EX-10.32 8 y19111exv10w32.txt EX-10.32: AMENDMENT TO LOAN AND SECURITY AGREEMENT Exhibit 10.32 FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT THIS Fifth Amendment to Loan and Security (the "Fifth Amendment") is dated as of this, 31st day of October, 2005, by and among COMMERCE BANK, N.A. (the "Lender") and U.S. VISION, INC., a Delaware corporation ("US Vision"), STYL-RITE OPTICAL MFG. CO., INC., a Florida corporation ("Styl"), USV OPTICAL, INC., a Texas corporation ("USV"), and U.S. VISION HOLDINGS, INC., a Delaware corporation ("Holdings" and together with US Vision, Styl and USV, each individually, a "Borrower" and, collectively, the "Borrowers"), and 9072-8411 QUEBEC, INC. d/b/a "Optik Pro Baie 2000" ("Guarantor;" each Borrower and Guarantor, individually, an "Obligor" and, collectively, the "Obligors"). BACKGROUND The Obligors, Health Eye Care Statistics, Inc. ("Health") and the Lender are parties to that certain Loan and Security Agreement, dated as of October 30, 2002 (the "Initial Loan Agreement"), as amended by the First Amendment thereto dated as of May 30, 2003 (the "First Amendment"), as further amended by the Second Amendment thereto dated as of April 5, [sic. 2004] (the "Second Amendment"), as further amended by the Third Amendment thereto dated as of January 31, 2005 (the "Third Amendment"), and as further amended by the Fourth Amendment thereto dated as of August 25, 2005 (the "Fourth Amendment", and together with the Initial Loan Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, and this Fifth Amendment, collectively, the "Loan Agreement"). All initially capitalized terms used herein and not otherwise defined herein shall have the same meaning ascribed to such terms in the Loan Agreement. US Vision and the Lender are also parties to that certain Loan and Security Agreement, dated as of September 23, 1999 (said Loan and Security Agreement, as amended, supplemented, modified and/or restated, being referred to herein as the "Real Estate Loan Agreement"), and a First Purchase Money Mortgage, Assignment of Leases, Rents and Other Income and Security Agreement (the "Mortgage", and together with the Real Estate Loan Agreement, collectively, the "Mortgage Documents", and, together with the Loan Agreement, collectively, the "Loan Documents"). The Obligors have requested, and subject to the terms conditions and provisions set forth herein, Lender has agreed to extend the Line Termination Date from October 31, 2006 to October 31, 2007. NOW, THEREFORE, in consideration of the mutual covenants and premises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Extension of Line Termination Date. Notwithstanding the provisions of Paragraph 2.1.10 of the Loan Agreement to the contrary, the Line Termination Date is hereby extended from October 31, 2006 to October 31, 2007. 2. Ratification of Loan Documents. Except as expressly provided herein, each of the terms, conditions and provisions set forth in the respective Loan Documents are hereby ratified and confirmed herein in full. 3. Representations and Warranties of the Borrower. Each of the Obligors represents and warrants to Lender each and all of the following: 3.1 Each and all of the representations and warranties as set forth in the Loan Documents are true, correct and complete in all material respects as of the date hereof except as such representations and warranties expressly relate to a different date. It is the express intention of the Obligors to hereby ratify, confirm and republish such representations and warranties as if set forth herein in full; 3.2 With respect to each of the Obligors, none of their respective articles of incorporation, bylaws or other organizational documents, nor their respective qualifications to do business have changed in any respect since the certification thereof was delivered to the Lender on or about October 20, 2002 (except as may have otherwise been amended or modified in connection with the transactions contemplated by either the First Amendment, the Second Amendment, the Third Amendment, or the Fourth Amendment heretofore delivered to the Lender) in connection with the closing under the Loan Agreement and that each is presently in full force and effect; 3.3 Each Obligor has full power and authority to execute and deliver this Fifth Amendment and the other Loan Documents, as amended hereby, and this Fifth Amendment and the other Loan Documents to be executed and delivered in connection herewith constitute the legal, valid and binding joint and several obligations of the Obligors parties thereto, enforceable against each of the Obligors in accordance with their respective terms; 3.4 No authorization, approval, consent, or other action by, notice to, or filing with, any Governmental Agency or other Person (other than the consent of the respective Board of Directors of each Obligor), is required for the execution, delivery or performance by Obligors of this Fifth Amendment; and 3.5 Each Obligor has complied with all applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local, and foreign governments (and all agencies thereof, including, without limitation, the SEC and all applicable state securities regulatory agencies (each a "Blue Sky Agency"), and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, audit, or notice has been filed or 2 commenced, or to the knowledge of any of the Obligors threatened, against any Obligor, or any of their respective officers, directors or shareholders, alleging any failure so to comply. No disciplinary proceeding with respect to any Obligor or any Obligor's respective officers is pending before the SEC or any Blue Sky Agency. To the knowledge of the Obligors, there are no facts which, if known by a potential claimant or Governmental Authority, could give rise to a claim or proceeding which, if asserted or conducted, the results would be unfavorable to any of the Obligors; and 3.6 Accuracy of Representations; No Default. The information set forth in each of the Loan Documents, as last amended by the Fourth Amendment, is complete and accurate in all material respects and contains full and complete disclosure of all pertinent information in connection with Obligors. None of such information contains any untrue statement of a material fact or omits to state a material fact necessary to make the information contained herein or therein not misleading or not incomplete. No Event of Default or Potential Default hereunder, or under any other Loan Document, has occurred. 4. Conditions Precedent to the effectiveness of the Amendments and to Lender's Consents. As conditions precedent to the effectiveness of this Fifth Amendment, Obligors shall deliver or cause to be delivered to Lender, executed where applicable and in form and substance satisfactory to Lender and its counsel, in addition to this Fifth Amendment, the following documents, instruments and agreements and the following conditions shall have been satisfied: 4.1 The representations and warranties set forth herein and in each of the other Loan Documents shall be true and correct in all material respects on and as of the date hereof with the same effect as though made on and as of such date, except as such representations and warranties relate to a different date; 4.2 No Event of Default or Potential Default shall have occurred and be continuing hereunder or under any other Loan Document; 4.3 No Material Adverse Change shall have occurred since August 31, 2005; 4.4 Payment of all Lender's Costs in connection with the negotiation, drafting and closing of the transactions contemplated hereby accrued to the date of the execution hereof, together with all reasonably anticipated Lender's Costs to be reasonably incurred in connection herewith. Obligors authorize Lender to deduct such Lender's Costs from the Line and agree to indemnify and hold Lender harmless from and against any and all claims, other than claims arising from Lender's willful misconduct or gross negligence, for any such Lender's Costs; and 4.5 Obligors will have delivered to Lender such additional documents or instruments as Lender may reasonably require. 3 5. Miscellaneous. Other than Section 9.5, the provisions of Article 9 of the Loan Agreement are hereby incorporated herein and made a part hereof as if set forth herein in full, and all references therein to the Loan Agreement shall be deemed to include the Loan Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment and further amended by this Fifth Amendment. This Fifth Amendment may be executed in counterpart and delivered by facsimile, each of which shall constitute and original and collectively one and the same agreement. [BALANCE OF PAGE INTENTIONALLY LEFT BLANK] 4 IN WITNESS WHEREOF, intending to be legally bound hereby, Obligors and Lender have executed this Agreement under seal, intending to be legally bound hereby, the day and year first above written. BORROWERS / OBLIGORS: GUARANTORS / OBLIGORS: U.S. VISION, INC. 9072-8411 QUEBEC, INC. d/b/a "Optik Pro Baie 2000" By: /s/ Carmen J. Nepa III By: /s/ Carmen J. Nepa III --------------------------------- ------------------------------------ Carmen J. Nepa III, Carmen J. Nepa III, Executive Vice President Executive Vice President and Chief Financial Officer and Chief Financial Officer STYL-RITE OPTICAL MFG. CO., INC. By: /s/ William A. Schwartz, Jr. --------------------------------- William A. Schwartz, Jr., President USV OPTICAL, INC. LENDER: COMMERCE BANK, N.A. By: /s/ Carmen J. Nepa III By: /s/ Gerard L. Grady --------------------------------- ------------------------------------ Carmen J. Nepa III, Gerard L. Grady, Executive Vice President Vice President and Chief Financial Officer U.S. VISION HOLDINGS, INC. By: /s/ Carmen J. Nepa III --------------------------------- Carmen J. Nepa III, Chief Financial Officer 5