EXHIBIT (b)(2)
FIRST AMENDMENT
TO
MARKETING AGREEMENT
This First Amendment to Marketing Agreement (the "First Amendment"),
dated as of the 30th day of October, 2002, is by and between U.S. Vision, Inc.,
a Delaware corporation ("USV") and Sola International, Inc., a Delaware
corporation ("Sola").
The following recitals are true and constitute the basis of this
Amendment:
A. USV and Sola entered into that certain Marketing Agreement dated
October 2, 2000 (the "Marketing Agreement");
B. USV and Sola desire to extend the term of the Marketing
Agreement, as well as provide for certain extended payment terms
to USV for products purchased by USV from Sola; and
C. USV and Sola desire to enter into this First Amendment to
memorialize the terms and conditions of the extended term and
payment terms.
NOW, THEREFORE, for and in consideration of the terms and conditions
set forth herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, all
capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Marketing Agreement.
SECTION 2. AMENDMENTS.
Section 1.2 of the Marketing Agreement is hereby amended by deleting
that section in its entirety and replacing it with the following new section
1.2:
1.2 Term of Agreement. The term of this Agreement will begin on October
1, 2000, (the "Effective Date") and will end on November 1, 2007 (the
"Term"), unless extended by the mutual agreement of the parties or
terminated early by either party in accordance with Article V of this
Agreement.
Section 2.1(e) of the Marketing Agreement is hereby amended by deleting
that section in its entirety and replacing it with the following new section
2.1(e):
(e) Terms. USV shall be invoiced for such lenses at the time of
delivery, and invoices from Sola shall be due and payable in full
by the 30th day after the statement date; provided, however, that
all invoices for lenses purchased by USV from Sola, the dollar
value of which shall not exceed $4,000,000 (after the application
of all rebates and marketing costs advances), that are issued by
Sola after May 31, 2002, and prior to the consummation of the
proposed merger of Kayak Acquisition Corp. with and into USV
pursuant to the terms and conditions of that certain Agreement
and Plan of Merger dated as of May 14, 2002, by and between USV
and Kayak Acquisition Corp. (the "Going Private Transaction")
shall not be due and payable by USV to Sola until the 90th day
after the first to
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occur of either (i) the expiration of the Term or (ii) the early
termination of this Agreement (the "Deferred Account Payable");
provided, however, that notwithstanding the foregoing, the
payment of the Deferred Account Payable shall be subject to the
terms of the Subordination Agreement of even date herewith by and
among USV, Sola and Commerce Bank, N.A, a copy of which is
attached hereto as Exhibit A (the "Subordination Agreement"). USV
and Sola agree to include the repayment of the Deferred Account
Payable as one of the terms to be negotiated in connection with
any potential renewal of this Agreement. All amounts outstanding
under the Deferred Account Payable shall bear interest at the
rate of 6% per annum (the "Base Rate"), which shall be added to
the Deferred Account Payable and be payable quarterly, until paid
in full; provided, however, the Base Rate shall be increased to
11% per annum if the principal amount of the Deferred Account
Payable shall become due and payable prior to the Termination
Date (as such term is defined in the Subordination Agreement).
USV may at its option prepay at any time all or any portion of
the Deferred Account Payable without premium or penalty. If at
the time of the consummation of the Going Private Transaction the
amount of the Deferred Account Payable is less than $4,000,000,
Sola shall pay to USV in immediately available funds an amount
equal to the difference between $4,000,000 and the then current
balance of the Deferred Account Payable (the "Rebate").
Additional terms are set forth in Exhibit B.
The Marketing Agreement is hereby amended by adding the following new
Section 2.1(h) to the Marketing Agreement:
(h) Board Observer. So long as any amount of the Deferred Account
Payable remains outstanding and unpaid by USV, Sola shall be
entitled to appoint one observer to the USV Board (the "Board
Observer"). The Board Observer shall be entitled to notice of and
to attend all meetings of USV's entire Board of Directors, but
shall not have any voting or other rights in that capacity.
The Marketing Agreement is hereby amended by adding the following new
Section 2.1(i) to the Marketing Agreement:
(i) Product Development; Promotions. USV and Sola hereby covenant and
commit that, from time to time during the term of this Agreement,
USV and Sola will work together to promote new and existing
optical products beneficial to both parties. These activities may
include, but are not limited to, USV's purchase of certain
optical products from Sola on a discounted basis and the joint
promotion of those products to the mutually benefit of USV and
Sola. USV and Sola agree that the initial opportunity to be
pursued relates to a photochronic product offering designed to
increase USV's market share in this product category.
The addresses and contact persons for Sola in Section 6.2 of the
Marketing Agreement are hereby amended by deleting them in their entirety and
replacing them with the following:
In the case of Sola: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President and CFO
Torrey View Corporate Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and CEO
Torrey View Corporate Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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SECTION 3. REFERENCES. From and after the date of effectiveness of the
amendments provided in this First Amendment, all references to the Marketing
Agreement shall be deemed to be references to the Marketing Agreement as amended
hereby.
SECTION 4. EFFECTIVENESS OF THIS FIRST AMENDMENT; CONDITIONS TO FIRST
AMENDMENT. This First Amendment shall not be effective until the consummation of
the Going Private Transaction and the contemporaneous payment by Sola of the
Rebate, if any, to USV.
SECTION 5. ENTIRE AGREEMENT; RATIFICATION. This First Amendment
embodies the entire agreement of the parties and supersedes any prior agreements
or understandings with respect to the subject matter hereof. Except as modified
or supplemented in connection herewith, the Marketing Agreement shall continue
in full force and effect.
SECTION 6. COUNTERPARTS. This First Amendment may be executed in any
manner of counterparts, all of which taken together shall constitute one and the
same instrument. In making proof hereof, it shall not be necessary to produce or
account for any counterpart other than one signed by the party against which
enforcement is sought.
SECTION 7. NO ORAL AGREEMENTS. THIS FIRST AMENDMENT, TOGETHER WITH THE
MARKETING AGREEMENT, REPRESENTS THE FINAL AGREEMENT BETWEEN AND AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES
HERETO.
***Remainder Intentionally Left Blank***
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IN WITNESS WHEREOF, this First Amendment is executed as of the
date first set forth above.
U.S. VISION, INC. SOLA INTERNATIONAL, INC.
By: /s/ By: /s/
--------------------------------- --------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, EVP and CFO
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SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement") is made as of October
30, 2002, by and among U.S. VISION, INC. ("U.S. Vision"), STYL-RITE OPTICAL MFG.
CO., INC., USV OPTICAL, INC., U.S. VISION HOLDINGS, INC. (collectively, the
"Borrowers"), COMMERCE BANK, N.A. (the "Lender"), and SOLA INTERNATIONAL INC.
("Creditor").
BACKGROUND
A. The Borrowers have requested that the Lender extend credit to the
Borrowers, and the Lender has agreed to extend such credit facilities, all upon
the terms, conditions and provisions as set forth in that certain Loan and
Security Agreement of even date herewith among the Borrowers and Lender (the
"Loan Agreement"). Any capitalized term used herein without definition shall
have the meaning ascribed thereto in the Loan Agreement.
B. Pursuant to the terms and subject to the conditions set forth in the
Loan Agreement, Lender agreed to provide to Borrowers the following: (i) a Line
of Credit in an amount not to exceed at any time the Maximum Available Credit,
which Line of Credit is evidenced by that certain Line of Credit Note of even
date herewith by Borrowers in favor of Lender; and (ii) a Term Loan (together
with the Line of Credit, the "Senior Credit Facilities") in the amount of
Fifteen Million ($15,000,000) Dollars, which Term Loan is evidenced by that
certain Term Note of even date herewith by Borrowers in favor of Lender (the
"Term Note," and together with the Line of Credit Note, the "Senior Notes").
C. As collateral security for the Senior Obligations (as hereinafter
defined), pursuant to the terms and subject to the conditions set forth in the
Loan Agreement, and each other agreement or writing pursuant to which the
Borrowers or any of their respective subsidiaries, pledge, grant, ratify and
confirm a first lien on, and security interest in, all of the collateral
securing the Senior Obligations (collectively, the "Senior Security Documents"),
Borrowers granted to the Lender, first priority liens on, and security interests
in substantially all assets of the Borrowers (collectively, the "Collateral").
The agreements, documents and instruments evidencing or securing the Senior
Credit Facilities are hereinafter collectively referred to as the "Senior Loan
Documents."
D. As a condition precedent to the agreement of the Lender to enter
into and perform under the Senior Loan Documents and to extend to the Borrowers
the Senior Credit Facilities, as more particularly described therein, the Lender
has required that the Creditor, with the acknowledgment of the Borrowers, agree
to subordinate the rights of the Creditor under the Creditor Provisions (as
defined below) to the rights of the Lender under the Senior Loan Documents
pursuant to this Agreement. Creditor will benefit from the financing
arrangements among Lender and Borrowers, as more particularly described in the
Senior Loan Documents.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, covenant and agree, upon consummation of the Going Private Transaction
(as defined in the Marketing Agreement) as follows:
1. Certain Definitions.
1.1 "Creditor Provisions" shall mean Section 2.1(e) of the
Marketing Agreement dated as of October 2, 2000, as amended on October 30, 2002,
by and between U.S. Vision, Inc. and Creditor (the "Marketing Agreement").
1.2 "Obligations of Borrowers to Creditor" shall mean the
obligations of the Borrowers to Creditor under the Creditor Provisions, the
maximum principal amount of which shall not exceed $4,000,000.
1.3 "Senior Obligations" shall mean the following obligations of
the Borrowers to the Lender, whether outstanding on the date hereof or hereafter
incurred, including, without limitation, any indebtedness of Borrowers to others
which Lender may acquire by assignment or otherwise, and any other existing or
future indebtedness in favor of Lender, whether matured or unmatured, direct or
contingent, joint or several, including, without limitation, any extensions,
modifications, renewals thereof and substitutions therefor and any refinancing
of or increases to, any such indebtedness: (a) all existing and future debts,
liabilities and obligations of the Borrowers in favor of Lender including,
without limitation, those incurred pursuant to the Senior Loan Documents,
including the principal amount of, and accrued interest (including, without
limitation, any interest which accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency or
reorganization of any of the Borrowers, whether or not allowed as an enforceable
claim against any of the Borrowers pursuant to applicable bankruptcy, insolvency
or reorganization laws) on, the Senior Notes and all indebtedness, liabilities
and obligations of the Borrowers in respect thereof; and (b) all other
indebtedness, obligations and liabilities (including fees and expenses) of
Borrowers to Lender now existing or hereinafter incurred, whether created under
or with respect to the Senior Loan Documents or otherwise, including as to both
clauses (a) and (b) of this Section 1.3, without limitation, (i) any interest
thereon which accrues after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency or reorganization of any of the
Borrowers, whether or not allowed as an enforceable claim against any Borrower
pursuant to applicable bankruptcy, insolvency or reorganization laws, or (ii)
any advances by the Lender which exceed the aggregate face amount of the Senior
Notes or any other instruments evidencing any of the Senior Obligations, or
which are made after the occurrence of a default, violation or event of default
under the Loan Agreement or any other agreement among Borrowers and Lender, and
any refinancing of, or increases to, any of the indebtedness described as Senior
Obligations. Notwithstanding the foregoing, the maximum principal amount of
indebtedness constituting "Senior Obligations" under this Agreement shall not
exceed Thirty-Two Million Five Hundred Thousand Dollars ($32,500,000), plus all
costs of collection and any expenses incurred to (i) protect or defend the
Collateral or (ii) with respect to the exercise of any remedies to enforce or
collect the Senior Obligations.
1.4 "Termination Date" shall mean the first to occur of either (i)
November 1, 2007 or (ii) the date that Lender is paid the Senior Obligations.
2. Confirmation of Obligations of Borrowers to Creditor and Lender.
Borrowers and Creditor hereby acknowledge and confirm that as of the date
hereof, no amounts are currently due or owing under the Obligations of Borrowers
to Creditor.
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3. Subordination. Until the Termination Date, Creditor hereby
subordinates in favor of Lender all Obligations of Borrowers to Creditor and all
claims and demands for payment arising therefrom to all of the Senior
Obligations and agrees that, except as provided below in Section 5.3, Lender
shall first be paid all of the Senior Obligations, with interest as accrues
thereon and any costs and expenses of collection thereof, in accordance with the
terms thereof and the requirement that Lender make Advances to the Borrowers
under the Loan Agreement shall be terminated before Creditor shall be paid any
sums due on Obligations of Borrowers to Creditor. Creditor further agrees that,
subject to the limitation on Senior Obligations provided for in Section 1.3,
Lender may, at any time and from time to time, renew, extend, modify, amend,
substitute or alter the time of payment or maturity of, or waive the right to
enforce the Senior Obligations, or any part thereof, or release or compromise
the terms thereof, and that Lender may make new loans, advances and extensions
of credit to or for the benefit of the Borrowers, which will be deemed to be
included in the Senior Obligations or the Senior Obligations may be refinanced
by the Lender, or otherwise, so long as such refinancing does not increase the
annual amortization of the principal of the Senior Obligations which constitute
term loans, all without in any way impairing the subordination and standstill
provisions set forth herein which shall remain in full force and effect without
any further act of Creditor. Lender shall notify Creditor in writing within 14
days of each of the events referred to in the preceding sentence; provided,
however, that the failure to do so shall not impair in any manner the
subordination of the Obligations of Borrowers to Creditor to the Senior
Obligations, as set forth in this Section 3.
4. Creditor's Representations, Warranties and Covenants. Creditor
warrants and represents that it holds no collateral security for Obligations of
Borrowers to Creditor or otherwise, and agrees that in the event that any
collateral security is acquired or any payment is made by any Borrower in
respect of Obligations of Borrowers to Creditor prior to the Termination Date
and in contravention of the terms of this Agreement, the same shall be held in
express trust by Creditor for Lender and shall forthwith be paid, assigned,
transferred and/or delivered to Lender, and that if any such collateral security
is acquired, the same will be held by Lender as collateral security for the
Senior Obligations and, if such payment is received, the same shall be used to
reduce the outstanding balance of the Senior Obligations in such order and
manner as Lender, in its sole and absolute discretion may determine. Until the
Termination Date, Creditor agrees not to exercise any rights of subrogation or
indemnification in regard to any payment or collateral so paid, assigned,
transferred and/or delivered to Lender.
5. No Payment; Standstill.
5.1 Other than as set forth in Section 5.3 below, Creditor agrees
not to accept or demand any payment or reduction of Obligations of Borrowers to
Creditor and that no direct or indirect payment may be made by or on behalf of
any of the Borrowers upon or in respect of Obligations of Borrowers to Creditor
(including, without limitation, all interest payments from Borrowers to
Creditor) prior to the Termination Date. In the event that, notwithstanding the
foregoing, any payment shall be received by any Creditor when such payment is
prohibited by this Agreement, Creditor shall promptly notify Lender of such
prohibited payment and such payment shall be held in express trust for the
benefit of, and shall, promptly after such Creditor's receipt thereof, be paid
over or delivered to Lender.
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5.2 Other than as set forth in Section 5.3 below, Creditor
covenants and agrees that prior to the Termination Date it shall not, directly
or indirectly: (i) take any action to exercise any right of foreclosure or
self-help with respect to any security interest and liens on property and assets
of Borrowers which constitute Collateral or exercise any other right or remedy
with respect to such property and assets; (ii) contact any lessees of any
Collateral or otherwise seek payment from any obligor on any Collateral; (iii)
declare an event of default with regard to payment of the Obligations of
Borrowers to Creditor under any of the Creditor Provisions; or (iv) take any
other action that interferes with, is prejudicial to, or is inconsistent with
the Lender's rights and priority secured position with respect to the Collateral
including, without limitation, taking any action that will impede, restrict or
restrain the exercise by the Lender of its rights or remedies under the Senior
Loan Documents.
5.3 Notwithstanding anything to the contrary set forth in this
Agreement, and except as otherwise provided in this Section 5.3, on the
regularly scheduled dates for the quarterly payment of interest pursuant to the
Creditor Provisions, Borrowers may make, and Creditor may accept, the quarterly
interest payments at a rate not to exceed 6% per annum, or, upon the early
termination of the Marketing Agreement, 11% per annum.
5.3.1 From and after the date Creditor receives notice from
Lender of the occurrence of an Event of Default (as defined in the Loan
Agreement) in respect of the payment when due, after giving effect to any
applicable grace or cure period, of any principal of or interest or premium on,
or costs, fees or expenses owing in connection with, the Senior Obligations (a
"Payment Default"), no direct or indirect payment or distribution shall be made
by the Borrowers on account of the principal of or interest on the Obligations
of Borrowers to Creditor, or any other payment in respect thereof, which would
otherwise be permitted under Section 5.3, unless and until such Payment Default
shall have ceased to exist or shall have been cured or waived in writing by the
Lender.
5.3.2 From the date the Creditor receives notice (a "Payment
Blockage Notice") from the Lender of the occurrence and continuation of an Event
of Default (as defined in the Loan Agreement) other than a Bankruptcy Event (as
defined in Section 6.1 hereof) or a Payment Default, no direct or indirect
payment or distribution shall be made by the Borrowers on account of the
principal of or interest on Obligations of Borrowers to Creditor, or any other
payment in respect thereof, which would otherwise be permitted under Section
5.3, unless and until such Event of Default shall have been cured or waived in
writing by the Lender.
5.3.3 Borrowers agree that, promptly following their receipt of
any notice given by the Lender under Paragraph 5.3.1 hereof, or any Payment
Blockage Notice given by the Lender under Paragraph 5.3.2 hereof, the Borrowers
shall send a copy of any such notice to Creditor; provided, however, that
Borrowers' failure to do so shall not impair the Lender's rights arising under
Paragraphs 5.3.1 and 5.3.2 hereof.
6. Payment Upon Dissolution, Etc.
6.1 Until the Termination Date, upon any payment or distribution of
all or substantially all assets or securities of any of the Borrowers of any
kind or character (other than dividend payments), whether in cash, property or
securities, whether upon any dissolution or winding up or total or partial
liquidation or reorganization of any of the Borrowers, or otherwise,
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whether pursuant to the voluntary or involuntary bankruptcy, insolvency,
receivership or other proceedings, (each such event a "Bankruptcy Event") all
amounts due or to become due upon all Senior Obligations shall first be paid in
full, before Creditor shall be entitled to receive any payment on account of
Obligations of Borrowers to Creditor. Until the Termination Date, before any
payment may be made by or on behalf of the Borrowers on Obligations of Borrowers
to Creditor upon any dissolution, winding up, liquidation or reorganization or
otherwise, any payment or distribution of assets or securities of any of the
Borrowers of any kind or character, whether in cash, property or securities, to
which Creditor would be entitled, but for the provisions of this Section 6.1,
shall be made by the Borrowers or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar person making such payment or
distribution, or by Creditor if received by Creditor, directly to Lender under
the Senior Loan Documents.
6.2 Until the Termination Date, to the extent any payment in
respect of the Senior Obligations (whether by or on behalf of Borrowers, as
proceeds of security or enforcement of any right of setoff or otherwise) is
declared to be fraudulent or preferential, set aside or required to be paid to
any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
persons under any bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then if such payment is recovered by, or paid over to, such
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
person, the Senior Obligations or, part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. Until the Termination Date, to the extent the obligation to
repay Senior Obligations is declared to be fraudulent, invalid, or otherwise set
aside under any bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then the obligations so declared fraudulent, invalid or otherwise
set aside (and all other amounts that would come due with respect thereto had
such obligation not been affected) shall be deemed to be reinstated and
outstanding as Senior Obligations for all purposes hereof as if such
declaration, invalidity or setting aside had not occurred.
6.3 Until the Termination Date, in the event that, notwithstanding
any other provision of this Agreement prohibiting payment or distribution, any
payment or distribution of assets or securities of any of the Borrowers of any
kind or character, whether in cash, property or securities, shall be received by
any Creditor at a time when such payment or distribution is prohibited by this
Agreement and before all obligations in respect of the Senior Obligations are
paid in full, such payment or distribution shall be received and held in express
trust for the benefit of, and shall, promptly after such Creditor's receipt
thereof, be paid over or delivered to, Lender for application to the payment of
Senior Obligations remaining unpaid until all such Senior Obligations have been
paid in full.
7. Subrogation.
7.1 Upon and following the Termination Date, Creditor shall be
subrogated to the rights of Lender to receive payments or distributions of cash,
property or securities of Borrowers made on the Senior Obligations until the
principal amount of and interest on Obligations of Borrowers to Creditor shall
be paid in full; and, for the purposes of which subrogation, no payments or
distributions to Lender of any cash, property or securities to which Creditor
would be entitled except for the provisions of this Agreement, and no payment
pursuant
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to the provisions of this Agreement to Lender by Creditor shall, as among
Borrowers, their creditors other than the Lender, and Creditor, be deemed to be
a payment by Borrowers to or on account of the Senior Obligations. It is
understood that the provisions of this Agreement are intended solely for the
purpose of defining the relative rights of Creditor, on the one hand, and
Lender, on the other hand.
7.2 If any payment or distribution to which Creditor would
otherwise have been entitled but for the provisions of this Agreement shall have
been applied, pursuant to the provisions of this Agreement, to the payment of
all amounts payable under the Senior Obligations, then, and in such case,
Creditor shall be entitled to receive from Lender any payments or distributions
received by Lender in excess of the amount required to make payment in full of
such Senior Obligations.
8. Subordination Right Not Impaired by Acts or Omissions of Borrowers
or Lender. No right of Lender to enforce the subordination and standstill as
provided in this Agreement will at any time in any way be prejudiced or impaired
by any act or failure to act on the part of Borrowers or by any act or failure
to act, by Lender, or by any noncompliance by Borrowers with the terms of the
Obligations of Borrowers to Creditor regardless of any knowledge thereof that
Lender may have or otherwise be charged with. Creditor acknowledges that the
subordination and standstill provisions of this Agreement are expressly intended
to be for the benefit of, and shall be enforceable directly and only by Lender.
9. No Waiver of Subordination Provisions. Without in any way limiting
the generality of Section 8 of this Agreement, Lender may, at any time and from
time to time, without the consent of Creditor, without incurring responsibility
to Creditor, and without impairing or releasing the subordination and standstill
provided in this Agreement or the obligations hereunder of Creditor to Lender,
do any one or more of the following; (a) change the manner, place or terms of
payment or extend the time of payment of, increase the amount of or interest
rates with respect to, or otherwise renew or alter, the Senior Obligations or
any instrument evidencing the same or any agreement under which Senior
Obligations are outstanding or secured, (b) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Obligations; (c) release any person liable in any manner for the collection of
Senior Obligations; and (d) exercise or refrain from exercising any rights
against Borrowers and any other person.
10. No Transfer or Assignment. Creditor will not sell, assign or
transfer any of the Obligations of Borrowers to Creditor, or any instrument
evidencing the same, to any person, firm or entity unless such transferee(s)
agrees in writing to be bound by the terms of this Agreement. Creditor warrants
and represents that no prior subordination and postponement in payment as to any
of Obligations of Borrowers to Creditor has occurred.
11. No Loans or Advances. Without first obtaining the prior written
consent of Lender, which consent shall not be unreasonably withheld or delayed,
Creditor agrees not to accept any loan or advance from Borrowers nor to
hereafter forgive any of Obligations of Borrowers to Creditor and, in the event
of such a loan, advance or forgiveness without such consent, Creditor shall
thereupon become immediately liable to Lender in the amount of such loan,
advance or forgiveness. Creditor has disclosed to Lender all Obligations of
Borrowers to
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Creditor, whether direct, indirect, sole, joint or several or joint and several,
whether matured or unmatured, of any nature whatsoever, if any now exist.
12. Consent to Documents. Lender hereby acknowledges its receipt of the
Marketing Agreement. Except as expressly provided herein, Creditor specifically
waives notice of protest and any and all defaults by Borrowers. Creditor further
agrees that no invalidity, irregularity or unenforceability of all or any of the
Senior Obligations, or the security therefor, shall affect, impair or be a
defense to Creditor's obligations under this Agreement.
13. Evidence of Borrowers Obligations to Creditors. Creditor agrees to
cause Obligations of Borrowers to Creditor under Section 2.1(e) of the Marketing
Agreement to include a statement to the effect that the Creditor Provisions are
subject and subordinate to the Senior Obligations in accordance with the terms
and subject to the conditions of this Agreement.
14. Borrowers' Acknowledgments, Representations and Warranties.
14.1 Each of the Borrowers acknowledges receipt of this Agreement,
consents to its terms and conditions, and agrees, except as permitted herein,
not to pay any of Obligations of Borrowers to Creditor while any of the Senior
Obligations remain outstanding. Each of the Borrowers further agrees to notify
Lender of any legal proceedings against Borrowers by Creditor and, at Lender's
request, to defend such proceedings to the best of Borrowers' ability.
14.2 Each of the Borrowers agrees that, solely in order to prevent
the barring of claims, or any of them, by imposition of any applicable statute
of limitations, Borrowers shall, from time to time and at such times as Lender
and/or Creditor deems necessary, acknowledge in writing Obligations of Borrowers
to Creditor.
14.3 Each of the Borrowers warrants and represents that each
Borrower has disclosed to Lender all of Obligations of Borrowers to Creditor.
15. Acceleration. In the event of a violation of any material term of
this Agreement by Creditor or Borrowers, all of the Senior Obligations shall,
without notice or demand, become immediately due and payable, whether or not by
its terms the Senior Obligations are then due and payable, and Lender may
immediately proceed against Borrowers for the collection thereof. In the event
of such violation, Creditor agrees, upon demand by Lender, immediately to
deliver to Lender any moneys, securities, and other property received by
Creditor in violation of this Agreement.
16. No Impairment of Collateral. Nothing herein contained shall impair
any rights of Lender with respect to any Collateral heretofore, now or hereafter
granted, assigned, pledged or hypothecated to Lender as security for any of the
Senior Obligations, or to the proceeds thereof.
17. Intentionally Omitted.
7
18. Notices. Any notices or consents required or permitted by this
Agreement shall be in writing and shall be deemed delivered if delivered in
person, or by commercial courier against receipt or if sent by certified mail,
postage prepaid, return receipt requested, or telegraph, as follows, unless such
address is changed by written notice hereunder:
If to Borrowers: U.S. Vision, Inc.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇, Lidji & Werbner
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
4400 Renaissance Tower
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Creditor: Sola International, Inc.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President and CFO
Torrey View Corporate Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a Copy to: ▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Lender: Commerce Bank, N.A.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
8
19. Entire Agreement. The "Background" Section above is incorporated
herein by reference and is hereby made a part of this Agreement. This Agreement
embodies the entire agreement of the parties hereto, and it is acknowledged that
there are no customs, representations, promises, terms, conditions, or
obligations referring to the subject matter, and no inducements or
representations leading to the execution hereof, other than mentioned herein;
and there may be no modification of this Agreement except in writing executed
with the same formalities as this Agreement. No failure by Lender to exercise
any right hereunder shall be construed as a waiver of the right to exercise the
same or any other right at any other time and from time to time thereafter.
20. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original, and such
counterparts shall together constitute but one and the same Agreement. Signature
by facsimile shall bind the parties thereto.
22. Governing Law. This Agreement and all other instruments or
documents issued hereunder or pursuant hereto shall be governed by and construed
in accordance with the laws of the State of New Jersey, without regard to its
principles of conflicts of law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year above written.
U.S. VISION, INC.
By: /s/
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
STYL-RITE OPTICAL MFG. CO., INC.
By: /s/
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
USV OPTICAL, INC.
By: /s/
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
U.S. VISION HOLDINGS, INC.
By: /s/
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
COMMERCE BANK, N.A.
By: /s/
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
SOLA INTERNATIONAL INC.
By: /s/
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
10