As of March 31, 2010 Emerging Vision, Inc.
As of March 31, 2010
Emerging Vision, Inc.
000 Xxxxxx Xxxxxx, 00xx Floor
New York, New York 10018
Attn: Xxxxx Xxxxx, President & Chief Executive Officer
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Re:
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M&T Bank with Emerging Vision, Inc. (the "Borrower")
Limited Waiver and Amendment to Revolving Line of Credit made available by M&T
Bank to the Borrower (the "Line of Credit” or the “Loan")
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Dear Xx. Xxxxx:
Manufacturers and Traders Trust Company (the "Bank") agreed to make available to the Borrower the Line of Credit pursuant to which the Borrower and the Bank entered into that certain Revolving Line of Credit Note and Credit Agreement dated as of August 7, 2007 (the “Note”) as same was amended by certain Waiver and Amendment Letters prior hereto (collectively, the "Amendment").
You have requested that, in conjunction with the modification of the Note being done contemporaneously herewith, to be evidenced, among other documents, by a restated note (the “Restated Note”), the Bank waive (i) the Financial Reporting requirement under Paragraph (a) of the “FINANCIAL STATEMENTS” Section of the Note, which states that the Borrower shall deliver to the Bank (a) Annual audited signed Financial Statements of the Borrower prepared by a Certified Public Accountant (“CPA”) acceptable to the Bank within ninety (90) days after the end of each fiscal year, for fiscal year ended 12/31/09 only; and (ii) the Financial Covenant requirements under Paragraph (h) of the “AFFIRMATIVE COVENANTS” Section of the Note for the 4th quarter of 2009 and replace them with the new Financial Covenants set forth in the Restated Note.
The Bank has agreed to the above request SUBJECT TO THE FOLLOWING CONDITIONS PRECEDENT.
CONDITIONS TO EFFECTIVENESS OF WAIVER. The effectiveness of this Limited Waiver and Amendment shall be subject to the satisfaction of the following conditions precedent:
(a) Reduction of Outstanding Principal Payment. The Borrower shall have paid a principal payment in the amount of Two Hundred Thousand and 00/100 Dollars ($200,000.00) to the Lender to reduce the outstanding balance under Borrower’s line of credit;
(b) Payment of Extension Fee. The Borrower shall have paid an Extension Fee in the amount of Thirty Five Thousand and 00/100 Dollars ($35,000.00) to the Lender in consideration of Lender’s agreement to granting this Limited Waiver and the Restated Note;
(c) Payment of Attorneys Costs. The Borrower shall have paid Attorney Costs of the Lender in connection with the preparation and negotiation of this Limited Waiver and all Loan Documents in connection with the extension and modification of Borrower’s Loans;
(d) Executed Loan Documents. Receipt by the Lender of all duly executed Loan Documents in connection with the extension and modification of Borrower’s Loans, which Loan Documents provide for the conversion of Borrower’s Line of Credit to a Non-Revolving Line of Credit in the amount of $4,251,921.13 and a Term Loan in the amount of $1,000,000, with no further advances available and payable as set forth therein, each having a maturity date of April 30, 2011;
(e) Representations and Warranties. The representations and warranties set forth in the Loan Documents shall be true and correct as of the date hereof; and
(f) Annual Financial Statements. Xxxxxxxx agrees to deliver to the Bank the Annual audited signed Financial Statements of the Borrower for fiscal year ended 12/31/09 prepared by a Certified Public Accountant (“CPA”) acceptable to the Bank and its annual 10 K by April 30, 2010.
LIMITED WAIVER:
Providing the above conditions precedent are fully satisfied, the Bank hereby agrees to waive (i) the requirements of Paragraph (h) of the “AFFIRMATIVE COVENANTS” Section of the Note, which sets forth the Financial Covenants requirements under the terms of the Loan, for the quarter ended 12/31/09 only, and (ii) the requirements of Paragraph (a) of the “FINANCIAL STATEMENTS” Section of the Note for fiscal year ended 12/31/09 only, provided, however, Borrower must deliver the Annual audited signed Financial Statements of the Borrower prepared by a Certified Public Accountant (“CPA”) acceptable to the Bank and its annual 10 K within one hundred twenty (120) days after the end of fiscal year ended 12/31/09 (April 30, 2010).
AMENDMENT:
Pursuant to your request, providing the above conditions precedent are fully satisfied, the Bank agrees to modify the Paragraph (h) Financial Covenants requirements to hereafter read as set forth in the Restated Note.
All other terms, conditions, definitions and provisions of the Note remain unchanged and in full force and effect.
Please be aware that this Limited Waiver and Amendment pertains only to the matters and fiscal periods specifically set forth herein and it pertains only to the specific terms of the Note set forth herein. All other terms, conditions, definitions and provisions of the Note not specifically and expressly amended hereby and all terms, conditions, definitions and provisions of all other loan documents executed and delivered in connection with the Loan remain in full force and effect during the term of this waiver and thereafter.
(Signature pages follow)
MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking institution
By: /s/ Xxxxx Xxxxxxxxxxx
Name: Xxxxx Xxxxxxxxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED TO BY:
“BORROWER”
EMERGING VISION, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx, President & Chief Executive Officer
AGREED, CONSENTED TO AND RATIFIED BY:
"GUARANTORS"
OG ACQUISITION, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx, Chief Executive Officer
COMBINE BUYING GROUP, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx, Chief Executive Officer
1725758 ONTARIO INC. D/B/A THE OPTICAL GROUP
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx, Chief Executive Officer
VISIONCARE OF CALIFORNIA D/B/A STERLING VISIONCARE
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx, Chief Executive Officer
EMERGING BUSINESS BROKERAGE, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
EMERGING VISION KING OF PRUSSIA, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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EMERGING VISION USA, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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EV ACQUISITION, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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EV CONTACTS, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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INSIGHT IPA OF NEW YORK, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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OPTI-CAPITAL, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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SINGER SPECS OF XXXXXXXXXXXX, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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SINGER SPECS, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF BAYSHORE, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF CHAUTAUQUA, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF COLLEGE POINT, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF COMMACK, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF CP, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF CROSSGATES MALL, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF GRAND FORKS, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF HUNTINGTON, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF XXXXXXX, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF JEFFERSON VALLEY, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF LAVALE, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF NEWBURGH, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF ROCKAWAY, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF WARMINSTER, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF XXXXX, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF WEST HEMPSTEAD, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF XXXXXXXXXXXX, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING OPTICAL OF W.P ROAD, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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XXXXXXXX U.S.A, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION BOS, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION DKM, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF 794 LEXINGTON, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF AVIATION MALL, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF ANNAPOLIS, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF XXXXX MALL, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF BEAVER DAM, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF XXXXXXXX, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF BROOKFIELD SQUARE, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF CALIFORNIA, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF CAMBRIDGE SQUARE, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF CAMP HILL, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF XXXXXXX PARK, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF COLUMBIA MALL, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF DELAFIELD, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF DULLES, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF EAST ROCKAWAY, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF FAIR OAKS, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF XXXXXX ST., INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF GREEN ACRES, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF HAGERSTOWN, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF HEMPSTEAD, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF IRONDEQUOIT, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF ISLANDIA, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF XXXXXXX CITY, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF KENOSHA, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF M STREET, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF MENLO PARK, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF XXXXXXXXXX MALL, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF MYRTLE AVE., INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF NANUET, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF NEWPARK, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF OLEAN, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF ONTARIO XXXXX, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF XXXXXX XXXXX, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF PARAMUS PARK, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF POTOMAC XXXXX, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF SOUTH TOWN PLAZA, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF SPOTSYLVANIA, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF STATEN ISLAND, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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STERLING VISION OF WESTMINSTER, INC.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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VISIONCARE OF CALIFORNIA
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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VISION OPTICAL CO.
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By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, Its President & Chief Executive Officer
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