AMENDMENT NO. 1 TO THIRD AMENDED
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AND RESTATED SECURED NOTE
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THIS AMMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED SECURED TERM NOTE
(this "AMENDMENT") is executed as of this 23rd day of May 2005, by and among
LASERSIGHT INCORPORATED, a Delaware corporation, LASERSIGHT TECHNOLOGIES, INC.,
a Delaware corporation, and LASERSIGHT PATENTS, INC., a Delaware corporation
(collectively, "BORROWER"), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation ("LENDER").
RECITALS
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A. Borrower and Lender previously agreed to an amendment and restatement
of certain financial accommodations from Lender to Borrower, pursuant
to that certain Third Amended and Restated Secured Term Note dated as
of June 30, 2004 by Borrower in favor of Lender (as amended and as may
be further amended, the "NOTE").
B. The parties now desire to amend the Note in accordance with the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing, the terms and
conditions set forth in the Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Lender and Borrower hereby agree as follows:
1. DELETION OF SECTION 11(N). The Note is hereby amended by deleting
the existing Section 11(n) thereof and by inserting in lieu
thereof the words "(n) [INTENTIONALLY DELETED].
2. DELETION OF SECTION 11(O). The Note is hereby amended by deleting
the existing Section 11(o) thereof and by inserting in lieu
thereof the words "(o) [INTENTIONALLY DELETED].
3. NEW SECTION 11(Q). The Note is hereby amended by inserting the
following new Section 11(q) immediately following existing
Section 11(p):
(q) Borrower will not allow its EBITDA (as defined herein) for
any trailing twelve-month period, measured as of the last day
of each calendar quarter commencing December 31, 2005, to fall
below $550,000. "EBITDA" means consolidated net income of
Borrower, determined in accordance with GAAP, plus (a)
depreciation and amortization expense deducted in the
determination of consolidated net income, (b) all interest in
respect of Borrowed Money, and (c) federal and state income
taxes deducted in the determination of consolidated net income.
4. REPRESENTATION AND WARRANTY. Borrower hereby represents and
warrants to Lender that it has good and marketable title to
all of its Collateral, free and clear of any lien or
security interest in favor of any other person or entity,
except as otherwise permitted in the Loan Documents.
5. COSTS AND EXPENSES. Borrower agrees to pay all costs and
expenses incurred by Lender in connection with this
Agreement and all related Loan Documents, including the
reasonable fees and expenses of Lender's in-house counsel
not to exceed $1,500.
6. ENFORCEABILITY. This Amendment constitutes the legal, valid
and binding obligation of Borrower and Lender and is
enforceable against each in accordance with its terms.
7. REFERENCE TO THE EFFECT ON THE NOTE.
i. On and after the date hereof, each reference in the
Note to "this Note", "hereunder", "hereof" or words
similar import shall mean and be a reference to the
Note as amended by the Agreement.
ii. Except as specifically amended above, the Note, and all
other Loan Documents, shall remain in full force and
effect, and are hereby ratified and confirmed.
iii. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided in
this Amendment, operate as a waiver of any right, power
or remedy of Lender, nor constitute a waiver of any
provision of the Note, or any other documents,
instruments and agreements executed or delivered in
connection with the Note.
iv. This Amendment (together with any other document
executed in connection herewith) is not intended to be,
nor shall it be construed as, a novation of the Note.
8. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of
Maryland without regard to any otherwise applicable
conflicts of laws principles thereof.
9. HEADINGS. Section headings in the Amendment are included for
convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
10. COUNTERPARTS. This Amendment may be executed in any number
of counterparts (and by facsimile), each of which
counterparts shall be deemed an original, but all of which
shall constitute one and the same instrument.
[SIGNATURES TO FOLLOW]
IN WITNESS WHEREOF, intending to be legally bound, the parties have
caused this Amendment to be executed under seal as of the date first above
written.
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
A Delaware corporation
By: /s/ Xxxxxx XxXxxxxx (seal)
Name: Xxxxxx XxXxxxxx
Title: Assistant Vice President, Investment Officer
BORROWER:
LASERSIGHT INCORPORATED
A Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx (seal)
Name: Xxxxxxx X. Xxxxxxx
Title: CFO & Secretary
LASERSIGHT TECHNOLOGIES, INC.
A Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx (seal)
Name: Xxxxxxx X. Xxxxxxx
Title: CFO & Secretary
LASERSIGHT PATENTS, INC.
A Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx (seal)
Name: Xxxxxxx X. Xxxxxxx
Title: CFO & Secretary
