Exhibit 10.31
FOURTH AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS Fourth Amendment to Loan and Security (the "Fourth Amendment") is
dated as of this, 25th day of August, 2005, by and among COMMERCE BANK, N.A.
(the "Lender") and U.S. VISION, INC., a Delaware corporation ("US Vision"),
STYL-RITE OPTICAL MFG. CO., INC., a Florida corporation ("Styl"), USV OPTICAL,
INC., a Texas corporation ("USV"), and U.S. VISION HOLDINGS, INC., a Delaware
corporation ("Holdings" and together with US Vision, Styl and USV, each
individually, a "Borrower" and, collectively, the "Borrowers"), and 0000-0000
XXXXXX, INC. d/b/a "Optik Pro Baie 2000" ("Guarantor;" each Borrower and
Guarantor, individually, an "Obligor" and, collectively, the "Obligors").
BACKGROUND
The Obligors, Health Eye Care Statistics, Inc. ("Health") and the Lender
are parties to that certain Loan and Security Agreement, dated as of October 30,
2002 (the "Initial Loan Agreement"), as amended by the First Amendment thereto
dated as of May 30, 2003 (the "First Amendment"), as further amended by the
Second Amendment thereto dated as of April 5, [sic. 2004] (the "Second
Amendment"), and as further amended by the Third Amendment thereto dated as of
January 31, 2005 (the "Third Amendment", and together with the Initial Loan
Agreement, the First Amendment, the Second Amendment, and this Fourth Amendment,
collectively, the "Loan Agreement"). All initially capitalized terms used herein
and not otherwise defined herein shall have the same meaning as ascribed to such
terms in the Loan Agreement.
US Vision and the Lender are also parties to that certain Loan and Security
Agreement, dated as of September 23, 1999 (said Loan and Security Agreement, as
amended, supplemented, modified and/or restated, being referred to herein as the
"Real Estate Loan Agreement"), and a First Purchase Money Mortgage, Assignment
of Leases, Rents and Other Income and Security Agreement (the "Mortgage", and
together with the Real Estate Loan Agreement, collectively, the "Mortgage
Documents", and, together with the Loan Agreement, collectively, the "Loan
Documents").
The Obligors have advised Lender that the dissolution of Health has been
effected and has requested that the Lender: (i) prospectively reduce the Term
Interest Rate from Nine (9%) Percent per annum to Eight (8%) Percent per annum;
(ii) waive and amend Paragraphs 7.1.3, 7.1.6 and 7.1.10 of the Initial Loan
Agreement to permit the Reorganization (as hereinafter defined); and (iii) make
certain amendments and other modifications to the Loan Documents, and Lender has
agreed to do so expressly subject to such other terms, conditions and
limitations hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and premises set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Amendments to the Loan Agreement. Subject to the fulfillment of all of
the conditions precedent to the effectiveness of this Fourth Amendment, as set
forth in Section 4 hereof, the Loan Agreement is further amended as follows:
1.1 Term Interest Rate. The definition of "Term Interest Rate" is
hereby amended and restated as follows:
"Term Interest Rate" means Nine (9%) Percent per annum commencing as
of the extension of the Term Loan through and including the Effective
Date hereof [sic. the Fourth Amendment] and Eight (8%) Percent per
annum from and after the Effective Date hereof [sic. the Fourth
Amendment].
1.2 Additional Definitions. The following definitions are hereby added
to the Loan Agreement:
"2005 Reorganization" means the transactions contemplated by that
certain proposed Agreement and Plan of Merger to be entered into by
and among Palisade Concentrated Equity Partnership, L.P. ("Palisade"),
Refac ("REFAC"), USV Merger Sub, Inc., a wholly-owned subsidiary of
REFAC ("Merger Sub"), US Vision, and the other stockholders of US
Vision, pursuant to which, inter alia, (A) Merger Sub shall be merged
with and into US Vision (the "Merger"), and the separate existence of
Merger Sub will cease and US Vision will continue as the surviving
corporation and a wholly-owned subsidiary of REFAC, (B) each issued
and outstanding share of the common stock of US Vision shall be
converted into the right to receive a to be determined number of fully
paid and nonassessable shares of common stock of REFAC at the
effective time of the Merger and (C). each other issued and
outstanding share of the capital stock of US Vision, as well as each
share of the capital stock of US Vision owned by US Vision, shall be
automatically canceled and retired at the effective time of the
Merger,
"Amended and Restated Note" means that certain Amended and Restated
Term Note of even date herewith of the Borrowers in favor of the
Lender, which amends and restates in its entirety the original Term
Note dated October 30, 2002 in the original principal amount of
Fifteen Million ($15,000,000) Dollars which continues to evidence the
Term Loan and shall continue to constitute one of the Notes.
1.3 Amendments to Certain Negative Covenants. The following
2
Paragraphs as set forth in the Initial Loan Agreement are each hereby
respectively amended and restated as follows:
7.1.3 Combination; Merger. Other than as contemplated by the
Transaction Documents and the 2005 Reorganization, enter into proceedings in
total or partial liquidation; merge, combine or consolidate with or into any
unaffiliated entity, or acquire all or substantially all of the assets or
securities of any other Person or otherwise take any action or omit to take any
action which would have a Material Adverse Effect, individually or in the
aggregate, on Obligors or their business;
7.1.6 Ownership/Management. Other than as contemplated the 2005
Reorganization, make any material change in the executive management of Obligors
or materially change Obligors' corporate structure, or beneficial or legal
ownership of the Obligors, including, but not limited to, any change in the
shareholders, or their respective interests, except any transfers by any
shareholder of any Obligor as of the date hereof to (a) any Person that has an
equity or other ownership interest in any shareholder of any Obligor as of the
date hereof; (b) any dependent of any shareholder of any Obligor as of the date
hereof or a trust formed for the benefit of any such dependent of any
shareholder of any Obligor as of the date hereof of, in any of the Obligors;
7.1.10 Transactions with Affiliates. Other than as contemplated
the 2005 Reorganization, enter into any transaction or transactions with any
Affiliate for less than full value or on terms or conditions less favorable than
could be obtained in an arm's length transaction with a third party or make any
loan or advance to, or guaranty any obligation of Debt of, any Affiliate; and
1.4 Additional Reporting Requirements. The following is added to the
end of Section 6.1 of the Loan Agreement:
6.1.27 Information in respect of REFAC. As and when filed with the
SEC, cause REFAC to deliver to the Lender a true, correct and complete
copy of all filings therewith.
6.1.28 The 2005 Reorganization Closing Documents. Promptly after the
consummation of the transactions contemplated by the 2005
Reorganization, but in all events within ten (10) days thereafter,
deliver to the Lender a closing binder of all material documents
evidencing the consummation of the transactions contemplated thereby,
certified by a duly authorized officer of the Borrowers, REFAC and
Palisade as being a true, correct and complete copy of such documents,
together with an amended Schedule 5.1.17 to the Loan Agreement.
1.5 Additional Event of Default. The following shall be added as
Paragraph 8.1.13 to Section 8.1 of the Loan Agreement as an additional Event of
Default, and the remaining Paragraph shall be renumber sequentially:
8.1.13 Palisade shall either (a) become the beneficial owner of less
than 50.01% of the voting common stock of REFAC and otherwise cease to
effectively control the management of REFAC or (b) become the
beneficial owner of less than 40% of the voting common stock of REFAC.
3
2. Ratification of Loan Documents. Except as expressly provided herein,
each of the terms, conditions and provisions set forth in the respective Loan
Documents are hereby ratified and confirmed herein in full.
3. Representations and Warranties of the Borrower. Each of the Obligors
represents and warrants to Lender each and all of the following:
3.1 Each and all of the representations and warranties as set forth in
the Loan Agreement, the Mortgage Documents and the other Loan Documents are
true, correct and complete in all material respects as of the date hereof except
as such representations and warranties expressly relate to a different date. It
is the express intention of the Obligors to hereby ratify, confirm and republish
such representations and warranties as if set forth herein in full;
3.2 With respect to each of the Obligors none of their respective
articles of incorporation, bylaws or other organizational documents, nor their
respective qualifications to do business have changed in any respect since the
certification thereof was delivered to the Lender on or about October 20, 2002
(except as may have otherwise been amended or modified in connection with the
transactions contemplated by either the First Amendment, the Second Amendment,
or Third Amendment heretofore delivered to the Lender) in connection with the
closing under the Loan Agreement and that each is presently in full force and
effect;
3.3 Each Obligor has full power and authority to execute and deliver
this Fourth Amendment and the other Loan Documents, as amended hereby, and this
Fourth Amendment and the other Loan Documents to be executed and delivered in
connection herewith constitute the legal, valid and binding joint and several
obligations of the Obligors parties thereto, enforceable against each of the
Obligors in accordance with their respective terms;
3.4 No authorization, approval, consent, or other action by, notice
to, or filing with, any Governmental Agency or other Person (other than the
consent of the respective Board of Directors of each Obligor), is required for
the execution, delivery or performance by Obligors of this Fourth Amendment; and
3.5 Each Obligor has complied with all applicable laws (including
rules, regulations, codes, plans, injunctions, judgments, orders, decrees,
rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof, including, without limitation, the SEC
and all applicable state securities regulatory agencies (each a "Blue Sky
Agency"), and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, audit, or notice has been filed or commenced, or to
the knowledge of any of the Obligors threatened, against any Obligor, or any of
their respective officers, directors or shareholders, alleging any failure so to
comply. No disciplinary proceeding with respect to any Obligor or any Obligor's
respective officers is pending before the SEC or any Blue Sky Agency. To the
knowledge of the Obligors, there are no facts which, if known by a potential
claimant or
4
Governmental Authority, could give rise to a claim or proceeding which, if
asserted or conducted, the results would be unfavorable to any of the Obligors;
and
3.6 Accuracy of Representations; No Default. Except as set forth in
amended and restated Schedules 3.1.3 [Liens], 5.1.5 [Leases], 5.1.6 [Sales
Volumes by Location] and 5.1.17 [Stock Ownership], each of which are attached
hereto and made a part hereof, the information set forth in each of the Loan
Documents is complete and accurate in all material respects and contains full
and complete disclosure of all pertinent information in connection with
Obligors. None of such information contains any untrue statement of a material
fact or omits to state a material fact necessary to make the information
contained herein or therein not misleading or not incomplete. No Event of
Default or Potential Default hereunder, or under any other Loan Document, has
occurred.
4. Conditions Precedent to the effectiveness of the Amendments and to
Lender's Consents. As conditions precedent to the effectiveness of this Fourth
Amendment, Obligors shall deliver or cause to be delivered to Lender, executed
where applicable and in form and substance satisfactory to Lender and its
counsel, in addition to this Fourth Amendment, the following documents,
instruments and agreements and the following conditions shall have been
satisfied:
4.1 The representations and warranties set forth herein and in each of
the other Loan Documents shall be true and correct in all material respects on
and as of the date hereof with the same effect as though made on and as of such
date, except as such representations and warranties relate to a different date;
4.2 No Event of Default or Potential Default shall have occurred and
be continuing hereunder or under any other Loan Document;
4.3 No Material Adverse Change shall have occurred since May 31, 2005;
4.4 Borrowers shall have executed and delivered to Lender the Amended
and Restated Note;
4.5 Payment of all Lender's Costs in connection with the negotiation,
drafting and closing of the transactions contemplated hereby accrued to the date
of the execution hereof, together with all reasonably anticipated Lender's Costs
to be reasonably incurred in connection with all post closing items. Obligors
authorize Lender to deduct such Lender's Costs from the Line and agree to
indemnify and hold Lender harmless from and against any and all claims, other
than claims arising from Lender's willful misconduct or gross negligence, for
any such Lender's Costs;
4.6 The Lender shall have obtained such approvals internal and
otherwise, including, but not limited to the Board of Directors of the Lender
and the Lender's holding company; as are required by law, and as the Lender may
otherwise deem necessary or appropriate;
5
4.7 Lender shall have obtained the written consent and/or a
Termination of Participation Agreement in form and substance acceptable to the
Lender, from each of Lender's participants in the Loans; and
4.8 Obligors will have delivered to Lender such additional documents
or instruments as Lender may reasonably require.
5. Miscellaneous. Other than Section 9.5, the provisions of Article 9 of
the Loan Agreement are hereby incorporated herein and made a part hereof as if
set forth herein in full, and all references therein to the Loan Agreement shall
be deemed to include the Loan Agreement, as amended by the First Amendment, the
Second Amendment, the Third Amendment, and further amended by this Fourth
Amendment. This Fourth Amendment may be executed in counterpart and delivered by
facsimile, each of which shall constitute and original and collectively one and
the same agreement.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, intending to be legally bound hereby, Obligors and
Lender have executed this Agreement under seal, intending to be legally bound
hereby, the day and year first above written.
BORROWERS / OBLIGORS: GUARANTORS / OBLIGORS:
U.S. VISION, INC. 9072-8411 QUEBEC, INC.
d/b/a "Optik Pro Baie 2000"
By: /s/ Xxxxxx X. Xxxx III By: /s/ Xxxxxx X. Xxxx III
--------------------------------- ----------------------------------
Xxxxxx X. Xxxx III, Xxxxxx X. Xxxx III,
Executive Vice President Executive Vice President
and Chief Financial Officer and Chief Financial Officer
STYL-RITE OPTICAL MFG. CO., INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
President
LENDER:
USV OPTICAL, INC. COMMERCE BANK, N.A.
By: /s/ Xxxxxx X. Xxxx III By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ------------------------------------
Xxxxxx X. Xxxx III, Xxxxxx X. Xxxxx,
Executive Vice President Vice President
and Chief Financial Officer
U.S. VISION HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxx III
---------------------------------
Xxxxxx X. Xxxx III,
Chief Financial Officer
7
