ABSOLUTE ASSIGNMENT OF FRANCHISEE NOTES and PROCEEDS DUE
EXHIBIT 10.2
ABSOLUTE
ASSIGNMENT OF FRANCHISEE NOTES
and
PROCEEDS DUE
THIS
ASSIGNMENT is made as of August 7, 2007 by EMERGING VISION, INC.,
a New York corporation, with an office for the transaction
of business
located at 000 Xxxxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxx
00000 (the "Assignor"), to MANUFACTURERS AND TRADERS TRUST
COMPANY, a banking association, with offices at One
M&T Plaza, Buffalo, New York 14240, (the
"Assignee").
W
I T N E S S E T H:
WHEREAS,
the Assignee has agreed to make certain loans to the Assignor (the "Loans")
as
set forth in and evidenced by a Revolving Line of Credit Note and Agreement
dated the date hereof (the "Revolving Credit Agreement"), but only if, as
additional security for all of Assignor's now existing and hereafter incurred
obligations to the Assignee (collectively, the "Obligations") and all
instruments executed pursuant thereto, Assignor assigns to Assignee all of
Assignor's right, title, and interest in its contract rights in, all security
interests granted by, and all monies and proceeds due under (i) all franchisee
notes receivable of Assignor evidenced by the franchisee notes more particularly
identified in Schedule “A” annexed hereto, and accompanying loan documents
therefor, heretofore delivered to Assignee by Assignor as collateral for the
Loans (collectively, the “Franchisee Documents”), and (ii) any and all
Franchisee Documents, security interests granted by, and the monies and proceeds
due thereunder, which are hereafter entered into by Assignor, as long as the
any
of the Loans or any other Obligations of the Assignor are
outstanding.
NOW,
THEREFORE, in order to induce the Assignee to make the Loans evidenced by the
Revolving Credit Agreement, and as additional security for the payment of all
amounts due under the documents evidencing the Loans and Obligations and under
any other loan documents between the Assignor and Assignee, and for the
performance and observance of each term and condition contained therein, the
Assignor hereby assigns and grants to the Assignee all right, title and interest
that the Assignor has or may hereafter acquire in and to (i) the Franchisee
Documents and contract rights in, security interests granted by, and monies
and
proceeds due under the Franchisee Documents and (ii) any and all Franchisee
Documents, security interests granted by, and the monies and proceeds due
thereunder, which are hereafter entered into by Assignor as long as any of
the
Loans or other Obligations remain outstanding.
TO
HAVE
AND TO HOLD the same unto Assignee as additional and collateral security for
the
payment of all amounts due upon the Loans and any other Obligations and for
the
performance and observance of all of the agreements contained in the documents
evidencing same.
Although
this Assignment constitutes a present, current and absolute assignment of the
Franchisee Documents and any future Franchisee Documents hereinafter entered
into, so long as there shall exist no Event of Default as such term is defined
in the Revolving Credit Agreement, or in any other Loan Documents as such term
is defined in the Revolving Credit Agreement, Assignor shall have the
right to exercise every right, power and authority under the Franchisee
Documents, and to perform and enforce performance of all obligations under
the
Franchisee Documents.
This
Assignment is made for the purpose of securing (i) the full and prompt
payment when due, whether by acceleration or otherwise, with such interest
as
may accrue thereon, either before or after maturity thereof, of the Revolving
Credit Agreement, and (ii) the full and prompt payment and performance of
any and all obligations of Assignor to Assignee hereunder and under the
Revolving Credit Agreement and any other agreements, documents or instruments
now or hereafter evidencing, securing or otherwise relating to the indebtedness
evidenced by the Revolving Credit Agreement (the Revolving Credit Agreement
and
said other agreements, documents or instruments, together with all renewals,
amendments, extensions, consolidations and modifications thereof, are
hereinafter collectively referred to as the "Loan Documents").
Assignor
hereby covenants and agrees:
a) To
faithfully abide by, perform and discharge each and every obligation, covenant,
condition and agreement of the Franchisee Documents to be performed by Assignor
and to enforce performance by each other party thereto of each and every
obligation, covenant, condition and agreement to be performed by such other
party.
b) To
promptly provide Assignee with copies of any and all notices received or given
by Assignor which allege, that Assignor is in default in the performance of
any
obligation, covenant, condition or agreement of the Franchisee Documents to
be
performed by Assignor.
c) That
the term "Event of Default", whenever used in this Assignment, shall mean any
one or more of the following events:
(1) the
occurrence of any "Event of Default" under any of the Loan Documents beyond
any
applicable grace, notice and/or cure periods; or
(2) the
failure by Assignor to observe, perform or discharge any obligation, covenant,
condition or agreement of this Assignment for thirty (30) days after Assignee
has provided notice of same provided, however, that if such failure is not
susceptible of cure during such thirty (30) day period (but is susceptible
of
cure) and Assignor promptly commences and diligently pursues cure of such
failure during such thirty (30) day period, then such thirty (30) day period
shall be extended for an additional consecutive period of thirty (30) days;
or;
or
(3) any
representation or warranty made by Assignor herein shall prove to have been
false or incorrect in any material respect on the date as of which made;
or
(4) a
default by Assignor under the provisions of the Franchisee Documents
beyond any applicable grace, notice and/or cure periods.
d) That
an Event of Default by Assignor under this Assignment beyond any applicable
grace, notice and/or cure periods shall constitute an "Event of Default" under
all of the Loan Documents.
e) That
upon the occurrence of any Event of Default and beyond any applicable grace,
notice and/or cure periods, Assignee may at its option, with or without notice
or demand of any kind (except as may be provided herein or in any of the Loan
Documents), and without waiving such Event of Default, (i) exercise any and
all rights and remedies provided for hereunder or under the Loan Documents
as
well as such remedies as may be available at law or in equity and (ii) cure
any such Event of Default in such manner and to such extent as Assignee may
deem
necessary to protect the security hereof, including specifically, without
limitation, the right (but not the obligation) to appear in and defend any
action or proceeding purporting to affect the security hereof or the rights
or
powers of Assignee, and also the right (but not the obligation) to perform
and
discharge each and every obligation, covenant, condition and agreement of
Assignor under the Franchisee Documents, and, in exercising any such powers,
to
pay necessary costs and expenses, employ counsel and incur and pay attorneys'
fees and expenses. Assignee shall not be obligated to perform or
discharge, nor does it hereby undertake to perform or discharge, any obligation,
duty or liability of Assignor under any of the Franchisee Documents or by reason
of this Assignment, it being agreed that Assignee shall be treated as agreeing
to perform or discharge such obligation, duty or liability if (but
only if) Assignee shall, by written notice, sent to the other contracting party
to, or grantor or licensor of, such Franchisee Documents, expressly so
elect.
f) That
at any time after the occurrence of any Event of
Default and beyond any applicable grace, notice and/or
cure periods , Assignee may, at its option, without notice, and without regard
to the adequacy of security for the indebtedness hereby secured, either in
person or by agent, with or without bringing any action or proceeding, or by
a
receiver to be appointed by a court at any time hereafter, exercise and enforce
for its own benefit every right, power and authority under the Franchisee
Documents, or any of them, as fully as Assignor could itself.
g) That
the grantor or licensor of any Franchisee Documents, upon receipt of written
notice from Assignee of the occurrence of any Event of Default and Assignee's
election to exercise its rights under this Assignment, shall be and is hereby
irrevocably directed and authorized by Assignor to recognize and accept Assignee
as "lender" or Asecured
party@,
as the case may be, under the Franchisee Documents or as holder of such other
document, as the case may be, for any and all purposes as fully as it would
recognize and accept Assignor and the performance of Assignor thereunder, and
to
perform such document for the benefit of Assignee in accordance with the terms
and conditions thereof inclusive of making payments in accordance with the
Franchisee Documents directly to Assignee, without any obligation to determine
whether or not any such Event of Default has in fact occurred.
h) That
further, and without limitation of the foregoing remedies, upon the occurrence
of any Event of Default, Assignee shall have the rights and remedies of a
secured party under the Uniform Commercial Code as enacted in the State of
New
York with respect to each and every document in which a security
interest may be obtained, in addition to the rights and remedies otherwise
provided for by law or in equity or in any of the Loan Documents.
i) That
in the exercise of the powers herein granted to Assignee, no liability shall
be
asserted or enforced against Assignee, all such liability being hereby expressly
waived and released by Assignor. Assignor hereby agrees to indemnify
and hold Assignee free and harmless from and against any and all claims,
demands, liability, expense, cost, loss or damage (including all costs, expenses
and attorneys' fees incurred in the defense thereof) which may be asserted
against, imposed or incurred by Assignee by reason of any act or omission of
Assignor under any of the Franchisee Documents or by reason of this Assignment
or the exercise of Assignee's rights and remedies under this Assignment or
under
any of the Franchisee Documents or by reason of any alleged obligation or
undertaking of Assignee to perform or discharge any obligation, duty or
liability of Assignor under any of the Franchisee Documents; provided, however,
that nothing herein shall be construed to obligate Assignor to indemnify and
hold Assignee free and harmless from and against any claim, demand, liability,
expense, cost, loss or damage asserted against, imposed on or incurred by
Assignee by reason of Assignee's willful misconduct or gross
negligence. Should Assignee incur any such liability, expense, cost,
loss or damage, or in the defense of any such claims or demands, for which
it is
to be indemnified by Assignor as aforesaid, the amount thereof shall be secured
by this Assignment, and the other Loan Documents (whether or not such amount,
when aggregated with other sums secured by the other Loan Documents, exceeds
the
principal face amount of the Revolving Credit Agreement), shall bear interest
at
the Interest Rate specified in the Revolving Credit Agreement from the date
incurred until paid, and shall be due and payable immediately upon demand by
Assignee.
j) That
Assignee shall have the right to assign to any subsequent holder of the
Revolving Credit Agreement, the Franchisee Documents and all the right, title,
interest, power and authority of the Assignor in, under and by virtue of the
Franchisee Documents hereby or hereafter assigned.
Assignor
further hereby covenants and represents to Assignee that (i) Assignor has
not previously assigned, sold, pledged, transferred, mortgaged, hypothecated
or
otherwise encumbered the Franchisee Documents or any of them, or its right,
title and interest therein, (ii) Assignor shall not assign, sell, pledge,
transfer, mortgage, hypothecate or otherwise encumber its interests in the
Franchisee Documents or any of them, (iii) Assignor has not knowingly
performed any act which might prevent Assignor from performing its undertakings
hereunder or which might prevent Assignee from operating under or enforcing
any
of the terms and conditions hereof or which would limit Assignee in such
operation or enforcement, (iv) Assignor has not received any notice of or
knows of no default by Assignor under the Franchisee Documents, or any of them
and to the best knowledge of Assignor, no acceleration or termination of any
Franchisee Documents has resulted due to any default thereunder except as
disclosed in writing to Assignee, and (v) upon execution of any of the
Franchisee Documents, Assignor will deliver a copy of such Franchisee Documents
(or the original at Assignee's request) to Assignee.
All
notices, demands or Franchisee Documents which are required or permitted to
be
given or served hereunder shall be in writing and shall be deemed sufficiently
given when delivered or mailed in the manner set forth in the Revolving Creidt
Agreement.
Any
provision in the Revolving Credit Agreement that pertains to this Assignment
shall be deemed to be incorporated herein as if such provision were fully set
forth in this Assignment. In the event of any conflict between the
terms of this Assignment and the terms of the Revolving Credit Agreement, the
terms of the Revolving Credit Agreement shall prevail. A provision in
this Assignment shall not be deemed to be inconsistent with the Revolving Credit
Agreement by reason of fact that no provision in the Revolving Credit Agreement
covers such provision in this Assignment.
This
Assignment constitutes the granting by Assignor to Assignee of a security
interest under the Uniform Commercial Code as enacted in the State of New York
in the right, title and interest of Assignor in, to and under each and every
document in which a security interest may be obtained. Assignor
agrees to execute and deliver to Assignee, at any time or times during which
this Assignment shall be in effect, such further instruments as Assignee may
deem necessary to make effective this Assignment and the security interest
created hereby. To evidence such security interest, at the request of
Assignee, Assignor shall, in a form satisfactory to Assignee, join with Assignee
in executing one or more financing statements or other notices of security
interest, and any continuation thereof, and shall pay the cost for filing
thereof. Assignor also grants Assignee the irrevocable right to file
financing statements without Assignor joining in the execution
thereof.
The
exercise of any rights or remedies under this Assignment shall not be deemed
to
cure or waive any default or event of default under any of the Loan Documents,
or waive, modify or affect any notice of default under any of the Loan
Documents, or invalidate any act done pursuant to such notice. The
rights and remedies of Assignee herein provided shall be in addition to and
not
substitution for the rights and remedies vested in Assignee in any of the Loan
Documents or at law or in equity, all of which rights and remedies are
specifically reserved by Assignee. The remedies herein provided or
otherwise available to Assignee shall be cumulative and may be exercised
concurrently. The failure to exercise any of the remedies herein
provided shall not constitute a waiver thereof, nor shall use any of the
remedies herein provided prevent the subsequent or concurrent resort to any
other remedy or remedies.
This
Assignment shall be interpreted, construed and enforced according to laws of
the
State of New York.
It
is
expressly intended, understood and agreed that this Assignment and the Loan
Documents are made and entered into for the sole protection and benefit of
Assignor and Assignee, and their respective legal representatives, successors
and assigns (but in the case of assigns of Assignor, only to the extent
permitted hereunder); that no other person or persons shall have any right
at
any time to action hereon or rights to the proceeds of the Loans; and
that Assignee shall have a lien upon and right to direct application of any
such
undisbursed proceeds of the Loans as provided in the Loan
Documents.
The
relationship between Assignee and Assignor is solely that of a lender and
borrower, and nothing contained herein or in any of the Loan Documents shall
in
any manner be construed as making the parties hereto partners, joint venturers
or any other relationship other than lender and borrower.
Assignor
and Assignee intend and believe that each provision in this Assignment comports
with all applicable local, state or federal laws and judicial
decisions. However, if any provision or provisions, or if any portion
of any provision or provisions, in this Assignment if found by a court of law
to
be in violation of any applicable local, state or federal ordinance, statute,
law administrative or judicial decision or public policy, and if such court
should declare such portion, provision or provisions of this Assignment to
be
illegal, invalid, unlawful, void or unenforceable as written, then it is the
intent of both Assignor and Assignee that such portion, provision or provisions
shall be given force to the fullest possible extent that they are legal, valid
and enforceable, that the remainder of this Assignment shall be construed as
if
such illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were not contained therein and that the rights, obligations and
interests of Assignor and Assignee under the remainder of this Assignment shall
continue in full force and effect.
Assignor
agrees that the Franchisee Documents will not be altered, modified or changed,
except in the regular course of business of Assignor, without the prior written
consent of Assignee.
Assignor
further agrees not to hereafter assign or transfer its interest in the
Franchisee Documents or the monies and proceeds due thereunder to or for the
benefit of any other person, firm or corporation.
Assignor
further agrees to execute any additional documents that may be necessary or
advisable in order to carry out and effect the full intent of this
Assignment.
UPON
payment in full of the Obligations, this Assignment shall be rendered null
and
void.
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IN
WITNESS WHEREOF, this Assignment is duly executed by Assignor the day and year
first above written.
EMERGING
VISION, INC.
By:/s/Xxxxxxxxxxx
X. Xxxxx
Xxxxxxxxxxx
X. Xxxxx
CEO
EXHIBIT
A
SEE
ATTACHED LIST OF FRANCHISEE NOTES
RECEIVABLE
