Exhibit 10.29
SECOND AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS Second Amendment to Loan and Security (the "Second Amendment") is
dated as of this 5th day of April, 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" ("Optik Pro"), and HEALTH EYE CARE
STATISTICS, INC. ("Health", and together with Optik Pro, each individually, a
"Guarantor" and, collectively, the "Guarantors"; each Borrower and Guarantor,
individually, an "Obligor" and, collectively, the "Obligors").
BACKGROUND
The Obligors 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" and together with the Initial Loan Agreement, 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 requested that the Lender: (i) extend the Line
Termination Date; (ii) amend certain financial covenants as set forth in the
Loan Documents; (iii) seek certain relief from mandatory pre-payment of the Term
Loan from the proceeds of B&L Deferred Account Payable; and (iv) make certain
amendments and other modifications to the Loan Documents, and Lender has agreed
to do so, upon the condition precedent that Palisade Concentrated Equity
Partnership, L.P., make an additional equity contribution to USVision in the
amount of no less than One Million Five Hundred Thousand ($1,500,000) Dollars,
and expressly, subject to such other the 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 Second Amendment, as set
forth in Section 5 hereof, the Loan Agreement is further amended as follows:
1.1 Amendments to Certain Financial Covenants. Paragraphs 6.1.25.1,
6.1.25.2, 6.1.25.3 and 6.1.25.4 are respectively amended and restated in their
entirety as follows:
6.1.25.1 Minimum Tangible Net Worth. Maintain a minimum Tangible Net
Worth, measured as of the last day of each month, of not less than
Twenty Million Five Hundred Thousand Dollars ($20,500,000) for the
period beginning on January 31, 2004 and thereafter;
6.1.25.2 Minimum Current Ratio. Maintain a minimum Current Ratio,
measured as of the last day of each month, of not less than (i) 1.30
to 1.00 for the period beginning on January 31, 2003 and ending on
December 31, 2004; (ii) 1.40 to 1.00 for the period beginning on
January 31, 2005 and ending on December 31, 2005; and (iii) 1.50 to
1.00 for the period beginning on January 31, 2006 and thereafter;
6.1.25.3 Minimum Debt Coverage Ratio. Maintain a minimum Debt Coverage
Ratio, measured on a rolling twelve-month basis as of the last day of
each month, of not less than 1.10 to 1.00 for the period beginning on
January 31, 2005 and thereafter;
6.1.25.4 Minimum Fixed Charge Coverage Ratio. Maintain a minimum Fixed
Charge Coverage Ratio, measured on a rolling twelve-month basis as of
the last day of each month, of not less than 1.00 to 1.00 for the
period beginning on January 31, 2005 and thereafter;
1.2 Deletion of Mandatory Prepayment of B&L Deferred Accounts Payable
under the Term Loan. The last two sentences of Paragraph 2.2.8 of the Loan
Agreement as set forth in the First Amendment requiring the Borrowers to prepay
principal under the Term Loan in an amount equal to the proceeds of B&L Deferred
Account Payable are deleted and Borrowers are no longer required to make such
prepayments of principal under the Term Loan.
1.3 Extension of Line Termination Date. The definition of the Line
Termination Date is hereby amended and restated as follows:
"Line Termination Date" means (i) October 31, 2005, or as extended
2
pursuant to Paragraph 2.1.10 above [sic. the Initial Loan Agreement],
or (ii) such earlier date as Borrowers shall determine by notice to
Lender, or (iii) such other date as Lender and Borrowers may, from
time to time, mutually determine.
2. Additional Equity Contribution of Palisade. As a condition precedent to
the effectiveness of the amendments set forth in Section 1 of this Second
Amendment, Palisade shall have made an additional equity contribution to
USVision in the amount of no less than One Million Five Hundred Thousand
($1,500,000) Dollars (the "Additional Palisade Equity Contribution") and each of
Palisade and USVision shall deliver to the Lender such confirmation thereof upon
the contribution thereof and from time-to-time thereafter, as may be reasonably
acceptable to the Lender.
3. 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.
4. Representations and Warranties of the Borrower. Each of the Obligors
represents and warrants to Lender each and all of the following:
4.1 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;
4.2 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 the First Amendment and heretofore delivered to the
Lender) in connection with the closing under the Loan Agreement and that each is
presently in full force and effect;
4.3 Each Obligor has full power and authority to execute and deliver
this Second Amendment and the other Loan Documents, as amended hereby, and this
Second 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;
4.4 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 Second Amendment;
3
4.5 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 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
4.6 Accuracy of Representations; No Default. Except as set forth
amended and restated Schedules 5.1.5 [Leases] and 5.1.17 [Stock Ownership], each
of which are attached hereto and made a part hereof, and with respect to
Schedule 5.1.6 [Sales Volumes by Location], except as otherwise previously
disclosed to the Lender by Borrowers financial reporting to the Lender, the
information set forth herein and on each of the Schedules hereto, and in each of
the other 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.
5. Conditions Precedent to the effectiveness of the Amendments and to
Lender's Consents. As conditions precedent to the effectiveness of this Second
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 Second Amendment, the following documents,
instruments and agreements and the following conditions shall have been
satisfied:
5.1 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;
5.2 No Event of Default or Potential Default shall have occurred and
be continuing hereunder or under any other Loan Document;
5.3 No Material Adverse Change shall have occurred since October 31,
2003;
5.4 Provided that Lender has advised the Borrowers that Lender has
obtained the approvals contemplated by Section 5.7 hereof, and has either
obtained or has waived the requirements set forth in Section 5.8 hereof,
Palisade shall have made the
4
Additional Palisade Equity Contribution as contemplated by Section 2 hereof, and
each of the USVision and Palisade shall have delivered to the Lender confirming
evidence as may be reasonably acceptable to the Lender;
5.5 A certificate of the Secretary of each Obligor, certifying to and
attaching true, correct and complete copies of (i) resolutions of such Obligor's
Board of Directors authorizing the execution, delivery and performance of the
transactions contemplated by this Second Amendment and the other Loan Documents
contemplated hereby, and (ii) incumbency and signatures of the officers of such
Obligor authorized to execute and deliver the Loan Documents;
5.6 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;
5.7 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;
5.8 Lender shall have obtained the written consent of each of Lender's
participants in the Loans; and
5.8 Obligors will have delivered to Lender such additional documents
or instruments as Lender may reasonably require.
6. 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 and
further amended by this Second Amendment. This Second Amendment may be executed
in counterpart and delivered by facsimile, each of which shall constitute and
original and collectively one and the same agreement.
5
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. HEALTH EYE CARE STATISTICS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx., Xxxxxxx X. Xxxxxxxx, Xx.,
President President
USV OPTICAL, INC. LENDER: 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
6
