December 22, 2009
Exhibit 10.58
December 22, 2009
FGX International Inc.
000 Xxxxxx Xxxxxxxxxx Xxxxxxx |
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Smithfield, Rhode Island 02917 |
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Attention: |
Xxxxxxx Xx Xxxxx |
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Chief Financial Officer |
Ladies and Gentlemen:
We refer to that certain Revolving Credit and Term Loan Agreement, dated as of December 19, 2007 (as amended or modified from time to time, the “Credit Agreement”), among FGX International Holdings Limited, a British Virgin Islands business company, FGX International Limited, a British Virgin Islands business company, FGX International Inc., a Delaware corporation, SunTrust Bank, as Administrative Agent and the lenders from time to time parties thereto. Capitalized terms used herein and not defined herein have the meanings assigned to them in the Credit Agreement.
Pursuant to that certain Stock Purchase and Sale Agreement, dated as of October 28, 2009, by and among Xxxxxxxx, Xxxxxxx XxXxxxxxx, Inc. (“CMI”), eye-bar inc. (“eye-bar”) and Xxxxxxx XxXxxxxxx, as shareholder, Borrower acquired all of the issued and outstanding shares of CMI and eye-bar, and each of CMI and eye-bar have become a Domestic Subsidiary of the Borrower. Section 5.10(a)(y)(iii) of the Credit Agreement requires, among other things, that within thirty (30) days after any Person becomes a Domestic Subsidiary, Borrower shall cause such Person to grant Liens in favor of Administrative Agent in all of such Person’s leasehold interests in Real Estate (the “Leasehold Mortgage Requirement”). Pursuant to that certain letter agreement, dated as of November 25, 2009, we agreed, at your request, to extend the date by which the Borrower and CMI must comply with the Leasehold Mortgage Requirement for CMI’s leasehold interest in the premises located at 0 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 (the “CMI Leasehold Mortgage Requirement”). As of the date hereof, the CMI Leasehold Mortgage Requirement has not been fulfilled and you have requested that we further extend the date for compliance.
Per your request, we agree to extend the date by which the Borrower and CMI must comply with the CMI Leasehold Mortgage Requirement until March 31, 2010 (or such other date, which shall be no later than May 14, 2010, as the Administrative Agent may determine in its sole discretion); provided, that the foregoing extension is conditioned upon, and shall not become effective until, receipt by the Administrative Agent of (a) executed counterparts to this letter agreement (this “Second Extension”) from the Borrower, each Guarantor and the Required Lenders and (b) reimbursement or payment of its fees, costs and expenses (including, without limitation, all reasonable fees, charges and disbursements of King & Spalding LLP (US counsel to the Administrative Agent), Xxxxxxx, Xxxxx and Partners Ügyvédi Iroda (Hungarian counsel to the Administrative Agent) and Ganado & Associates (Maltese counsel to the Administrative Agent)) incurred in connection with, or related to, (i) the joinder of Quantum Direct LLC, CMI and eye-bar as Loan Parties, (ii) the authorization and release of certain jewelry business assets in connection with the July 23rd, 2009 sale of the same, (iii) the contemplated First Amendment to Revolving Credit and Term Loan Agreement and related Hungarian and Maltese security documents and opinions and (iv) this Second Extension.
To induce the Administrative Agent and the Lenders to execute and deliver this Second Extension, by signing below, (i) the Borrower consents to the terms of this Second Extension and
represents and warrants that no Default or Event of Default has occurred and is continuing and the representations and warranties of the Loan Parties set forth in the Loan Documents are true and correct in all material respects except to the extent such representations and warranties relate solely to an earlier date, and (ii) each Guarantor consents to the terms of this Second Extension and ratifies the terms of the Guaranty and Security Agreement with respect to the indebtedness now or hereafter outstanding under the Credit Agreement as amended hereby.
Except as expressly set forth herein, this Second Extension shall not be deemed to waive, amend or modify any other provision of the Loan Documents or any other agreement between you and us, and shall not serve as a consent, waiver or amendment to any other matter prohibited by the terms and conditions of the Loan Documents. This Second Extension may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. This Second Extension shall constitute a Loan Document.
THIS SECOND EXTENSION AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF NEW YORK.
(Remainder of this page intentionally left blank.)
Please countersign below to evidence your acknowledgment and agreement to the terms of this Second Extension.
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Very truly yours, |
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SUNTRUST BANK, individually and as Administrative Agent |
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By: |
/s/ XXXXXXX XXXX |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Vice President |
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XXXXXXX XXXXX BANK, FSB, as a Lender |
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By: |
/s/ XXXXXX X. XXXXXX |
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
Executive Vice President |
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TD BANK, N.A., as a Lender |
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By: |
/s/ XXXXX XXXXXX |
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Name: |
Xxxxx Xxxxxx |
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Title: |
Senior Vice President |
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BANK OF AMERICA, NA, as a Lender |
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By: |
/s/ XXXXXXX XXXXXXXXX |
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Name: |
Xxxxxxx XxxXxxxxx |
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Title: |
Senior Vice President |
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BRANCH BANKING AND TRUST COMPANY, as a Lender |
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By: |
/s/ XXXXXXX X. XXXX |
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Name: |
Xxxxxxx X. Xxxx |
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Title: |
Senior Vice President |
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BROWN BROTHERS XXXXXXXX & CO., as a Lender |
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By: |
/s/ XXXXXXX X. XXXXXX |
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Name: |
Xxxxxxx X. Xxxxxx |
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Title: |
SVP |
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COMMERCE BANK, N.A., as a Lender |
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By: |
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Name: |
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Title: |
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Second Extension
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ALLIED IRISH BANKS, p.l.c., as a Lender |
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By: |
/s/ DES XXXXXXX |
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Name: |
Des Brennan |
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Title: |
Assistant Vice President |
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By: |
/s/ XXXXXXX XXXXXXXX |
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Name: |
Xxxxxxx Xxxxxxxx |
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Title: |
Vice President |
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On behalf of AIB Debt Management Limited, as a Lender |
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By: |
/s/ DES XXXXXXX |
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Name: |
Des Brennan |
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Title: |
Assistant Vice President |
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Investment Advisor to |
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AIB Debt Management, Limited |
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By: |
/s/ XXXXXXX XXXXXXXX |
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Name: |
Xxxxxxx Xxxxxxxx |
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Title: |
Vice President |
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Investment Advisor to |
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AIB Debt Management, Limited |
Second Extension
Acknowledged and agreed:
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FGX INTERNATIONAL INC. |
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By |
/s/ XXXXXXX XX XXXXX |
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Name: Xxxxxxx Xx Xxxxx |
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Title: EVP, CFO, Treasurer |
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FGX INTERNATIONAL HOLDINGS LIMITED |
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By |
/s/ XXXXXXX XX XXXXX |
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Name: Xxxxxxx Xx Xxxxx |
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Title: EVP, CFO, Treasurer |
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FGX INTERNATIONAL LIMITED |
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By |
/s/ XXXXXXX XX XXXXX |
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Name: Xxxxxxx Xx Xxxxx |
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Title: EVP, CFO, Treasurer |
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QUANTUM OPTICS, INC. |
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By: |
/s/ XXXXXXX XX XXXXX |
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Name: Xxxxxxx Xx Xxxxx |
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Title: EVP, CFO, Treasurer |
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DIOPTICS MEDICAL PRODUCTS, INC. |
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By: |
/s/ XXXXXXX XX XXXXX |
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Name: Xxxxxxx Xx Xxxxx |
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Title: EVP, CFO, Treasurer |
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QUANTUM DIRECT LLC |
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By: |
/s/ XXXXXXX XX XXXXX |
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Name: Xxxxxxx Xx Xxxxx |
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Title: Treasurer and CFO |
Second Extension
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XXXXXXX XXXXXXXXX, INC. |
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By: |
/s/ XXXXXXX XX XXXXX |
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Name: Xxxxxxx Xx Xxxxx |
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Title: EVP, CFO and Treasurer |
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EYE-BAR INC. |
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By: |
/s/ XXXXXXX XX XXXXX |
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Name: Xxxxxxx Xx Xxxxx |
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Title: EVP, CFO and Treasurer |
Second Extension