EXHIBIT 10.52
NINTH LOAN MODIFICATION AGREEMENT
THIS NINTH LOAN MODIFICATION AGREEMENT (the "Agreement") is made as of the
23rd day of June, 2004, by and among:
CADLEROCK JOINT VENTURE, L. P. ("CadleRock"), an Ohio limited partnership
with a principal place of business at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxx, XX
00000-0000;
SIGHT RESOURCE CORPORATION (hereinafter, "Sight Resource"), a Delaware
corporation with a principal place of business at 0000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000;
CAMBRIDGE EYE ASSOCIATES, INC. (hereinafter, "Cambridge Eye"), a Delaware
corporation with a principal place of business at Xxx Xxxxxxxx Xxxxxx, Xxxx 0X,
Xxxxxx, XX 00000
XXXXXXX VISION WORLD, INC. (hereinafter, "Xxxxxxx Vision"), a Delaware
corporation with a principal place of business at Xxx Xxxxxxxx Xxxxxx, Xxxx 0X,
Xxxxxx, XX 00000;
X. X. XXXXX OPTICIANS, INC. (hereinafter, "X. X. Xxxxx"), a Delaware
corporation with a principal place of business at 0000 Xxxx 00xx Xxxxxx,
Xxxxxxxxx, XX 00000-0000;
EYEGLASS EMPORIUM, INC. (hereinafter, "Eyeglass Emporium"), a Delaware
corporation with a principal place of business at c/o Sight Resource
Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000;
KENT EYES, INC. f/k/a KENT OPTICAL COMPANY (hereinafter, "Kent Optical"), a
Delaware corporation with a principal place of business at c/o Sight Resource
Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000;
SHAWNEE OPTICAL, INC. (hereinafter, "Shawnee Optical"), a Delaware
corporation with a principal place of business at c/o Sight Resource
Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000;
VISION PLAZA CORP. (hereinafter, "Vision Plaza"), a Delaware corporation
with a principal place of business at 0000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx
00X, Xxxxxxxx, XX 00000-0000;
KENT OPTOMETRIC PROVIDERS, INC. f/k/a KENT OPTOMETRIC PROVIDERS P.C.
(hereinafter, "Kent PC"), a Michigan professional corporation with a principal
place of business at c/o Sight Resource Corporation, 0000 Xxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000;
Hereinafter, Sight Resource, Cambridge Eye, Xxxxxxx Vision, X. X. Xxxxx,
Eyeglass Emporium, Kent Optical, Shawnee Optical, Vision Plaza, and Kent PC and
shall be referred to individually and collectively, jointly, and severally, as
the "Obligors" or the "Obligor."
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R E C I T A L S
A. Reference is hereby made to certain loan arrangements (hereinafter, the
"Loan Arrangements") entered into by and between Sight Resource, Cambridge Eye,
Xxxxxxx Vision, X. X. Xxxxx, Eyeglass Emporium, Kent Optical, Shawnee Optical,
Vision Plaza (hereinafter, individually and collectively, the "Original
Borrowers") and Fleet National Bank (as successor-in-interest to Sovereign Bank,
as successor-in-interest to Fleet National Bank, hereinafter referred to as
"Fleet"), evidenced by, among other things, the following documents,
instruments, and agreements (hereinafter collectively, together with this
Agreement and all documents, instruments, and agreements executed incidental
hereto, and contemplated hereby, the "Loan Documents"):
1. Loan Agreement (hereinafter, as amended, the "Loan Agreement")
dated April 15, 1999, entered into by and between Fleet and the Original
Borrowers;
2. Secured Revolving Line Note (hereinafter, the "Revolving Note")
dated April 15, 1999 in the maximum principal amount of $3,000,000.00 made by
the Original Borrowers payable to Fleet;
3. Secured Term Note (hereinafter, the "Term Note") dated April 15,
1999 in the original principal amount of $7,000,000.00 made by the Original
Borrowers payable to Fleet;
4. (i) Eight (8) Security Agreements (All Assets) dated April 15, 1999
respectively, by each of the Original Borrowers, as amended and confirmed by
certain Ratifications and Amendments of Security Agreements dated January 31,
2002, and (ii) Security Agreement (All Assets) dated July 31, 2002 by Kent PC
(hereinafter, collectively, the "Security Agreements"), pursuant to which each
of the Obligors granted Fleet a security interest in the Collateral (as defined
in the Security Agreements);
5. Security Agreement (Pledged Collateral) dated April 15, 1999,
pursuant to which Sight Resource assigned, transferred, and delivered to Fleet
all of the Collateral (as defined therein);
6. Modification Agreement (hereinafter, the "Modification Agreement")
dated March 31, 2000 entered into by Fleet and the Original Borrowers;
7. Second Modification Agreement (hereinafter, the "Second
Modification Agreement") dated November 30, 2000 entered into by Fleet and the
Original Borrowers;
8. Amended and Restated Third Modification Agreement (hereinafter, the
"Third Modification Agreement") dated May 14, 2001 entered into by Fleet and the
Original Borrowers;
9. Fourth Modification Agreement (hereinafter, the "Fourth
Modification Agreement") dated July 31, 2002 entered into by Fleet and the
Obligors, pursuant to which, among other things, Kent PC became co-borrower with
the Original Borrowers under the Loan Documents, as amended, and became jointly
and severally liable with the Original Borrowers for all Obligations under the
Loan Documents, as amended;
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10. Fifth Modification Agreement (hereinafter, the "Fifth Modification
Agreement") dated November 15, 2002 entered into by Fleet and the Obligors;
11. Sixth Loan Modification Agreement (hereinafter, the "Sixth
Modification Agreement" dated December 27, 2002 entered into by CadleRock, as
successor to Fleet, and the Obligors;
12. Seventh Loan Modification Agreement (hereinafter, the "Seventh
Modification Agreement") dated December, 2003 entered into by CadleRock, as
successor to Fleet, and the Obligators;
13. Eighth Loan Modification Agreement (hereinafter, the "Eighth
Modification Agreement") dated June 23, 2004 entered into by CadleRock, as
successor to Fleet, and the Obligors; and
14. Common Stock Purchase Warrant dated March 31, 2000 issued by Sight
Resource in favor of Fleet.
B. The outstanding principal balance owing by the Obligors to CadleRock
under the Loan Documents as of the date hereof is $233,944.45. Accrued interest
as of this date is $388.89 (hereinafter, "Accrued Interest"). Such outstanding
principal balance plus all Accrued Interest, late charges, penalties, fees,
expenses and other amounts owing by the Obligors or any of them under or in
respect of the Loan Documents are collectively hereinafter referred to as the
"Existing Total Indebtedness," and as of this date, total $234,333.34.
C. The Obligors and CadleRock have determined that it would be in their
mutual best interests for CadleRock to advance to the Obligors $275,000.00 under
the Revolving Note in order to provide additional financing to the Obligors for
use in connection with their reorganization proceedings under chapter 11 of
title 11 of the United States Code.
D. The Obligors are willing to borrow an additional $275,000.00 under the
Revolving Note and CadleRock is willing to increase the Total Indebtedness as
contemplated by the preceding paragraph based upon, and in consideration of, the
terms and conditions stated herein as follows:
1. Increase in Revolving Note. Upon the execution hereof, CadleRock shall
make an Advance (as defined in the Loan Agreement) to the Obligors under and,
except as otherwise provided herein, pursuant to the terms of, the Revolving
Note in the amount of $275,000.00 and the Obligors hereby shall be deemed to
have provided CadleRock with a "Notice of Borrowing" in that amount.
2. Repayment of Advance. Notwithstanding anything to the contrary in the
Loan Agreement, the Revolving Note or any of the other Loan Documents, the
Obligors jointly and severally shall repay the $275,000.00 advance, plus
interest thereon at the non-default rate specified in the Revolving Note, in ten
(10) equal installments of principal and interest beginning on July 6, 2004 and
continuing on the next nine weekly anniversaries of such date until paid in
full.
3. New Total Indebtedness. Effective upon receipt by the Obligors of the
$275,000 advance, the principal amount of the Existing Total Indebtedness shall
be increased to $508,944,45 (the "New Total Indebtedness").
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4. Acknowledgment by Obligors. Subject to and as modified by this
Agreement, the Obligors each hereby (a) acknowledge the validity and
enforceability of the Loan Documents, and (b) acknowledge and agree that they
have no offsets, defenses, claims or counterclaims against CadleRock as holder
of the Loan Documents. Each Obligor hereby ratifies, confirms and agrees that,
except as modified by this Agreement, all terms and conditions of the Loan
Documents shall remain in full force and effect.
5. Further Assurances. The Obligors shall, upon request by CadleRock from
time to time after execution of this Agreement, execute and deliver to CadleRock
such additional documents, instruments and agreements as CadleRock may
reasonably request in order to vest or perfect the Loan Documents (as modified
hereby) and the collateral granted therein more securely in CadleRock.
6. Indemnification/Hold Harmless. The Obligors hereby indemnify and hold
harmless CadleRock, their partners, directors, officers and stockholders and the
successors and assigns of all of them (collectively the "Indemnitees") from,
against and in respect of any claim by the Obligors or any other person to the
effect that, the Obligors, or any person claiming by, through or under any of
them, has any claim of any type against the Indemnitees for any action taken or
not taken by the Indemnitees prior to this date. The Obligors hereby release and
discharge Indemnitees from any such and all such claims, and the Obligors
further agree to indemnify and hold harmless Indemnitees against any and all
such claims and to pay Indemnitees' attorney fees and costs in the defense of
same.
7. Acknowledgement of Payment Obligation. Notwithstanding anything to the
contrary contained in this Agreement, the Existing Total Indebtedness shall
remain due and payable in full on June 30, 2004, after which interest shall
accrue thereon at the default interest rate as stated in the Sixth Modification
Agreement.
8. No Waiver of Existing Defaults. Any defaults, events of defaults or
existing matters that with the passage of time would mature into a default under
the Loan Documents prior to the date of this Agreement are not waived and shall
be in full force and effect.
9. Miscellaneous.
(a) This Agreement and the other documents referred to herein contain
the entire Agreement among the parties with respect to the transactions
contemplated hereby, and supersede all negotiations, representations,
warranties, commitments and offers whether oral or written, prior to the date
hereof.
(b) No modification or amendment of any provision of this Agreement
shall be effective unless made in a written instrument, duly executed by the
party to be bound thereby, which refers specifically to this Agreement and
states that an amendment or modification is being made in the respects set forth
in such instrument.
(c) If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the provisions shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. This Agreement is, and shall be
deemed to be, the product of joint drafting by the
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parties hereto and shall not be construed against any of them as the drafter
hereof.
(d) This Agreement shall be binding upon and shall inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. No assignment of this Agreement shall, however, relieve
the assigning party of its obligations hereunder.
(e) This Agreement shall be governed by and construed and enforced
with accordance with the laws of the State of Ohio as applicable to contracts
executed and fully performed in the State of Ohio.
(f) No waiver of any provision of this Agreement shall be effective
unless in writing. The waiver by any party of a breach of this Agreement shall
not operate or be construed as a waiver of any subsequent breach.
(g) The captions contained in this Agreement have been inserted for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(h) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. With regard to this
Agreement, and any other document relating to the transactions to be consummated
under this Agreement, a party's execution may be evidenced by, and a party's
delivery may be effected by, facsimile transmission.
(i) Each party hereto represents and warrants that it has full
authority to execute this agreement, that the representative executing this
agreement on its behalf has full authority to do so, that upon the execution
hereof, this agreement becomes fully binding on such party and enforceable
against such party in accordance with the terms hereof and that no party is
under any restriction of any kind against the execution of this agreement or the
performance of any obligation stated herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first stated above.
[Signatures Continued on Separate Page]
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CADLEROCK JOINT VENTURE, L. P. SIGHT RESOURCE CORPORATION
By: CadleRock, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxxxx
Title: Vice President Title: Chief Financial Officer
CAMBRIDGE EYE ASSOCIATES, INC. XXXXXXX VISION WORLD, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
X. X. XXXXX OPTICIANS, INC. EYEGLASS EMPORIUM, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
KENT EYES, INC. f/k/a SHAWNEE OPTICAL, INC.
KENT OPTICAL COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
VISION PLAZA CORP. KENT OPTOMETRIC PROVIDERS, INC,
f/k/a KENT OPTOMETRIC PROVIDERS, P.C.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
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