EXHIBIT 10.51
EIGHTH LOAN MODIFICATION AGREEMENT
THIS EIGHTH LOAN MODIFICATION AGREEMENT (the "Agreement") is
made as of the 23rd day of June, 2004, by and among:
CADLEROCK JOINT VENTURE, L. P. ("CadleRock"), an Ohio limited
partnership with a principal place of business at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxx Xxxxx, XX 00000-0000;
SIGHT RESOURCE CORPORATION (hereinafter, "Sight Resource"), a
Delaware corporation with a principal place of business at 0000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000;
CAMBRIDGE EYE ASSOCIATES, INC. (hereinafter, "Cambridge Eye"),
a Delaware corporation with a principal place of business at Xxx Xxxxxxxx
Xxxxxx, Xxxx 0X, Xxxxxx, XX 00000
XXXXXXX VISION WORLD, INC. (hereinafter, "Xxxxxxx Vision"), a
Delaware corporation with a principal place of business at Xxx Xxxxxxxx Xxxxxx,
Xxxx 0X, Xxxxxx, XX 00000;
X. X. XXXXX OPTICIANS, INC. (hereinafter, "X. X. Xxxxx"), a
Delaware corporation with a principal place of business at 0000 Xxxx 00xx
Xxxxxx, Xxxxxxxxx, XX 00000-0000;
EYEGLASS EMPORIUM, INC. (hereinafter, "Eyeglass Emporium"), a
Delaware corporation with a principal place of business at c/o Sight Resource
Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000;
KENT OPTICAL COMPANY f/k/a KENT ACQUISITION CORP.
(hereinafter, "Kent Optical"), a Delaware corporation with a principal place of
business at c/o Sight Resource Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX
00000;
SHAWNEE OPTICAL, INC. (hereinafter, "Shawnee Optical"), a
Delaware corporation with a principal place of business at c/o Sight Resource
Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000;
VISION PLAZA CORP. (hereinafter, "Vision Plaza"), a Delaware
corporation with a principal place of business at 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxx 00X, Xxxxxxxx, XX 00000-0000;
KENT OPTOMETRIC PROVIDERS, INC., f/k/a KENT OPTOMETRIC
PROVIDERS, P.C. (hereinafter, "Kent Optometric"), a Michigan corporation with a
principal place of business at c/o Sight Resource Corporation, 0000 Xxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000;
Hereinafter, Sight Resource, Cambridge Eye, Xxxxxxx Vision, X.
X. Xxxxx, Eyeglass Emporium, Kent Optical, Shawnee Optical, Vision Plaza, and
Kent Optometric and shall be referred to individually and collectively, jointly,
and severally, as the "Obligors" or the "Obligor."
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R E C I T A L S
---------------
A. Reference is hereby made to certain loan arrangements (hereinafter,
the "Loan Arrangements") entered into by and between Sight Resource, Cambridge
Eye, Xxxxxxx Vision, X. X. Xxxxx, Eyeglass Emporium, Kent Optical, Shawnee
Optical, Vision Plaza (hereinafter, individually and collectively, the "Original
Borrowers") and Fleet National Bank (as successor-in-interest to Sovereign Bank,
as successor-in-interest to Fleet National Bank, hereinafter referred to as
"Fleet"), evidenced by, among other things, the following documents,
instruments, and agreements (hereinafter collectively, together with this
Agreement and all documents, instruments, and agreements executed incidental
hereto, and contemplated hereby, the "Loan Documents"):
1. Loan Agreement (hereinafter, as amended, the "Loan
Agreement") dated April 15, 1999, entered into by and between Fleet and
the Original Borrowers;
2. Secured Revolving Line Note (hereinafter, the "Revolving
Note") dated April 15, 1999 in the maximum principal amount of
$3,000,000.00 made by the Original Borrowers payable to Fleet;
3. Secured Term Note (hereinafter, the "Term Note") dated
April 15, 1999 in the original principal amount of $7,000,000.00 made
by the Original Borrowers payable to Fleet;
4. (i) Eight (8) Security Agreements (All Assets) dated April
15, 1999 respectively, by each of the Original Borrowers, as amended
and confirmed by certain Ratifications and Amendments of Security
Agreements dated January 31, 2002, and (ii) Security Agreement (All
Assets) dated July 31, 2002 by Kent Optometric (hereinafter,
collectively, the "Security Agreements"), pursuant to which each of the
Obligors granted Fleet a security interest in the Collateral (as
defined in the Security Agreements);
5. Security Agreement (Pledged Collateral) dated April 15,
1999, pursuant to which Sight Resource assigned, transferred, and
delivered to Fleet all of the Collateral (as defined therein);
6. Modification Agreement (hereinafter, the "Modification
Agreement") dated March 31, 2000 entered into by Fleet and the Original
Borrowers;
7. Second Modification Agreement (hereinafter, the "Second
Modification Agreement") dated November 30, 2000 entered into by Fleet
and the Original Borrowers;
8. Amended and Restated Third Modification Agreement
(hereinafter, the "Third Modification
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Agreement") dated May 14, 2001 entered into by Fleet and the Original
Borrowers;
9. Fourth Modification Agreement (hereinafter, the "Fourth
Modification Agreement") dated July 31, 2002 entered into by Fleet and
the Obligors, pursuant to which, among other things, Kent Optometric
became co-borrower with the Original Borrowers under the Loan
Documents, as amended, and became jointly and severally liable with the
Original Borrowers for all Obligations under the Loan Documents, as
amended;
10. Fifth Modification Agreement (hereinafter, the "Fifth
Modification Agreement") dated November 15, 2002 entered into by Fleet
and the Obligors;
11. Sixth Loan Modification Agreement (hereinafter, the "Sixth
Modification Agreement" dated December 27, 2002 entered into by
CadleRock, as successor to Fleet, and the Obligors;
12. Seventh Loan Modification Agreement (hereinafter, the
"Seventh Modification Agreement" dated December _______, 2003 entered
into by CadleRock, as successor to Fleet, and the Obligors; and
13. Common Stock Purchase Warrant dated March 31, 2000 issued
by Sight Resource in favor of Fleet.
B. The outstanding principal balance owing by Obligors to CadleRock
under the Loan Documents as of the date hereof is $1,400,000.00. Accrued
interest as of this date is $8,944.45 (hereinafter, "Accrued Interest"). In
addition, a termination fee of $200,000.00 (hereinafter, "Termination Fee") is
due as of June 30, 2004 pursuant to the Sixth Modification Agreement. Such
outstanding principal balance plus all Accrued Interest, late charges,
penalties, fees, expenses and other amounts owing by Obligors or any of them
under or in respect of the Loan Documents are collectively hereinafter referred
to as the "Total Indebtedness," and as of this date, total $1,408,944.45.
C. Obligors and CadleRock have determined that it would be in their
mutual best interests for CadleRock to take an assignment of all right, title
and interest of Kent Optical and Kent Optometric in certain assets of Kent
Optical and Kent Optometric as described in Exhibit A attached hereto
(hereinafter, "Kent Assets"), but excluding the Retained Assets described in
Exhibit A, so as to provide to Sight Resource and the other Obligors a credit in
the amount of $1,175,000.00 (the "Loan Reduction Credit") in consideration of
the reduction by CadleRock of the remaining amount of the Total Indebtedness to
$233,944.45 (after application of the $1,175,000.00 credit for assignment of all
right, title and interest in the Kent Optical Assets).
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D. The Obligors are willing to assign the Kent Assets to
CadleRock, and CadleRock is willing to accept assignment of the Kent
Assets and to reduce the Total Indebtedness as contemplated by the
preceding paragraph, and to provide the Loan Reduction Credit, based
upon, and in consideration of, the terms and conditions stated herein
as follows.
E. NOW, THEREFORE, the parties hereby agree as follows:
1. Kent Optical Assets Assignment. Kent Optical and Kent Optometric
shall assign, on this date, all of their right, title and interest in, to and
under the Kent Assets such that CadleRock is the party in whom all right, title
and interest in the Kent Assets vests. Such assignment shall be in the form
attached hereto as Exhibit B.
2. Loan Reduction Credit. Upon receipt by CadleRock of the assignment
by Kent Optical and Kent Optometric of the Kent Assets and the Affidavit
attached hereto as Exhibit C, Sight Resource and the other Obligors will receive
from CadleRock a credit on in the amount of $1,175,000.00 for application
against the Total Indebtedness (the "Loan Reduction Credit"). Kent Optical and
Kent Optometric shall execute and deliver to CadleRock the assignment of the
Kent Assets and the Affidavit attached hereto as Exhibit C simultaneously with
the execution of this agreement.
3. New Total Indebtedness. Effective upon receipt by CadleRock of the
assignment of the Kent Assets and the Affidavit attached hereto as Exhibit "C",
the amount of the Total Indebtedness (after application of the Loan Reduction
Credit) shall be reduced to $233,944.45 (the "New Total Indebtedness").
4. Acknowledgment by Obligors. Subject to and as modified by this
Agreement, the Obligors each hereby (i) acknowledge the validity and
enforceability of the Loan Documents, (ii) acknowledge and agree that they have
no offsets, defenses, claims or counterclaims against CadleRock as holder of the
Loan Documents; and (iii) the Termination Fee is fully earned by CadleRock, and
is due and payable in full by Obligors, jointly and severally, to CadleRock.
Each Obligor hereby ratifies, confirms and agrees that, except as modified by
this Agreement, all terms and conditions of the Loan Documents shall remain in
full force and effect.
5. Further Assurances. The Obligors shall, upon request by CadleRock
from time to time after execution of this Agreement, execute and deliver to
CadleRock such additional documents, instruments and agreements as CadleRock may
reasonably request in order to vest or perfect the Loan Documents (as modified
hereby) and the collateral granted therein more securely in CadleRock,
including, but not limited to, the Estoppel Affidavit and Conditional Delivery
of Assignment attached hereto as Exhibit C.
6. Indemnification/Hold Harmless. Obligors hereby indemnify and hold
harmless CadleRock, their partners, directors, officers and stockholders and the
successors and assigns of all of them (collectively the "Indemnitees") from,
against and in respect of any claim by Obligors or any other person to the
effect that, Obligors, or any person claiming by, through or under any of them,
has any claim of any type against the Indemnitees for any action taken or not
taken by the Indemnitees prior to this date. Obligors hereby release and
discharge Indemnitees from any such and all such
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claims, and Obligors further agree to indemnify and hold harmless Indemnitees
against any and all such claims and to pay Indemnitees' attorney fees and costs
in the defense of same.
7. Acknowledgement of Payment Obligation. Notwithstanding anything to
the contrary contained in this Agreement, upon the making of the Loan Reduction
Credit, the New Total Indebtedness will remain due and payable in full on June
30, 2004, after which interest shall accrue thereon at the default interest rate
as stated in the Sixth Modification Agreement.
8. No Waiver of Existing Defaults. Any defaults, events of defaults or
existing matters that with the passage of time would mature into a default under
the Loan Documents prior to the date of this Agreement are not waived and shall
be in full force and effect.
9. Miscellaneous. (a) This Agreement and the other documents referred
to herein contain the entire Agreement among the parties with respect to the
transactions contemplated hereby, and supersede all negotiations,
representations, warranties, commitments and offers whether oral or written,
prior to the date hereof.
(b) No modification or amendment of any provision of this
Agreement shall be effective unless made in a written instrument, duly
executed by the party to be bound thereby, which refers specifically to
this Agreement and states that an amendment or modification is being
made in the respects set forth in such instrument.
(c) If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the provisions shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated. This Agreement is, and shall be deemed to be, the product
of joint drafting by the parties hereto and shall not be construed
against any of them as the drafter hereof.
(d) This Agreement shall be binding upon and shall inure to
the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. No assignment of this Agreement
shall, however, relieve the assigning party of its obligations
hereunder.
(e) This Agreement shall be governed by and construed and
enforced with accordance with the laws of the State of Ohio as
applicable to contracts executed and fully performed in the State of
Ohio.
(f) No waiver of any provision of this Agreement shall be
effective unless in writing. The waiver by any party of a breach of
this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
(g) The captions contained in this Agreement have been
inserted for convenience of reference only and shall not affect the
interpretation of this Agreement.
(h) This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed to be an original, but
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all of which together shall constitute one and the same instrument.
With regard to this Agreement, and any other document relating to the
transactions to be consummated under this Agreement, a party's
execution may be evidenced by, and a party's delivery may be effected
by, facsimile or internet transmission.
(i) Each party hereto represents and warrants that it has full
authority to execute this agreement, that the representative executing
this agreement on its behalf has full authority to do so, that upon the
execution hereof, this agreement becomes fully binding on such party
and enforceable against such party in accordance with the terms hereof
and that no party is under any restriction of any kind against the
execution of this agreement or the performance of any obligation stated
herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first stated above.
CADLEROCK JOINT VENTURE, L. P. SIGHT RESOURCE CORPORATION
By: CadleRock, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxx, Pres. By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx Xxxxxxxx
--------------------------------------- ------------------------------
Title: President Title: Chief Financial Officer
-------------------------------------- -----------------------------
CAMBRIDGE EYE ASSOCIATES, INC. XXXXXXX VISION WORLD, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
--------------------------------------- ------------------------------
Title: Chief Financial Officer Title: Chief Financial Officer
-------------------------------------- -----------------------------
X. X. XXXXX OPTICIANS, INC. EYEGLASS EMPORIUM, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
--------------------------------------- ------------------------------
Title: Chief Financial Officer Title: Chief Financial Officer
-------------------------------------- -----------------------------
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KENT OPTICAL COMPANY f/k/a SHAWNEE OPTICAL, INC.
KENT ACQUISITION CORP
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
--------------------------------------- ------------------------------
Title: Chief Financial Officer Title: Chief Financial Officer
-------------------------------------- -----------------------------
KENT OPTOMETRIC PROVIDERS, INC.
VISION PLAZA CORP. f/k/a KENT OPTOMETRIC
PROVIDERS, P.C.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
--------------------------------------- ------------------------------
Title: Chief Financial Officer Title: Chief Financial Officer
-------------------------------------- -----------------------------
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EXHIBIT A
ASSETS
------
All right, title and interest of Kent Optical Company, f/k/a Kent
Acquisition Corp., a Delaware and Kent Optometric Providers, Inc., a Michigan
corporation, f/k/a Kent Optometric Providers, P.C., corporation, and any
successors or assigns thereof ("BORROWERS") in the following property, wherever
located:
1.01 ALL INVENTORY of the Borrowers; meaning all goods, merchandise, raw
materials, supplies, goods in process, finished goods and other
tangible personal property held by the Borrowers for processing, sale
or other business purpose or to be used or consumed in the Borrowers'
business.
1.02 ALL ACCOUNTS AND ACCOUNTS RECEIVABLE of the Borrowers; meaning all
accounts, accounts receivable, papers, notes, drafts, acceptances and
all other debts, obligations and liabilities in whatever form owing to
the Borrowers from any person, firm, corporation or any other legal
entity ("ACCOUNT DEBTORS"), excluding, however, accounts and accounts
receivable as to which any other Obligor is the Account Debtor.
1.03 ALL DOCUMENTS of the Borrowers; meaning all documents of title,
including bills of lading, dock warrants, dock receipts, warehouse
receipts and orders for the delivery of goods and also any other
document which in the regular course of business or financing is
treated as adequately evidencing that the person in the possession of
it is entitled to receive, hold and dispose of the document and the
goods it covers.
1.04 ALL INSTRUMENTS of the Borrowers; meaning all negotiable instruments,
securities and any other writing which evidence a right to payment of
money and are not themselves security agreements or leases and are of a
type which are in the ordinary course of business transferred by
delivery with any necessary endorsement or assignment.
1.05 ALL CHATTEL PAPER of the Borrowers; meaning a writing or writings which
evidence both a monetary obligation and a security interest in or a
lease of specific goods.
1.06 ALL INVESTMENT PROPERTY of the Borrowers, where located, now or
hereafter existing or hereafter and acquired, including all securities
(whether certified or not), security entitlements, security accounts,
financial assets and related rights, together with all proceeds of any
of the foregoing.
1.07 ALL OTHER GOODS of the Borrowers, wherever located, now existing or
hereafter acquired; meaning all motor vehicles, equipment, machinery
and other tangible personal property, whether fixtures or not, any and
all records relating to any of the Collateral (as defined in the
Security Agreement [all assets] dated April 15, 1999 between Fleet
National Bank and Borrower and/or the Security Agreement (All Assets)
dated July 31, 2002 between Fleet National Bank and Kent Optometric)
and all attachments and accessories thereto and substitutes therefor.
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1.08 ALL INTANGIBLE ASSETS (as hereinafter defined), to the extent not
already covered by the foregoing listing.
As used above, "INTANGIBLE ASSETS" means all intellectual property and
other intangible assets of Borrowers including:
(a) All right, title and interest in and to the name "Kent
Optical" and any and all derivations thereof together with a
license to use the xxxx "Sightcare";
(b) All telephone numbers, facsimile numbers, internet domain
names or registrations, trade secrets, customer lists,
know-how, concepts, methods, procedures, specifications,
vendor or supplier lists, and other operating data and
business documents relating, used or useful to or in the
operation of the business of Borrowers, together with all
records and lists that pertain directly or indirectly to any
of the foregoing;
(c) All prepaid items, including but not limited to all prepaid
advertising, rents, salaries or wages, and all other prepaid
items relating to the business of Borrowers;
(d) All goodwill related to the business of Borrowers; and
(e) All beneficial rights of Kent Optical Company under any and
all agreements of employees not to compete with the business
of Kent Optical Company and any confidentiality or other
agreements between Kent Optical Company and any other person,
provided, however, that nothing herein shall be construed as
an assumption by CadleRock of any obligation of Kent Optical
under any of those agreements; and
(f) All transferable licenses/permits necessary for the operation
of the business of Borrowers, if any.
Notwithstanding anything to the contrary set forth above or elsewhere
in the Agreement, the following assets (the "Retained Assets") shall be excluded
from the Kent Assets transferred to CadleRock and shall be retained by
Borrowers:
(a) Cash and cash equivalents;
(b) All prepaid expenses and any deposits made by Borrowers in the
operation of its Business that are not transferred by the
utility or other third party to the account of CadleRock;
(c) Accounting books and records;
(d) Contracts and agreements not specifically included in the Kent
Assets;
(e) Rights of recovery under insurance policies; and
(f) Software systems used by Sight Resource Corporation on a
centralized basis.
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(g) Inventory, equipment and other personal property and customer
and patient lists and account information at or in regard to
the Kent Optical store in Holland, Michigan.
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EXHIBIT B
ASSIGNMENT OF ASSETS
--------------------
This Assignment of Assets is made as of the 23rd day of June, 2004, by
Kent Optical Company, f/k/a Kent Acquisition Corp. (hereinafter, "Kent
Optical"), a Delaware corporation whose address is c/o Sight Resource
Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 and Kent Optometric
Providers, Inc., f/k/a Kent Optometric Providers, P.C., a Michigan corporation
whose address is c/o Sight Resource Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000 as Assignors, and CadleRock Joint Venture, L. P., an Ohio limited
partnership whose address is 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxx, XX 00000, as
Assignee
Witness that Assignors, for good and valuable consideration, receipt of
which is acknowledged, assign to Assignee that certain property described in
Exhibit A attached hereto and made a part hereof.
To have and to hold, all and singular, the property aforementioned unto
said Assignee, its successors and its assigns, forever.
Assignors hereby covenant with Assignee that Assignors will forever
defend Assignee against any and all claims of any and all persons claiming by,
through or under Assignors, but not otherwise. ASSIGNORS MAKE NO COVENANTS OR
WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, MARKETABILITY, FITNESS OR
SUITABILITY FOR A PARTICULAR PURPOSE OR OTHERWISE EXCEPT AS SET FORTH ON THE
EIGHTH LOAN MODIFICATION AGREEMENT OF EVEN DATE BETWEEN ASSIGNORS AND ASSIGNEE,
AMONG OTHERS. ANY IMPLIED COVENANTS OR WARRANTIES ARE EXPRESSLY DISCLAIMED AND
EXCLUDED BY THIS ASSIGNMENT.
IN WITNESS WHEREOF, Assignors have caused this instrument to be
executed by their duly authorized officers as of the day and year first above
written.
ASSIGNOR ASSIGNOR:
KENT OPTOMETRIC PROVIDERS, INC. KENT OPTICAL COMPANY,
F/K/A KENT OPTOMETRIC F/K/A KENT ACQUISITION CORP.
PROVIDERS, P.C.
By: By:
--------------------------------- -----------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------- ---------------------------------
Title: Chief Financial Officer Title: Chief Financial Officer
------------------------------ --------------------------------------
00
XXXXX XX XXXX
XXXXXX XX XXXXXXXX
Personally appeared before me, the undersigned, a Notary Public in and
for said State and County, duly commissioned and qualified, Xxxxxx Xxxxxxxx,
with whom I am personally acquainted, upon oath, acknowledged himself to be the
Chief Financial Officer of KENT OPTICAL COMPANY, the within named corporation;
and that she such as Chief Financial Officer, being authorized so to do,
executed the foregoing instrument for the purpose therein contained by signing
the name of the corporation by himself as such Chief Financial Officer.
Executed this 23rd day of June, 2004.
-----------------------------------
Notary Public
STATE OF OHIO
COUNTY OF XXXXXXXX
Personally appeared before me, the undersigned, a Notary Public in and
for said State and County, duly commissioned and qualified, Xxxxxx Xxxxxxxx,
with whom I am personally acquainted, upon oath, acknowledged himself to be the
Chief Financial Officer of KENT OPTOMETRIC PROVIDERS, INC., f/k/a KENT
OPTOMETRIC PROVIDERS, P.C. the within named corporation; and that he as such
Chief Financial Officer, being authorized so to do, executed the foregoing
instrument for the purpose therein contained by signing the name of the
corporation by himself as such Chief Financial Officer.
Executed this 23rd day of June, 2004.
-----------------------------------
Notary Public
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EXHIBIT C
ESTOPPEL AFFIDAVIT AND
CONDITIONAL DELIVERY OF ASSIGNMENT
STATE OF OHIO
COUNTY OF XXXXXXXX
THIS AFFIDAVIT, made this 23rd day of June, 2004, by Kent Optical
Company, f/k/a Kent Acquisition Corp. ("Kent Optical"), a Delaware corporation
with its principal place of business at c/o Sight Resource Corporation, 0000
Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, and Kent Optometric Providers, Inc., f/k/a
Kent Optometric Providers, P.C., ("Kent Optometric") a Michigan corporation
whose address is c/o Sight Resource Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000 hereinafter referred to as Assignors in favor of CadleRock Joint
Venture, L. P., an Ohio limited partnership with its main office at 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxx 00000, hereinafter referred to as Assignee.
W I T N E S S T H:
------------------
That Assignor Kent Optical did, on the fifteenth day of April, 1999,
execute a Loan Agreement with Fleet National Bank ("Fleet") predecessor to
Assignee;
That Assignor Kent Optical did, on the fifteenth day of April, 1999,
execute and deliver to Fleet a certain Secured Revolving Line Note made in the
principal sum of $3,000,000.00, and secured by a Security Agreement (All Assets)
dated April 15, 1999 and duly recorded UCC-1's as set forth in Schedule 1
attached hereto, covering such Assignor's personal property more particularly
described in the said Security Agreement;
That Assignor Kent Optical did, on the fifteenth day of April, 1999,
execute and deliver to Fleet a certain Secured Term Note made in the principal
sum of $7,000,000.00, and secured by a Security Agreement (All Assets) dated
April 15, 1999 and duly recorded UCC-1's as set forth in Schedule 1 attached
hereto, covering such Assignor's personal property more particularly described
in the said Security Agreement;
That Assignor Kent Optometric did assume liability for all sums due to
Fleet on the aforementioned Notes pursuant to the Fourth Loan Modification
Agreement dated July 12, 2002 (the "Fourth Modification");
That Assignor Kent Optometric did, on the thirty-first day of July,
2002, execute and deliver to Fleet a Security Agreement (All Assets) and duly
recorded UCC-1's as set forth in Schedule 1 attached hereto, covering such
Assignor's personal property more particularly described in the said Security
Agreement;
That Assignors did, on the twenty-seventh day of December, 2002,
execute and deliver to Assignee a Sixth Loan Modification Agreement (the "Sixth
Modification");
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That the Sixth Modification provided, among other terms, that the
Secured Revolving Line Note and the Secured Term Note mature on June 30, 2004,
and that, in addition, a $200,000.00 termination fee is due and payable on such
date by Assignors, among others, to Assignee;
That Assignors are unable to meet the obligations of said Notes, said
Security Agreements and the Sixth Modification according to the terms thereof.
That Assignors are the parties who made, executed, and delivered a
certain Assignment to Assignee, of even date herewith, on the form attached
hereto as Exhibit A. That Assignors hereby acknowledge, agree and certify that
the aforesaid Assignment was an absolute conveyance of the Assignors' rights,
title and interest in and to said personal property, together with release of
all rights in and to said personal property and that such Assignment did also
convey, transfer and assign all of Assignors' rights of possession, proceeds and
equity of redemption in and to said personal property. That the value of said
personal property is not in excess of the amount of said indebtedness
outstanding, and in consideration of the premises hereof and in consideration of
such Assignment, Assignors will receive a credit of $1,175,000.00 toward the
stated sums due on said Notes together with the termination of record by
Assignee of the UCC-1's, subject to the condition which is understood and agreed
by Assignor that the Assignment to Assignee referred to herein is intended to
convey a marketable title, free of liens or encumbrances; that Assignee intends
to examine the UCC public records before finally accepting said Assignment; and
that Assignee reserves the right to reject said Assignment, and to proceed by
foreclosure, replevin or other remedy to assert its rights against Assignors and
the assets described in the Assignment under the said Notes, the said Security
Agreements and the said Sixth Modification described hereinabove.
That Assignors voluntarily gave said Assignment to Assignee in good
faith on the part of Assignors and Assignee, without any fraud,
misrepresentation, duress or undue influence whatsoever, or any misunderstanding
on the part of Assignors or Assignee, and that said Assignment was not given as
a preference against any other creditor of Assignors. That said Assignment shall
not restrict the rights of Assignee to institute foreclosure, replevin or other
proceedings if the Assignee desires, but the conveyance by said Assignment shall
be, and hereby is, intended and understood to be an absolute conveyance and an
unconditional transfer and assignment, with full extinguishment of Assignors'
equity of redemption, and with full release of all Assignors' rights, title and
interest of every character in and to said personal property, as described in
the Assignment.
That this Affidavit has been made for the protection and benefit of
Assignee in said Assignment, and its successors and assigns, and all other
parties hereafter who deal with or who may acquire an interest in the personal
property described therein, and this Affidavit shall bind the respective
successors and assigns of the Assignors.
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IN WITNESS WHEREOF, each of Assignors has set its hand this 23rd day of
June, 2004, by its duly authorized representative.
Signed, acknowledged, and delivered Kent Optical Company, a Delaware
In the presence of corporation, f/k/a Kent Acquisition
Corp.
By:
--------------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxxxx
-------------------------------
Title: Chief Financial Officer
------------------------------
ASSIGNOR:
KENT OPTOMETRIC PROVIDERS, INC.
f/k/a KENT OPTOMETRIC
PROVIDERS, P.C.
By:
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Name: Xxxxxx Xxxxxxxx
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Title: Chief Financial Officer
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STATE OF OHIO
COUNTY OF XXXXXXXX
Personally appeared before me, the undersigned, a Notary Public in and
for said State and County, duly commissioned and qualified, Xxxxxx Xxxxxxxx,
with whom I am personally acquainted, upon oath, acknowledged himself to be the
Chief Financial Officer of KENT OPTICAL COMPANY, the within named corporation;
and that she such as Chief Financial Officer, being authorized so to do,
executed the foregoing instrument for the purpose therein contained by signing
the name of the corporation by himself as such Chief Financial Officer.
Executed this 23rd day of June, 2004.
-----------------------------------
Notary Public
STATE OF OHIO
COUNTY OF XXXXXXXX
Personally appeared before me, the undersigned, a Notary Public in and
for said State and County, duly commissioned and qualified, Xxxxxx Xxxxxxxx,
with whom I am personally acquainted, upon oath, acknowledged himself to be the
Chief Financial Officer of KENT OPTOMETRIC PROVIDERS, INC., f/k/a KENT
OPTOMETRIC PROVIDERS, P.C. the within named corporation; and that he as such
Chief Financial Officer, being authorized so to do, executed the foregoing
instrument for the purpose therein contained by signing the name of the
corporation by himself as such Chief Financial Officer.
Executed this 23rd day of June, 2004.
-----------------------------------
Notary Public
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SCHEDULE 1
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FILING FILING OTHER COLLATERAL
DEBTOR STATE OFFICE SECURED CREDITOR FILING DATE NUMBER AND/OR COMMENTS
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Kent Acquisition Corp. MI SOS Fleet National Bank April 19, 1999 D5047186
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Kent Optical Company DE SOS Fleet National Bank March 19, 2002 2070987 7 In-lieu
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Kent Optical Company DE SOS Fleet National Bank March 19, 2002 2070990 1 In lieu
(successor-in-interest
to Sovereign Bank)
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Kent Optical Company MI SOS Sovereign Bank May 18, 2002 24795C UCC-1
(New Filing)
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Kent Optical Company DE SOS Fleet National Bank July 2, 1999 D538636 In-lieu
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Kent Optometric Providers, MI SOS Fleet National Bank Oct. 3, 2002 46096C UCC-1
P.C. (New Filing)
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