**Exhibit 10.23**

 

August  19, 2004

 

National Vision, Inc.296 Grayson HighwayLawrenceville, Georgia 30045-5750Attention:  Chief FinancialOfficer

Ladies and Gentlemen:

 

Reference ismade to the Loan and Security Agreement dated as of May 30, 2001, between NationalVision, Inc., a Georgia corporation (“Borrower”), and Fleet CapitalCorporation, a Rhode Island corporation (“Fleet Capital”), as assigned by FleetCapital to Fleet Retail Group, Inc., a Delaware corporation (“Lender”),pursuant to the Assignment and Assumption dated as of May 24, 2004 (as amendedfrom time to time and as so assigned, the “Loan Agreement”).  All capitalized terms used herein, unlessotherwise defined, shall have the meanings ascribed to them in the LoanAgreement.

 

Lender andBorrower hereby agree that, during the period commencing on the date hereof andending on October 2nd , 2004 (the “Purchase Period”), Borrower may purchase upto $5,000,000 of New Senior Notes with Borrower’s cash on hand, but not withproceeds of any Revolver Loans; provided, however, that up to andincluding August 31st, 2004, after giving effect to such purchases, Borrowershall have cash on hand in an amount not less than $4,000,000; providedfurtherthat from September 1st through October 2nd , 2004, after giving effect to suchpurchases, Borrower shall have cash on hand in an amount not less than$2,000,000.  All of the purchases of NewSenior Notes described hereinabove shall comply with Section 9.2.22(iii) of theLoan Agreement except that any amounts expended to purchase New Senior Notesduring the Purchase Period shall not be included in the calculation of theConsolidated Fixed Charge Coverage Ratio for the purposes of Section9.2.22(iii).  After expiration of thePurchase Period, any amounts expended to purchase New Senior Notes during thePurchase Period shall be included in the calculation of the Consolidated FixedCharge Coverage Ratio for the purpose of satisfying the conditions of Section9.2.22(iii) of the Loan Agreement.  Anyamounts expended to purchase New Senior Notes during the Purchase Period shallnot be included in the calculation of the Consolidated Fixed Charge CoverageRatio under Section 9.3.2 of the Loan Agreement.

 

Notwithstanding anything to the contrary contained in the Loan Agreement,during the Purchase Period, Borrower shall not have any right to request, andLender shall not have any obligation to make, any Revolver Loans whatsoeverunder the Loan Agreement nor shall Borrower have any right to request, orLender have any obligation to procure, any Letter of Credit; provided, however,that (i) Lender may continue to honor any deemed request for a Revolver Loanunder Section 3.1 of the Loan Agreement for the becoming due of any Obligations(including, without limitation, interest and fees) that are not otherwisetimely paid by Borrower and (ii) the fees payable

 

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by Borrower under Section 2.2of the Loan Agreement shall continue to be calculated and payable as set forthin the Loan Agreement.

 

Lender andBorrower hereby agree that all rent payments which Borrower is required to makeby the terms of Borrower’s leases for its locations at 185 North Route 73,Sundaes Plaza, West Berlin, New Jersey 08091 and 1283 Arsenal Street, ArsenalPlaza, Watertown, New York 13601, as in effect on the date hereof, shall not beincluded in the definition of “Rentals” for purposes of determining Borrower’scompliance with Section 9.2.14 of the Loan Agreement; provided, however, thatBorrower shall not amend its leases for the West Berlin, New Jersey orWatertown, New York locations in a manner that increases the financialobligation of the borrower thereunder, as determined by the Lender in itsreasonable judgment, without Lender’s prior written consent, such consent to begiven in Lender’s sole and absolute discretion.

 

Lender hereby waives any and all Events ofDefault in existence on the date hereof occurring solely as a result ofBorrower’s late submissions of any schedules, financial statements or otherreports required by Sections 7.2, 7.3, 7.4, 7.5, 9.1.3 or 9.1.5 (the “DesignatedDefaults”).  In no event shall suchwaiver be deemed to constitute a waiver of (a) any Default or Event of Defaultother than the Designated Defaults in existence on the date of this Amendmentor (b) Borrower’s obligation to comply with all of the terms and conditions ofthe Loan Agreement and the other Loan Documents from and after the datehereof.  Notwithstanding any prior,temporary mutual disregard of the terms of any contracts between the parties,Borrower hereby agrees that it shall be required strictly to comply with all ofthe terms of the Loan Documents on and after the date hereof.

 

The effectiveness of this letter agreement is subject to Lender’sreceipt of an original counterpart of this letter agreement duly executed byBorrower.

 

Borrower hereby:  (i) ratifiesand reaffirms the Obligations, each of the Loan Documents and all of Borrower’scovenants, duties, indebtedness and liabilities under the Loan Documents; (ii)acknowledges and stipulates that (a) the Loan Agreement and the other LoanDocuments executed by Borrower are legal, valid and binding obligations ofBorrower that are enforceable against Borrower in accordance with the termsthereof, (b) all of the Obligations are owing and payable without defense,offset or counterclaim (and to the extent there exists any such defense, offsetor counterclaim on the date hereof, the same is hereby waived by Borrower) and(c) the security interests and Liens granted by Borrower in favor of Lender areduly perfected, first priority security interests and Liens; (iii) representsand warrants to Lender, to induce Lender to enter into this letter agreement,that (a) no Default or Event of Default exists on the date hereof other thanthe Designated Defaults, (b) the execution, delivery and performance of thisletter agreement have been duly authorized by all requisite corporate action onthe part of Borrower, (c) this letter agreement has been duly executed anddelivered by Borrower and (d) all of the representations and warranties made byBorrower in the Loan Agreement are true and correct on and as of the datehereof; (iv) agrees that a breach of any representation, warranty or covenantherein shall constitute an Event of Default; (v) agrees that this letteragreement shall be governed by and construed in accordance with the internallaws of the State of Georgia; (vi) agrees that this letter agreement shall bebinding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns; (vii) agrees that, except as otherwiseexpressly provided in this letter agreement, nothing herein shall be deemed toamend or

 

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modify any provision of theLoan Agreement or any of the other Loan Documents, each of which shall remainin full force and effect; (viii) agrees that this letter agreement is notintended to be, nor shall it be construed to create, a novation or accord andsatisfaction, and the Loan Agreement as herein modified shall continue in full forceand effect; (ix) agrees that this letter agreement may be executed in anynumber of counterparts and by different parties to this letter agreement onseparate counterparts, each of which, when so executed, shall be deemed anoriginal, but all such counterparts shall constitute one and the sameagreement; (x) agrees that any signature delivered by a party by facsimiletransmission shall be deemed to be an original signature hereto; (xi) agrees totake such further actions as Lender shall reasonably request from time to timein connection herewith to evidence or give effect to the amendments set forthherein or any of the transactions contemplated hereby; and (xii) agrees thatsection titles and references used in this letter agreement shall be without substantivemeaning or content of any kind whatsoever and are not a part of the agreementsamong the parties hereto.  **To the fullest extent permitted by Applicable Law, theparties hereto each hereby waives the right to trial by jury in any action,suit, counterclaim or proceeding arising out of or related to this letteragreement**.

 

 
|   | Very truly  yours,                                      |
|--------|---------------------------------------------------------|
|   |                                                    |   |
|   | **FLEET  RETAIL GROUP, INC.**                           |
|   | (“Lender”)                                    |
|   |                                                    |   |
|   | By:                                                     |   |   |
|   |                                                    |   |
|   |                                                    | Title: |   |   |
|   |                                                    |   |
|   | Accepted and  agreed to, this 19th day of August, 2004: |
|   |                                                    |   |
|   | **NATIONAL  VISION, INC.**                              |
|   | (“Borrower”)                                  |
|   |                                                    |   |
|   | By:                                                     |   |   |
|   |                                                    |   |
|   |                                                    | Title:  Senior Vice President, CFO and Treasurer |
|        |                                                         |  |  |  |

 

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