the Credit Documents shall continue to be
in full force and effect and shall accrue to the benefit of the Secured Parties and shall not be affected, impaired or discharged hereby or by the transactions contemplated in this Joinder and Amendment Agreement and (C) it will prepay
(or cause the prepayment of) a portion of the Initial Term Loans as contemplated by the transactions hereby and accrued and unpaid interest and other amounts (including fees) thereon with the proceeds of the New Term A Loans and
cash-on-hand.
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15. |
Effect of Amendment. Except as
expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of, the Lenders or the Administrative Agent under the Credit Agreement,
the Amended Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Amended Credit
Agreement or any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. The parties hereto acknowledge and agree that the amendment of the Credit Agreement pursuant to
this Agreement and all other Credit Documents amended and/or executed and delivered in connection herewith shall not constitute a novation of the Credit Agreement and the other Credit Documents as in effect prior to the date hereof.
Nothing herein shall be deemed to establish a precedent for purposes of interpreting the provisions of the Credit Agreement or the Amended Credit Agreement or entitle any Credit Party to a consent to, or a waiver, amendment, modification
or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Amended Credit Agreement or any other Credit Document in similar or different circumstances. This Agreement
shall apply to and be effective only with respect to the provisions of the Credit Agreement, the Amended Credit Agreement and the other Credit Documents specifically referred to herein.
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NATIONAL VISION, INC.
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||
By:
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/s/ Patrick R. Moore
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Name: Patrick R. Moore
|
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Title: Senior Vice President and Chief Financial Officer
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NAUTILUS ACQUISITION HOLDINGS, INC.
|
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By:
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/s/ Patrick R. Moore
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Name: Patrick R. Moore
|
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Title: Senior Vice President and Chief Financial Officer
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OPTI-VISION FINANCE SERVICES, LLC
|
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By:
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/s/ Patrick R. Moore
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Name: Patrick R. Moore
|
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Title: Senior Vice President and Chief Financial Officer
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ARLINGTON CONTACT LENS SERVICE, INC.
|
||
By:
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/s/ Patrick R. Moore
|
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Name: Patrick R. Moore
|
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Title: Senior Vice President and Chief Financial Officer
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VC IV, LLC
|
||
By:
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/s/ Patrick R. Moore
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Name: Patrick R. Moore
|
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Title: Senior Vice President and Chief Financial Officer
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NVAL HEALTHCARE SYSTEMS, INC.
|
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By:
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/s/ Patrick R. Moore
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Name: Patrick R. Moore
|
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Title: Senior Vice President and Chief Financial Officer
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INTERNATIONAL VISION ASSOCIATES, LTD.
|
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By:
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/s/ Patrick R. Moore
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Name: Patrick R. Moore
|
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Title: Senior Vice President and Chief Financial Officer
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CITIBANK, N.A., as a New Term A Lender
|
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By:
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/s/ Alvaro De Velasco
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Name: Alvaro De Velasco
|
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Title: Vice President
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GOLDMAN SACHS BANK USA, as a New Term A Lender
|
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By:
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/s/ Ryan Durkin
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Name: Ryan Durkin
|
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Title: Authorized Signatory
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BANK OF AMERICA, N.A., as a New Term A Lender
|
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By:
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/s/ David H. Strickert
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Name: David H. Strickert
|
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Title: Managing Director
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BARCLAYS BANK PLC, as a New Term A Lender
|
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By:
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/s/ Regina Tarone
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Name: Regina Tarone
|
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Title: Managing Director
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WELLS FARGO BANK, N.A., as a New Term A Lender
|
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By:
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/s/ Maribelle Villaseñor
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Name: Maribelle Villaseñor
|
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Title: Director
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MORGAN STANLEY SENIOR FUNDING, INC., as a New Term A Lender
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By:
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/s/ Michael King
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Name: Michael King
|
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Title: Vice President
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MIZUHO BANK, LTD., as a New Term A Lender
|
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By:
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/s/ Raymond Ventura
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Name: Raymond Ventura
|
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Title: Managing Director
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UBS AG, STAMFORD BRANCH, as a New Term A Lender
|
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By:
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/s/ Darlene Arias
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Name: Darlene Arias
|
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Title: Director
|
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By:
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/s/ Houssem Daly
|
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Name: Houssem Daly
|
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Title: Associate Director
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MACQUARIE CAPITAL FUNDING LLC, as a New Term A Lender
|
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By:
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/s/ Lisa Grushkin
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Name: Lisa Grushkin
|
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Title: Authorized Signatory
|
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By:
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/s/ Ayesha Farooqi
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Name: Ayesha Farooqi
|
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Title: Authorized Signatory
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JEFFERIES FINANCE LLC, as a New Term A Lender
|
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By:
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/s/ Brian Buoye
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Name: Brian Buoye
|
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Title: Managing Director
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Agreed and Consented to by:
|
||
GOLDMAN SACHS BANK USA, as Administrative Agent and Collateral
Agent
|
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By:
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/s/ Elizabeth Fischer
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Name: Elizabeth Fischer
|
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Title: Authorized Signatory
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New Term A Lender
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New Term A Loan Commitments
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Citibank, N.A.
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$51,750,000
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Goldman Sachs Bank USA
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$42,000,000
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Bank of America, N.A.
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$38,000,000
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Barclays Bank PLC
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$18,000,000
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Wells Fargo Bank, N.A.
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$16,000,000
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Morgan Stanley Senior Funding, Inc.
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$15,000,000
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Mizuho Bank, Ltd.
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$8,000,000
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UBS AG, Stamford Branch
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$5,000,000
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Macquarie Capital Funding LLC
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$4,250,000
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Jefferies Finance LLC
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$2,000,000
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Total:
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$200,000,000
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Unofficial Conformed Version11
Page
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Section 1.
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Definitions
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2
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1.1
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Defined Terms
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2
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1.2
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Other Interpretive Provisions
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1.3
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Accounting Terms
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1.4
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Rounding
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1.5
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References to Agreements Laws, Etc.
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1.6
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Exchange Rates
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1.7
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Rates
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1.8
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Times of Day
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1.9
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Timing of Payment or Performance
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1.10
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Certifications
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1.11
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Compliance with Certain Sections
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1.12
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Pro Forma and Other Calculations
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Section 2.
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Amount and Terms of Credit.
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2.1
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Commitments.
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2.2
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Minimum Amount of Each Borrowing;
Maximum Number of Borrowings
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2.3
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Notice of Borrowing
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2.4
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Disbursement of Funds.
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2.5
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Repayment of Loans; Evidence of Debt.
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2.6
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Conversions and Continuations.
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2.7
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Pro Rata Borrowings
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2.8
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Interest.
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2.9
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Interest Periods
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2.10
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Increased Costs, Illegality, Etc.
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2.11
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Compensation
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2.12
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Change of Lending Office
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2.13
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Notice of Certain Costs
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2.14
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Incremental Facilities
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2.15
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Permitted Debt Exchanges
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2.16
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Defaulting Lenders
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Section 3.
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Letters of Credit
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3.1
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Letters of Credit
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3.2
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Letter of Credit Requests
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3.3
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Letter of Credit Participations
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3.4
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Agreement to Repay Letter of Credit
Drawings
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3.5
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Increased Costs
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3.6
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New or Successor Letter of Credit
Issuer
|
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3.7
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Role of Letter of Credit Issuer
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3.8
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Cash Collateral
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3.9
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Applicability of ISP and UCP
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3.10
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Conflict with Issuer Documents
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3.11
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Letters of Credit Issued for Restricted
Subsidiaries
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Page
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3.12
|
Provisions Related to Extended
Revolving Credit Commitments
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Section 4.
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Fees
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4.1
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Fees
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4.2
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Voluntary Reduction of Revolving Credit
Commitments
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4.3
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Mandatory Termination of Commitments
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Section 5.
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Payments
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5.1
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Voluntary Prepayments
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5.2
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Mandatory Prepayments
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5.3
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Method and Place of Payment
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5.4
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Net Payments
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5.5
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Computations of Interest and Fees
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5.6
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Limit on Rate of Interest
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Section 6.
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Conditions Precedent to Initial
Borrowing
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6.1
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Credit Documents
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6.2
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Collateral
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6.3
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Legal Opinions
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6.4
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Equity Investments
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6.5
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Closing Certificates
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6.6
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Authorization of Proceedings of
Holdings, Merger Sub, NVI and the Company; Corporate Documents
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6.7
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Fees
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6.8
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Representations and Warranties
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6.9
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Solvency Certificate
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6.10
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Acquisition
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|
6.11
|
Patriot Act
|
|
|
6.12
|
Pro Forma Balance Sheet
|
|
|
6.13
|
Financial Statements
|
|
|
6.14
|
No Company Material Adverse Effect
|
|
|
6.15
|
Refinancing
|
|
|
6.16
|
Notice of Term Loan Borrowing
|
|
|
Section 7.
|
Conditions Precedent to All Credit
Events after the Closing Date
|
|
|
7.1
|
No Default; Representations and
Warranties
|
|
|
7.2
|
Notice of Borrowing; Letter of Credit
Request
|
|
|
Section 8.
|
Representations and Warranties
|
|
|
8.1
|
Corporate Status
|
|
|
8.2
|
Corporate Power and Authority
|
|
|
8.3
|
No Violation
|
|
|
8.4
|
Litigation
|
|
|
8.5
|
Margin Regulations
|
|
|
8.6
|
Governmental Approvals
|
|
|
8.7
|
Investment Company Act
|
|
Page
|
|||
8.8
|
True and Complete Disclosure
|
|
|
8.9
|
Financial Condition; Financial
Statements
|
|
|
8.10
|
Compliance with Laws; No Default
|
|
|
8.11
|
Tax Matters
|
|
|
8.12
|
Compliance with ERISA
|
|
|
8.13
|
Subsidiaries
|
|
|
8.14
|
Intellectual Property
|
|
|
8.15
|
Environmental Laws
|
|
|
8.16
|
Properties
|
|
|
8.17
|
Solvency
|
|
|
8.18
|
Patriot Act
|
|
|
Section 9.
|
Affirmative Covenants.
|
|
|
9.1
|
Information Covenants
|
|
|
9.2
|
Books, Records, and Inspections
|
|
|
9.3
|
Maintenance of Insurance
|
|
|
9.4
|
Payment of Taxes
|
|
|
9.5
|
Preservation of Existence; Consolidated
Corporate Franchises
|
|
|
9.6
|
Compliance with Statutes, Regulations,
Etc.
|
|
|
9.7
|
ERISA
|
|
|
9.8
|
Maintenance of Properties
|
|
|
9.9
|
Transactions with Affiliates
|
|
|
9.10
|
End of Fiscal Years
|
|
|
9.11
|
Additional Guarantors and Grantors
|
|
|
9.12
|
Pledge of Additional Stock and Evidence
of Indebtedness
|
|
|
9.13
|
Use of Proceeds
|
|
|
9.14
|
Further Assurances
|
|
|
9.15
|
Maintenance of Ratings
|
|
|
9.16
|
Lines of Business
|
|
|
Section 10.
|
Negative Covenants
|
|
|
10.1
|
Limitation on Indebtedness
|
|
|
10.2
|
Limitation on Liens
|
|
|
10.3
|
Limitation on Fundamental Changes
|
|
|
10.4
|
Limitation on Sale of Assets
|
|
|
10.5
|
Limitation on Restricted Payments
|
|
|
10.6
|
Limitation on Subsidiary Distributions
|
|
|
10.7
|
Consolidated First Lien Secured Debt to
Consolidated EBITDA Ratio
|
|
|
10.8
|
Term A Loan Financial Covenant
|
155
|
|
Section 11.
|
Events of Default
|
|
|
11.1
|
Payments
|
|
|
11.2
|
Representations, Etc.
|
|
|
11.3
|
Covenants
|
|
|
11.4
|
Default Under Other Agreements
|
|
|
11.5
|
Bankruptcy, Etc.
|
|
|
11.6
|
ERISA
|
|
Page
|
|||
11.7
|
Guarantee
|
|
|
11.8
|
Pledge Agreement
|
|
|
11.9
|
Security Agreement
|
|
|
11.10
|
Judgments
|
|
|
11.11
|
Change of Control
|
|
|
11.12
|
Remedies Upon Event of Default
|
|
|
11.13
|
Application of Proceeds
|
|
|
11.14
|
Equity Cure
|
|
|
Section 12.
|
The Agents
|
|
|
12.1
|
Appointment
|
|
|
12.2
|
Delegation of Duties
|
|
|
12.3
|
Exculpatory Provisions
|
|
|
12.4
|
Reliance by Agents
|
|
|
12.5
|
Notice of Default
|
|
|
12.6
|
Non-Reliance on Administrative Agent,
Collateral Agent, and Other Lenders
|
|
|
12.7
|
Indemnification
|
|
|
12.8
|
Agents in Their Individual Capacities
|
|
|
12.9
|
Successor Agents
|
|
|
12.10
|
Withholding Tax
|
|
|
12.11
|
Agents Under Security Documents and
Guarantee
|
|
|
12.12
|
Right to Realize on Collateral and
Enforce Guarantee
|
|
|
12.13
|
Intercreditor Agreement Governs
|
|
|
Section 13.
|
Miscellaneous
|
|
|
13.1
|
Amendments, Waivers, and Releases
|
|
|
13.2
|
Notices
|
|
|
13.3
|
No Waiver; Cumulative Remedies
|
|
|
13.4
|
Survival of Representations and
Warranties
|
|
|
13.5
|
Payment of Expenses; Indemnification
|
|
|
13.6
|
Successors and Assigns; Participations
and Assignments
|
|
|
13.7
|
Replacements of Lenders Under Certain
Circumstances
|
|
|
13.8
|
Adjustments; Set-off
|
|
|
13.9
|
Counterparts
|
|
|
13.10
|
Severability
|
|
|
13.11
|
Integration
|
|
|
13.12
|
GOVERNING LAW
|
|
|
13.13
|
Submission to Jurisdiction; Waivers
|
|
|
13.14
|
Acknowledgments
|
|
|
13.15
|
WAIVERS OF JURY TRIAL
|
|
|
13.16
|
Confidentiality
|
|
|
13.17
|
Direct Website Communications
|
|
|
13.18
|
USA PATRIOT Act
|
|
|
13.19
|
[Reserved]
|
|
|
13.20
|
Payments Set Aside
|
|
|
13.21
|
No Fiduciary Duty
|
|
SCHEDULES
|
|
Schedule 1.1(a)
|
Mortgaged Properties
|
Schedule 1.1(b)
|
Commitments of Lenders
|
Schedule 8.13
|
Subsidiaries
|
Schedule 8.15
|
Environmental
|
Schedule 9.14
|
Post-Closing Actions
|
Schedule 10.1
|
Closing Date Indebtedness
|
Schedule 10.2
|
Closing Date Liens
|
Schedule 10.5
|
Closing Date Investments
|
Schedule 13.2
|
Notice Addresses
|
EXHIBITS
|
|
Exhibit A
|
Form of Joinder Agreement
|
Exhibit B
|
Form of Guarantee
|
Exhibit C
|
Form of Pledge Agreement
|
Exhibit D
|
Form of Security Agreement
|
Exhibit E
|
Form of Credit Party Closing Certificate
|
Exhibit F
|
Form of Assignment and Acceptance
|
Exhibit G-1
|
Form of Promissory Note (Initial Term Loans)
|
Exhibit G-2
|
Form of Promissory Note (Revolving Credit Loans)
|
Exhibit H
|
Form of First Lien Intercreditor Agreement
|
Exhibit I
|
Form of Second Lien Intercreditor Agreement
|
Exhibit J-1
|
Form of Non-Bank Tax Certificate
|
|
(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
Exhibit J-2
|
Form of Non-Bank Tax Certificate
|
|
(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
|
Exhibit J-3
|
Form of Non-Bank Tax Certificate
|
|
(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
Exhibit J-4
|
Form of Non-Bank Tax Certificate
|
|
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
|
Exhibit K
|
Form of Notice of Borrowing or Continuation or Conversion
|
Exhibit L
|
Form of Letter of Credit Request
|
Exhibit M-1
|
Form of Hedge Bank Designation
|
Exhibit M-2
|
Form of Cash Management Bank Designation
|
Pricing Level
|
Moody’s Rating
|
LIBOR Loans
|
ABR Loans
|
I
|
Ba3 (stable) or better
|
2.50%
|
1.50%
|
II
|
Rating which is lower than Ba3 (stable)
|
2.75%
|
1.75%
|
Pricing
Level |
Consolidated First
Lien Secured Debt
to Consolidated
EBITDA Ratio
|
Letter of
Credit Fees |
ABR Rate Revolving
Credit Loans
|
LIBOR Rate
Revolving Credit
Loans |
I
|
> 4.25:1.00
|
3.00%
|
2.00%
|
3.00%
|
II
|
< 4.25:1.00 but > 3.75:1.00
|
2.75%
|
1.75%
|
2.75%
|
III
|
< 3.75:1.00
|
2.50%
|
1.50%
|
2.50%
|
Pricing Level
|
Consolidated
Total Debt to
Consolidated
EBITDA Ratio
|
Ratings
|
LIBOR Loans
|
ABR Loans
|
I
|
<
2.00:1.00
|
Either
(x) Ba2 (stable) or better or (y) BB (stable) or better
|
1.25%
|
0.25%
|
II
|
≥
2.00:1.00
but < 2.50:1.00 |
BB-
(stable) on S&P Rating
|
1.50%
|
0.50%
|
III
|
≥
2.50:1.00
|
N/A
|
1.75%
|
0.75%
|
Status
|
Commitment Fee Rate
|
Level I Status
|
0.50%
|
Level II Status
|
0.375%
|
Term A Loan Repayment Date
|
Term A Loan Repayment Amount
|
March
29, 2019
|
$1,250,000
|
June
28, 2019
|
$1,250,000
|
September
27, 2019
|
$1,250,000
|
December
27, 2019
|
$1,250,000
|
March
27, 2020
|
$1,250,000
|
June
26, 2020
|
$1,250,000
|
September
25, 2020
|
$1,250,000
|
January
1, 2021
|
$1,250,000
|
April
2, 2021
|
$1,250,000
|
July
2, 2021
|
$1,250,000
|
October
1, 2021
|
$1,250,000
|
December
31, 2021
|
$1,250,000
|
April
1, 2022
|
$2,500,000
|
July
1, 2022
|
$2,500,000
|
September
30, 2022
|
$2,500,000
|
December
30, 2022
|
$2,500,000
|
March
31, 2023
|
$2,500,000
|
June
30, 2023
|
$2,500,000
|
September
29, 2023
|
$2,500,000
|
Term
A Loan Maturity Date
|
Remaining
outstanding principal amount of Term A Loans
|
(A)
|
No Defaulting Lender shall be entitled to receive any fee payable under Section 4 for any period during which that Lender is a Defaulting Lender (and the Borrower shall not
be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
|
(B)
|
Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for
any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 3.8.
|
(C)
|
With respect to any Letter of Credit Fee not required to be paid to any
Defaulting Lender pursuant to clause (A) or (B) above, the Borrower
shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Letter of Credit Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Letter of Credit’s Fronting Exposure to such Defaulting
Lender, and (z) not be required to pay the remaining amount of any such fee.
|
(A) |
any Lender that is a “United States person” within the
meaning of Section 7701(a)(30) of the Code (a “U.S. Lender”) shall deliver to the Borrower and the Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information
prescribed by applicable laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is
subject to backup withholding or information reporting requirements;
|
(B) |
each Non-U.S. Lender that is entitled under the Code or
any applicable treaty to an exemption from or reduction of U.S. federal withholding tax with respect to any payments hereunder or under any other Credit Document shall deliver to the Borrower and the Administrative Agent (in
such number of copies as shall be requested by the recipient) whichever of the following is applicable:
|
(C) |
if a payment made to a Lender under any Credit Document
would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the
Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent
such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be
necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if
any, to deduct and withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the date of this Agreement; and
|
(D) |
If the Administrative Agent is a “United States person”
(as defined in Section 7701(a)(30) of the Code), it shall provide the Borrower with two duly completed original copies of Internal Revenue Service Form W-9. If the Administrative Agent is not a “United States person” (as
defined in Section 7701(a)(3) of the Code), it shall provide applicable Form W-8 (together with required accompanying documentation) with respect to payments to be received by it on behalf of the Lenders.
|
(A) |
it shall not have any right to (i) attend or participate in (including, in
each case, by telephone) any meeting (including “Lender only” meetings) or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present,
(ii)receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders or any other material which is “Lender only”,
except to the extent such information or materials have been made available to the Borrower or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative
notices in respect of its Loans required to be delivered to Lenders pursuant to Section 2) or receive any advice of counsel to the Administrative Agent or (iii) make any challenge to the Administrative Agent’s or any other Lender’s attorney-client
privilege on the basis of its status as a Lender; and
|
(B) |
except with respect to any amendment, modification, waiver, consent or other
action (I) in Section 13.1 requiring
the consent of all Lenders, all Lenders directly and adversely affected or specifically such Lender, (II) that alters an Affiliated Lender’s pro rata share of any payments given to all Lenders, or (III) affects the
Affiliated Lender (in its capacity as a Lender) in a manner that is disproportionate to the effect on any Lender in the same Class, the Loans held by an Affiliated Lender shall be disregarded in both the numerator and
denominator in the calculation of any Lender vote (and, in the case of a plan of reorganization that does not affect the Affiliated Lender in a manner that is materially adverse to such Affiliated Lender relative to
other Lenders, shall be deemed to have voted its interest in the Term Loans in the same proportion as the other Lenders) (and shall be deemed to have been voted in the same percentage as all other applicable Lenders
voted if necessary to give legal effect to this paragraph); and
|
NAUTILUS ACQUISITION HOLDINGS, INC.
as Holdings |
||
By:
|
||
Name:
|
||
Title:
|
NAUTILUS MERGER SUB, LLC,
as the Initial Borrower |
||
By:
|
||
Name:
|
||
Title:
|
VISION HOLDING CORP.,
as the Surviving Borrower |
||
By:
|
||
Name:
|
||
Title:
|
GOLDMAN SACHS BANK USA,
as Administrative Agent and Swingline Lender |
||
By:
|
||
Name:
|
||
Title:
|
MORGAN STANLEY BANK N.A.,
as Letter of Credit Issuer and a Lender |
||
By:
|
||
Name:
|
||
Title:
|
[ ],
as Lender |
||
By:
|
||
Name:
|
||
Title:
|