Attached files
Exhibit 10.58
December 22, 2009
FGX International Inc.
500 George Washington Highway |
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Smithfield, Rhode Island 02917 |
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Attention: |
Anthony Di Paola |
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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 Borrower, Corinne McCormack, Inc. (CMI), eye-bar inc. (eye-bar) and Corinne McCormack, 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 Persons 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 CMIs leasehold interest in the premises located at 7 West 36th Street, 9th Floor, New York, NY 10018 (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), Lakatos, Köves 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/ MICHAEL VEGH |
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Name: |
Michael Vegh |
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Title: |
Vice President |
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RAYMOND JAMES BANK, FSB, as a Lender |
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By: |
/s/ THOMAS F. MACINA |
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Name: |
Thomas F. Macina |
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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/ ROBYN ZELLER |
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Name: |
Robyn Zeller |
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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/ RICHARD MACDONALD |
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Name: |
Richard MacDonald |
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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/ ROBERTS A. BASS |
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Name: |
Roberts A. Bass |
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Title: |
Senior Vice President |
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BROWN BROTHERS HARRIMAN & CO., as a Lender |
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By: |
/s/ BARBARA R. FLIGHT |
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Name: |
Barbara R. Flight |
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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 BRENNAN |
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Name: |
Des Brennan |
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Title: |
Assistant Vice President |
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By: |
/s/ NORBERT GALLIGAN |
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Name: |
Norbert Galligan |
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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 BRENNAN |
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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/ NORBERT GALLIGAN |
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Name: |
Norbert Galligan |
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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/ ANTHONY DI PAOLA |
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Name: Anthony Di Paola |
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Title: EVP, CFO, Treasurer |
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FGX INTERNATIONAL HOLDINGS LIMITED |
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By |
/s/ ANTHONY DI PAOLA |
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Name: Anthony Di Paola |
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Title: EVP, CFO, Treasurer |
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FGX INTERNATIONAL LIMITED |
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By |
/s/ ANTHONY DI PAOLA |
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Name: Anthony Di Paola |
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Title: EVP, CFO, Treasurer |
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QUANTUM OPTICS, INC. |
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By: |
/s/ ANTHONY DI PAOLA |
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Name: Anthony Di Paola |
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Title: EVP, CFO, Treasurer |
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DIOPTICS MEDICAL PRODUCTS, INC. |
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By: |
/s/ ANTHONY DI PAOLA |
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Name: Anthony Di Paola |
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Title: EVP, CFO, Treasurer |
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QUANTUM DIRECT LLC |
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By: |
/s/ ANTHONY DI PAOLA |
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Name: Anthony Di Paola |
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Title: Treasurer and CFO |
Second Extension
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CORINNE MCCORMACK, INC. |
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By: |
/s/ ANTHONY DI PAOLA |
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Name: Anthony Di Paola |
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Title: EVP, CFO and Treasurer |
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EYE-BAR INC. |
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By: |
/s/ ANTHONY DI PAOLA |
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Name: Anthony Di Paola |
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Title: EVP, CFO and Treasurer |
Second Extension