EMERGING VISION INC - FORM 8-K - EX-10.3 - LIMITED WAIVER AND AMENDMENT

Attached files

file	filename
8-K - FORM 8-K APRIL 14, 2010 - EMERGING VISION INC	form8k.htm
EX-10.6 - REAFFIRMATION OF ABSOLUTE ASSIGNMENT OF FRANCHISEE NOTES. . . - EMERGING VISION INC	ex10_6.htm
EX-10.1 - NON-REVOLVING LINE OF CREDIT NOTE AND CREDIT AGREEMENT - EMERGING VISION INC	ex10_1.htm
EX-10.5 - REAFFIRMATION OF GUARANTY - EMERGING VISION INC	ex10_5.htm
EX-10.7 - CONTINUING GUARANTY (VISIONCARE) - EMERGING VISION INC	ex10_7.htm
EX-10.8 - CONTINUING GUARANTY (COMBINED) - EMERGING VISION INC	ex10_8.htm
EX-10.4 - REAFFIRMATION OF GENERAL SECURITY AGREEMENT - EMERGING VISION INC	ex10_4.htm
EX-10.9 - GENERAL SECURITY AGREEMENT (VISIONCARE) - EMERGING VISION INC	ex10_9.htm
EX-10.2 - LIBOR TERM NOTE - EMERGING VISION INC	ex10_2.htm
EX-10.12 - ASSIGNMENT OF RENTS AND SUBLEASES - EMERGING VISION INC	ex10_12.htm
EX-10.10 - TRADEMARK SECURITY AGREEMENT - EMERGING VISION INC	ex10_10.htm
EX-10.11 - ASSIGNMENT OF FRANCHISEE NOTES AND PROCEEDS DUE - EMERGING VISION INC	ex10_11.htm

As of March 31, 2010

Emerging Vision, Inc.

520 Eighth Avenue, 23rd Floor

New York, New York 10018

Attn: Glenn Spina, President & Chief Executive Officer

Re:

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")

Dear Mr. Spina:

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. Borrower 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/ Tamra Postiglione

Name: Tamra Postiglione

Title: Vice President

ACKNOWLEDGED AND AGREED TO BY:

“BORROWER”

EMERGING VISION, INC.

By: /s/ Glenn Spina

Glenn Spina, President & Chief Executive Officer

AGREED, CONSENTED TO AND RATIFIED BY:

"GUARANTORS"

OG ACQUISITION, INC.

By: /s/ Glenn Spina

Glenn Spina, Chief Executive Officer

COMBINE BUYING GROUP, INC.

By: /s/ Glenn Spina

Glenn Spina, Chief Executive Officer

1725758 ONTARIO INC. D/B/A THE OPTICAL GROUP

By: /s/ Glenn Spina

Glenn Spina, Chief Executive Officer

VISIONCARE OF CALIFORNIA D/B/A STERLING VISIONCARE

By: /s/ Glenn Spina

Glenn Spina, Chief Executive Officer

EMERGING BUSINESS BROKERAGE, INC.

By: /s/ Glenn Spina