Exhibit 2.2
AMENDMENT TO
LOAN AGREEMENT
AMENDMENT, dated as of October 28, 2003, to the Loan Agreement, dated
January 19, 1993 (the "Loan Agreement"), among UNIINVEST HOLDING AG, a Swiss
corporation formerly known as EBC Zurich AG ("Uniinvest"), UNILENS CORP. USA, a
Delaware corporation ("Unilens USA"), and UNILENS VISION INC., a British
Columbia corporation ("Unilens Vision" and, together with Unilens USA, the
"Unilens Companies").
W I T N E S S E T H:
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WHEREAS, pursuant to the credit facility established under the Loan
Agreement, Uniinvest loaned $450,000 to the Unilens Companies (the "Loans");
WHEREAS, the Unilens Companies failed to repay the Loans as required
pursuant to the Loan Agreement;
WHEREAS, the Loans have been in default, although the Unilens Companies
have continued to pay interest on the Loans as required under the Loan Agreement
through September 30, 2003;
WHEREAS, the parties now wish to amend certain of the terms of the Loan
Agreement with respect to the repayment of the Loans so that the Loans are no
longer in default;
NOW, THEREFORE, in consideration of the mutual promises set forth below,
the parties agree as follows:
1. Modification of Terms. The Loan Agreement is amended, effective
immediately, as follows:
(a) Amending Section 2.2 of the Loan Agreement, Interest shall continue to
accrue and be calculated as provided in Section 2.2 of the Loan Agreement; the
Unilens Companies shall calculate the interest due on a monthly basis,
communicate the interest calculation to Uniinvest, and shall pay interest
monthly within 5 business days after each month end.
(b) Amending Section 2.3 of the Loan Agreement, the Unilens Companies
shall pay the $450,000 principal amount of the Loans in equal quarterly
installments of $25,000 each on January 20, April 20, July 20 and October 20 of
each year until paid in full. The first such principal payment shall be due and
payable on January 20, 2004;
(c) Amending Section 2.4 of the Loan Agreement, the Unilens Companies
shall have the right to prepay all or any portion of the unpaid principal amount
of the Loans at any time, without notice and without penalty or premium,
provided that all accrued and unpaid interest on the amount prepaid is paid
concurrently with any such prepayment; and
(d) Amending Section 9.1(a) of the Loan Agreement, it shall be an Event of
Default under the Loan Agreement if the Unilens Companies default in payment
when due of the Loan or any installment payment due or interest thereon.
In all other respects, the Loan Agreement and the related Security Agreement,
dated as of January 19, 1993 between Uniinvest and Unilens USA, Security
Agreement, dated as of January 7, 1993 between Uniinvest and Unilens Vision and
Pledge Agreement, Agreement, dated as of January 19, 1993 between Uniinvest and
Unilens Vision, Postponement Agreement of Unilens USA in favor of Uniinvest,
dated January 13, 1993 and Postponement Agreement of Unilens Vision in favor of
Uniinvest, dated January 13, 1993 (together, the "Related Loan Documents") shall
continue unchanged and in full force and effect.
2. Restatement of Promissory Note The Promissory Note, dated January 26,
1993, evidencing the Loans (the "Original Promissory Note") shall be amended and
restated in its entirety to read as set forth in the Amended and Restated
Promissory Note annexed to this Amendment as Exhibit A to reflect the amendments
of the Loan Agreement provided in Section 1 of this Amendment. On execution and
delivery to Uniinvest of the Amended and Restated Promissory Note by the Unilens
Companies, Uniinvest shall return the Original Promissory Note marked "Cancelled
and Satisfied".
3. Payment of Interest. On or prior to the date of this Agreement, the
Unilens Companies have paid to Uniinvest all interest accrued under the Original
Promissory to September 30, 2003.
4. Waiver of Default. Uniinvest waives all prior defaults and Events of
Default (as defined in Section 9.1 of the Loan Agreement) of the Unilens
Companies under the Loan Agreement and the Original Promissory Note and declares
the Unilens Companies to be no longer be in default thereunder. The foregoing
waiver shall be without prejudice to Uniinvest's rights under the Loan Agreement
(as amended by this Amendment), the Amended and Restated Promissory Note and the
Related Loan Documents with regard to any acts, omissions or defaults of the
Unilens Companies on or after the date of this Amendment. Any failure of
Uniinvest to enforce any provision of any of the documents referred to in the
preceding sentence shall not be construed as a waiver of its rights under such
or any other provision of any such document.
5. Consent to Security Interest. The Unilens Companies have requested
that Uniinvest consent to the creation of a security interest and lien on all of
their respective assets in favor of Competitive Technologies, Inc. ("CTI") in
order to settle a litigation instituted by CTI. Such security interest and lien
shall be subordinate to the security interest securing the obligations of the
Unilens Companies to Uniinvest under the Loan Agreement established under the
Related Loan Documents. The Unilens Companies have furnished Uniinvest with a
copy of the Settlement Agreement among the Unilens Companies and CTI pursuant to
which CTI's security interest is being created. Uniinvest consents to the
creation of such security interest and agrees that it shall promptly furnish CTI
with a letter setting forth such consent.
6. Representations and Warranties. Each of the Unilens Companies
represents and warrants to Uniinvest that it has full power and authority, and
has taken all corporate action necessary to authorize it, to enter into, and
perform its obligations under, this Amendment and the transactions contemplated
hereunder.
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7. Miscellaneous.
(a) Entire Agreement. The Loan Agreement, as amended by this Amendment,
together with the Amended and Restated Promissory Note and the Related Loan
Documents, set forth the entire understanding of the parties with respect to
their respective subject matter, merge and supersede any prior understandings
with respect to their subject matter, and shall not be modified or terminated
except by a written instrument executed by Uniinvest and each of the Unilens
Companies.
(b) Successors and Assigns. This Amendment shall be binding on,
enforceable against and inure to the benefit of the parties and their respective
successors and permitted assigns, and nothing herein is intended to confer any
right, remedy or benefit on any other person. Neither of the Unilens Companies
may assign its rights or delegate its obligations hereunder without the written
consent of Uniinvest.
(c) Governing Law. This Amendment shall in all respects be governed by and
construed and enforced in accordance with the laws of the Province of British
Columbia and Canadian federal laws applicable in such province, without giving
effect to conflicts of law principles.
(d) Communications. All notices and other communications given hereafter
under the Loan Agreement or any of the Related Loan Documents shall be in
writing and shall be deemed to have been duly given (a) when delivered by hand
or by Fedex or a similar overnight courier to, (b) 10 days after being deposited
in any United States, Canadian or Swiss post office enclosed in a postage
prepaid registered or certified envelope addressed to, or (c) when successfully
transmitted by fax (with a confirming copy of such communication to be sent as
provided in (a) or (b) above) to, the party for whom intended, at the address or
fax number for such party set forth below, or to such other address or fax
number as may be furnished by such party by notice in the manner provided
herein; provided, however, that any notice of change of address or fax number
shall be effective only upon receipt.
If to Uniinvest: If to either Unilens Company:
UNIINVEST Holding AG Unilens Corp. USA.
Xxxxxxxxxxxxxx 00, Xxxxxxxx XX-0000 10431 72nd Avenue North
Winterthur, Zurich, Switzerland Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx Attention: Xx. Xxxxxx X. Xxxxxx
Fax No.: (000) 0000-000-0000 Fax No.: (000) 000-0000
(e) Counterparts and Construction. This Amendment may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Signatures
transmitted by facsimile shall have the same force and effect as original
signatures. Headings contained in this Agreement are for convenience only and
shall not be used in the interpretation of this Agreement. References herein to
Sections and Exhibits are to the sections and exhibits of this Agreement. As
used herein, the singular includes the plural, and the masculine, feminine and
neuter gender each includes the others where the context so indicates.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the date first set forth above.
UNIINVEST HOLDING AG UNILENS CORP USA.
By /s/ Xxxx X. Xxx By Xxxxxx X. Xxxxxx
------------------------------------ ------------------------------------
Xxxxxx X. Xxxxxx, President
Name: Xxxx X. Xxx
---------------------------------
Title: Chairman
--------------------------------
UNILENS VISION, INC.
By Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
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Exhibit A
AMENDED AND RESTATED PROMISSORY NOTE
U.S.$450,000 Largo, Florida, USA
October 28, 2003
FOR VALUE RECEIVED, UNILENS CORP. USA, a Delaware corporation having its
head office at 00000 00xx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx, 00000-0000 and UNILENS
VISION INC. (collectively the "Companies") a British Columbia corporation having
an office at 000-000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0,
hereby jointly and severally promise to pay to the order of UNIINVEST HOLDING AG
(the "Lender"), a Swiss corporation formerly known as EBC Zurich AG, at
Xxxxxxxxxxxxxx 00, Postfach XX-0000 Xxxxxxxxxx, Zurich, Switzerland, the sum of
FOUR HUNDRED AND FIFTY THOUSAND DOLLARS ($450,000) the (the "Principal Sum") in
lawful money of the United States, together with interest on the Principal Sum
from the date hereof before and after maturity, default and/or demand at a rate
per annum equal to the Citibank Base Rate plus three percent (3%) per annum.
The Principal Sum shall be paid in equal quarterly installments of $25,000
each on January 20, April 20, July 20 and October 20 of each year until paid in
full. The first such payment shall be due and payable on January 20, 2004.
Interest at the rate aforesaid computed from the date hereof shall be
calculated and communicated to the Lender, become due and be paid monthly within
5 business days each month end for such month on so much of the Principal Sum as
shall from time to time remain unpaid until the whole of the Principal Sum is
paid. If the Companies fail to make any payment of interest, the Companies will
pay compound interest thereon computed on the first day of each month until
paid.
For the purpose hereof "Citibank Base Rate" means the annual rate of
interest announced publicly by Citibank, N.A. in New York, New York, from time
to time, as Citibank, N.A.'s base rate.
The Companies shall have the right to prepay all or any portion of the
Principal Sum at any time, without notice and without penalty or premium,
provided that all accrued and unpaid interest on the amount prepaid is paid
concurrently with any such prepayment.
At the sole option of the Lender, the whole of the Principal Sum remaining
unpaid together with all accrued and unpaid interest thereon shall become
immediately due and payable in each of the following events:
(a) if the Companies default in the payment of any installment of the
Principal Sum or of interest hereunder;
(b) if the Lender in good faith believes that the prospect of repayment of
the remaining Principal Sum is impaired or that any collateral securing the
Companies' obligations hereunder is or is about to be placed in jeopardy; or
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(c) there shall otherwise occur an Event of Default as defined in the Loan
Agreement, dated January 19, 1993, among the Companies and Lender, as amended by
the Amendment to Loan Agreement of even date herewith.
The Companies each hereby waive presentment, protest, notice of protest and
notice of dishonor of this Promissory Note.
This instrument amends and restates the Promissory Note, dated January 26,
1993, of the Companies to the order of Lender.
UNILENS CORP USA.
By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
UNILENS VISION, INC.
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx, President
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