COAST BUSINESS CREDIT/Registered trademark/
SECOND AMENDMENT TO SCHEDULE TO LOAN AND SECURITY AGREEMENT
Borrower: Ocean Optique Distributors, Inc.
Address: 00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Borrower: Classic Optical, Inc.
Address: 00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Borrower: European Manufacturers Agency, Inc.
Address: 00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Date: August 6, 1997
THIS SECOND AMENDMENT TO THE SCHEDULE TO THE LOAN AND SECURITY AGREEMENT is
entered into as of the above date between COAST BUSINESS CREDIT, a division of
Southern Pacific Thrift & Loan Association ("Coast"), a California corporation,
with offices at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, and Ocean Optique Distributors, Inc., Classic Optical, Inc. and European
Manufacturers Agency, Inc., jointly and severally, the "Borrower" whose chief
executive office is located at the above address ("Borrower's Address"). This
Amendment shall for all purposes be deemed to be a part of the Schedule to the
Loan and Security Agreement ("Schedule"), and the same is an integral part of
the Schedule.
CONSENT AND APPROVAL
Coast hereby consents and approves Borrower's request to add Solovision Optical,
Inc., a Florida Corporation ("Solovision") as a co-borrower under the Loan and
Security Agreement and all documents related thereto ("Loan Documents").
Solovision agrees to be bound by all of the terms and conditions in the Loan
Documents.
AMENDMENT
The Loan Documents are hereby amended in all respects define to include
Solovision as a named Borrower. All other terms and conditions shall remain the
same.
CONDITIONS PRECEDENT TO EFFECTIVENESS OF FIRST AMENDMENT
1. Solovision shall comply with each and every condition precedent
contained in the Loan Documents.
2. Borrower and each of them, shall execute the Joint and Several Borrower
Rider, a copy of which is attached hereto as Exhibit "A" and
incorporated herein by this reference.
Borrower: Coast:
OCEAN OPTIQUE DISTRIBUTORS, INC. COAST BUSINESS CREDIT, a division of
Southern Pacific Thrift & Loan Association
By: /s/ XXXXXXX XXXXXX By: /s/ XXXXXX XXXXX
---------------------------- --------------------------------------
Xxxxxxx Xxxxxx, President Xxxxxx Xxxxx, Vice President
Borrower:
CLASSIC OPTICAL, INC.
By: /s/ XXXXXXX XXXXXX
----------------------------
Xxxxxxx Xxxxxx, President
Borrower:
EUROPEAN MANUFACTURERS AGENCY, INC.
By: /s/ XXXXXXX XXXXXX
----------------------------
Xxxxxxx Xxxxxx, President
Borrower:
SOLOVISION OPTICAL, INC.
By: /s/ XXXXXXX XXXXXX
----------------------------
Xxxxxxx Xxxxxx, President
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COAST BUSINESS CREDIT/Registered trademark/
JOINT AND SEVERAL BORROWER RIDER
Borrower: Ocean Optique Distributors, Inc.
Address: 00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Borrower: Classic Optical, Inc.
Address: 00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Borrower: European Manufacturers Agency, Inc.
Address: 00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Borrower: Solovision Optical, Inc.
Address: 00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Date: August 6,1997
This JOINT AND SEVERAL BORROWER RIDER (this "Rider"),
dated as of August __, 1997, is executed by and among Ocean Optique
Distributors, Inc., Classic Optical Inc., European Manufacturers Agency, Inc.
and Solovision Optical, Inc. are (collectively referred to herein as "Borrowers"
and individually as a "Borrower"), in favor of and delivered to COAST BUSINESS
CREDIT/Registered trademark/ ("Coast"), a division of Southern Pacific Thrift &
Loan Association, a California corporation.
WHEREAS, Borrowers are contemporaneously herewith
executing and delivering to Coast a Second Amendment to Schedule to Loan and
Security Agreement to add Solovision Optical, Inc. as an additional Borrower
under that certain Loan and Security Agreement, dated as of May 28, 1997 (the
"Agreement"), (the Agreement together with any and all other agreements,
instruments and documents executed by Borrowers in connection therewith, and as
all of the foregoing may be amended, restated, supplemented or modified from
time to time in accordance with their terms, are collectively referred to herein
as the ("Loan Documents"):
WHEREAS, each Borrower is interested in the financial success
of the other Borrowers and each Borrower will directly and materially benefit
from the financial accommodations which Coast will extend to all Borrowers
pursuant to the Loan Documents; and
WHEREAS, in order to induce Coast to extend financial
accommodations to Borrower and in consideration thereof, Borrowers have agreed
to execute and deliver this Rider to Coast, which Rider shall be a rider to the
Loan Documents.
NOW, THEREFORE, the parties hereto agree as follows:
1. Each Borrower agrees that it is jointly and severally,
directly and primarily liable to Coast for payment in full of all amounts owing
to Coast under the Loan Documents, whether for principal, interest or otherwise
(collectively, the "Obligations") and that such liability is independent of the
duties, obligations, and liabilities of the other Borrowers. Coast may bring a
separate action or actions on each, any, or all of the Obligations against any
Borrower, whether action is brought against the other Borrowers or whether the
other Borrowers are joined in such action. In the event that any Borrower fails
to make any payment of any Obligations on or before the due date thereof, the
other Borrowers immediately shall cause such payment to be made or each of such
Obligation to be performed, kept, observed, or fulfilled.
2. The Loan Documents are a primary and original obligation of
each Borrower, are not the creation of a surety relationship, and are an
absolute, unconditional, and continuing promise of payment and performance which
shall remain in full force and effect without respect to future changes in
conditions, including any change of law or any invalidity or irregularity with
respect to the Loan Documents. Each Borrower agrees that its liability under the
Loan Documents shall be immediate and shall not be contingent upon the exercise
or enforcement by Coast of whatever remedies it may have against the other
Borrowers, or the enforcement of any lien or realization upon any security Coast
may at any time possess. Each Borrower consents and agrees that Coast shall be
under no obligation to marshal any assets of any Borrower against or in payment
of any and all of the Obligations.
3. Each Borrower acknowledges that it is presently informed as
to the financial condition of the other Borrowers and of all other circumstances
which a diligent inquiry would reveal and which bear upon the risk of nonpayment
of the Obligations. Each Borrower hereby covenants that it will continue to keep
informed as to the financial condition of the other Borrowers, the status of the
other Borrowers and of all circumstances which bear upon the risk of nonpayment.
Absent a written request from any Borrower to Coast for information, such
Borrower hereby waives any and all rights it may have to require Coast to
disclose to such Borrower any information which Coast may now or hereafter
acquire concerning the condition or circumstances of the other Borrowers.
4. The liability of each Borrower under the Loan Documents
includes Obligations arising, under successive transactions continuing,
compromising, extending, increasing, modifying, releasing or renewing the
Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Obligations, changing the
interest rate, payment terms, or other terms and conditions thereof, or creating
new or additional Obligations after prior Obligations have been satisfied in
whole or in part. To the maximum extent permitted by law, each Borrower hereby
waives any right to revoke its liability under the Loan Documents as to future
indebtedness, and in connection therewith, each Borrower hereby waives any
rights it may have under Section 2815 of the California Civil Code. If such
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a revocation is effective notwithstanding the foregoing waiver, each Borrower
acknowledges and agrees that (a) no such revocation shall be effective until
written notice thereof has been received by Coast, (b) no such revocation shall
apply to any Obligations in existence on such date (including, any subsequent
continuation, extension, or renewal thereof, or change in the interest rate,
payment terms, or other terms and conditions thereof), (c) no such revocation
shall apply to any Obligations made or created after such date to the extent
made or created pursuant to a legally binding commitment of Coast in existence
on the date of such revocation, (d) no payment by such Borrower or from any
other source prior to the date of such revocation shall reduce the maximum
obligation of the other Borrowers, hereunder, and (e) any payment by such
Borrower or from any source other than Borrowers, subsequent to the date of such
revocation, shall first be applied to that portion of the Obligations as to
which the revocation is effective and which are not, therefore, guaranteed
hereunder, and to the extent so applied shall not reduce the maximum obligation
of each Borrower hereunder.
5. (a) Each Borrower absolutely, unconditionally, knowingly,
and expressly waives:
(i) (1) notice of acceptance hereof; (2)
notice of any loans or other financial accommodations made or extended under the
Loan Documents or the creation or existence of any Obligations; (3) notice of
the amount of the Obligations, subject, however, to each Borrower's right to
make inquiry of Coast to ascertain the amount of the Obligations at any
reasonable time; (4) notice of any adverse change in the financial condition of
the other Borrowers or of any other fact that might increase such Borrower's
risk hereunder; (5) notice of presentment for demand, protest, and notice
thereof as to any instruments among the Loan Documents; (6) notice of any
unmatured event of default or event of default under the Loan Documents; and (7)
all other notices (except if such notice is specifically required to be given to
Borrowers hereunder or under the Loan Documents) and demands to which such
Borrower might otherwise be entitled.
(ii) its right, under Sections 2845 or 2850
of the California Civil Code, or otherwise, to require Coast to institute suit
against, or to exhaust any rights and remedies which Coast has or may have
against, the other Borrowers or any third party, or against any collateral for
the Obligations provided by the other Borrowers, or any third party. In this
regard, each Borrower agrees that it is bound to the payment of all Obligations,
whether now existing or hereafter accruing, as fully as if such Obligations were
directly owing to Coast by such Borrower. Each Borrower further waives any
defense arising by reason of any disability or other defense (other than the
defense that the Obligations shall have been fully and finally performed and
indefeasibly paid) of the other Borrowers or by reason of the cessation from any
cause whatsoever of the liability of the other Borrowers in respect thereof.
(iii) (1) any rights to assert against Coast
any defense (legal or equitable), set-off, counterclaim, or claim which such
Borrower may now or at any time hereafter have against the other Borrowers or
any other party liable to Coast; (2) any defense, set-off, counterclaim, or
claim, of any kind or nature, arising directly or indirectly from the present or
future lack of perfection, sufficiency, validity, or enforceability of the
Obligations or any security therefor; (3) any defense such Borrower has to
performance hereunder, and any right such Borrower has to performance hereunder,
and any right such Borrower has to be exonerated,
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provided by Sections 2819, 2822, or 2825 of the California Civil Code, or
otherwise, arising, by reason of. the impairment or suspension of Coast's rights
or remedies against the other Borrowers; the alteration by Coast of the
Obligations; any discharge of the other Borrower's obligations to Coast by
operation of law as a result of Coast's intervention or omission; or the
acceptance by Coast of anything in partial satisfaction of the Obligations; (4)
the benefit of any statute of limitations affecting such Borrower's liability
hereunder or the enforcement thereof, any act which shall defer or delay the
operation of any statute of limitations applicable to the Obligations shall
similarly operate to defer or delay the operation of such statute of limitations
applicable to such Borrower's liability hereunder.
(b) Each Borrower absolutely, unconditionally,
knowingly, and expressly waives any defense arising by reason of or deriving
from (i) any claim or defense based upon an election of remedies by Coast
including any defense based upon an election of remedies by Coast under the
provisions of Sections 590a 580b, 580d, and 726 of the California Code of Civil
Procedure or any similar law of California or any other jurisdiction; or (ii)
any election by Coast under Bankruptcy Code Section 1111(b) to limit the amount
of, or any collateral securing, its claim against the Borrowers. Pursuant to
California Civil Code Section 2856(b):
"Each Borrower waives all rights and
defenses arising out of an election of
remedies by the creditor; even though that
election of remedies, such as a nonjudicial
foreclosure with respect to security for a
guaranteed obligation, has destroyed such
Borrower's rights of subrogation and
reimbursement against the other Borrowers by
the operation of Section 580(d) of the
California Code of Civil Procedure or
otherwise."
If any of the Obligations at any time are secured by a mortgage or deed of trust
upon real property, Coast may elect, in its sole discretion, upon a default with
respect to the Obligations, to foreclose such mortgage or deed of trust
judicially or nonjudicial in any manner permitted by law, before or after
enforcing the Loan Documents, without diminishing or affecting, the liability of
any Borrower hereunder except to the extent the Obligations are repaid with the
proceeds of such foreclosure. Each Borrower understands that (a) by virtue of
the operation of California's antideficiency law applicable to nonjudicial
foreclosures, an election by Coast nonjudicial to foreclosure such a mortgage or
deed of trust probably would have the effect of impairing or destroying rights
of subrogation, reimbursement, contribution, or indemnity of such Borrower
against the other Borrowers or other Guarantors of sureties, and (b) absent the
waiver given by such Borrower, such an election would prevent Coast from
enforcing the Loan Documents against such Borrower. Understanding the foregoing,
and understanding that such Borrower is hereby relinquishing a defense to the
enforceability of the Loan Documents, such Borrower hereby waives any right to
assert against Coast any defense to the enforcement of the Loan Documents,
whether denominated "estoppel" or otherwise, based on or arising from an
election by Coast nonjudicial to foreclose any such mortgage or deed of trust.
Each Borrower understands that the effect of the foregoing waiver may be that
each Borrower may have liability hereunder for amounts with respect to which
such Borrower may be left without rights of subrogation, reimbursement,
contribution, or indemnity against the other Borrower or other guarantors or
sureties. Each
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Borrower also agrees that the "fair market value" provisions of Section 580a of
the California Code of Civil Procedure shall have no applicability with respect
to the determination of such Borrower's liability under the Loan Documents.
(c) Each Borrower hereby absolutely, unconditionally,
knowingly, and expressly waives: (i) any right of subrogation such Borrower has
or may have as against the other Borrowers with respect to the Obligations; (ii)
any right to proceed against the other Borrowers or any other person or entity,
now or hereafter, for contribution, indemnity, reimbursement, or any other
suretyship rights and claims, whether direct or indirect, liquidated or
contingent, whether arising under express or implied contract or by operation of
law, which such Borrower may now have or hereafter have as against the other
Borrowers with respect to the Obligations; and (iii) any night to proceed or
seek recourse against or with respect to any property or asset of the other
Borrowers.
(d) WITHOUT LIMITING THE GENERALITY OF ANY OTHER
WAIVER OR OTHER PROVISION SET FORTH IN THIS RIDER, EACH BORROWER HEREBY
ABSOLUTELY, KNOWINGLY, UNCONDITIONALLY, AND EXPRESSLY WAIVES AND AGREES NOT TO
ASSERT ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY
ONE OR MORE OF CALIFORNIA CIVIL CODE SECTIONS 2799, 2908, 2809, 2810, 2815,
2919, 2820, 2821, 2822, 2825, 2839, 2945, 2849, 2949, AND 2850, CALIFORNIA CODE
OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580c, 580d, AND 726, AND CHAPTER 2 OF
TITLE 14 OF THE CALIFORNIA CIVIL CODE.
6. Each Borrower consents and agrees that without notice to or
by such Borrower, and without affecting, or impairing the liability of such
Borrower hereunder, Coast may, by action or inaction:
(a) compromise, settle, extend the duration or the
time for the payment of, or discharge the performance of, or may refuse to or
otherwise not enforce the Loan Documents, or any part thereof, with respect to
the other Borrowers;
(b) release the other Borrowers or grant other
indulgences to the other Borrowers in respect thereof, or
(c) release or substitute any other guarantor, if
any, of the Obligations, or enforce, exchange, release, or waive any security
for the Obligations or any other guaranty of the Obligations, or any portion
thereof.
7. Coast shall have the right to seek recourse against each
Borrower to the fullest extent provided for herein, and no election by Coast to
proceed in one form of action or proceeding, or against any party, or on any
obligation, shall constitute a waiver of Coast's right to proceed in any other
form of action or proceeding or against other parties unless Coast has expressly
waived such right in writing. Specifically, but without limiting the generality
of the foregoing, no action or proceeding by Coast under the Loan Documents
shall serve to diminish
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the liability of any Borrower under this Rider except to the extent that Coast
finally and unconditionally shall have realized indefeasible payment by such
action or proceeding.
8. The Obligations shall not be considered indefeasibly paid
for purposes of this Rider unless and until all payments to Coast are no longer
subject to any right on the part of any person, including any Borrower, any
Borrower as a debtor in possession, or any trustee (whether appointed pursuant
to 11 U.S.C., or otherwise) of any Borrowers' assets to invalidate or set aside
such payments or to seek to recoup the amount of such payments or any portion
thereof, or to declare same to be fraudulent or preferential. Upon such full and
final performance and indefeasible payment of the Obligations, Coast shall have
no obligation whatsoever to transfer or assign its interest in the Loan
Documents to any Borrower. In the event that, for any reason, any portion of
such payments to Coast is set aside or restored, whether voluntarily or
involuntarily, after the making thereof, then the obligation intended to be
satisfied thereby shall be revived and continued in full force and effect as if
said payment or payments had not been made, and each Borrower shall be liable
for the full amount Coast is required to repay plus any and all costs and
expenses (including attorneys' fees and attorneys' fees incurred pursuant to 11
U.S.C.) paid by Coast in connection therewith.
9. Requests for advances under the Agreement may be made by
any Borrower, pursuant to the terms thereof. Each Borrower expressly agrees and
acknowledges that Coast shall have no responsibility to inquire into the
correctness of the apportionment or allocation of or any disposition by any of
Borrowers of (a) any advances or loans under the Agreement, or (b) any of the
expenses and other items charged to Borrowers pursuant to the Agreement. All
such advances and loans and such expenses and other items shall be made for the
collective, joint, and several account of Borrowers.
10. Each Borrower agrees and acknowledges that the
administration of the Agreement on a combined basis, as set forth in this Rider,
is being, done as an accommodation to Borrower and at their request, and that
Coast shall incur no liability to any of Borrowers as a result thereof. To
induce Coast to do so, and in condition thereof, each of Borrowers hereby agrees
to indemnify and hold Coast harmless from and against any and all liability,
expense, loss, damage, claim of damage, or injury, made against Coast by any of
Borrowers or by any other person or entity, arising from or incurred by reason
of such administration of the Agreement.
11. Each Borrower represents and warrants to Coast that the
collective administration of the loans is being undertaken by Coast pursuant to
this Rider because Borrowers are integrated in their operation and
administration and require financing on a basis permitting the availability of
credit from time to time to each of Borrowers. Each Borrower will derive
benefit, directly and indirectly, from such collective administration and
continued successful performance of the integrated group.
12. This Rider shall append and be part and parcel of the
Loan Documents; and this Rider shall be governed by and construed in accordance
with all of the terms of the Loan Documents.
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IN WITNESS WHEREOF, this Rider has been executed and delivered
as of the date first above written.
Borrower: Coast:
OCEAN OPTIQUE DISTRIBUTORS, INC. COAST BUSINESS CREDIT, a division of
Southern Pacific Thrift & Loan Association
By: /s/ XXXXXXX XXXXXX By: /s/ XXXXXX XXXXX
---------------------------- --------------------------------------
Xxxxxxx Xxxxxx, President Xxxxxx Xxxxx, Vice President
Borrower:
CLASSIC OPTICAL, INC.
By: /s/ XXXXXXX XXXXXX
----------------------------
Xxxxxxx Xxxxxx, President
Borrower:
EUROPEAN MANUFACTURERS AGENCY, INC.
By: /s/ XXXXXXX XXXXXX
----------------------------
Xxxxxxx Xxxxxx, President
Borrower:
SOLOVISION OPTICAL, INC.
By: /s/ XXXXXXX XXXXXX
----------------------------
Xxxxxxx Xxxxxx, President
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