Exhibit 10.52
$10,000,000.00
AMENDMENT NO. 1
TO
LOAN AND SECURITY AGREEMENT
originally dated as of March 12, 2001
by and among
LASERSIGHT INCORPORATED
LASERSIGHT TECHNOLOGIES, INC.
LASERSIGHT CENTERS INCORPORATED
LASERSIGHT PATENTS, INC.
PHOTOMED ACQUISITION, INC.
MRF, INC.
L.S. EXPORT, LTD.
LST LASER, S.A.
LASERSIGHT EUROPE GMBH
(collectively "Borrower")
and
XXXXXX HEALTHCARE FINANCE, INC.
("Lender")
Amended effective as of February 15, 2002
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AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
executed as of the ___ day of February, 2002 and made effective as of the 15th
day of February, 2002, by and among LASERSIGHT INCORPORATED, a Delaware
corporation, LASERSIGHT TECHNOLOGIES, INC., a Delaware corporation, LASERSIGHT
CENTERS INCORPORATED, a Delaware corporation, LASERSIGHT PATENTS, INC., a
Delaware corporation, PHOTOMED ACQUISITION, INC., a Delaware corporation, MRF,
INC., a Missouri corporation, L.S. EXPORT, LTD., a company formed under the laws
of the U.S. Virgin Islands, LST LASER, S.A., a company formed under the laws of
Costa Rica, and LASERSIGHT EUROPE GMBH, a company formed under the laws of
Germany (collectively, "Borrower"), and XXXXXX HEALTHCARE FINANCE, INC., a
Delaware corporation (the "Lender").
RECITALS
WHEREAS, pursuant to that certain Loan and Security Agreement dated March
12, 2001 by and among Borrower and Lender (as amended hereby and as it may be
further amended, modified or restated from time to time, collectively, the "Loan
Agreement"), the Lender agreed to make available to Borrower a revolving credit
loan (the "Loan"); and
WHEREAS, Borrower has requested that Lender agree to modify certain
provisions of the Loan Agreement and Lender has agreed to make such
modifications provided, among other things, that the parties hereto execute and
deliver this Amendment and the other related documents referred to herein and
otherwise comply with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions
set forth in this Amendment, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
hereby agree as follows:
Section 1. Definitions. Unless otherwise defined herein, all capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the Loan Agreement.
Section 2. Confirmation of Representations and Warranties. Each entity
comprising Borrower hereby (a) confirms that all of the representations and
warranties set forth in Article IV of the Loan Agreement are true and correct
with respect to such entity, and (b) specifically represents and warrants to
Lender that it has good and marketable title to all of its respective
Collateral, free and clear of any lien or security interest in favor of any
other person or entity.
Section 3. Amendments to Loan Agreement. As of the Effective Date (as
defined below), the Loan Agreement shall be modified as follows:
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(a) Section 6.22 of the Loan Agreement shall be deleted in its entirety and
replaced with the following: "Intentionally Deleted.".
(b) The following new sections Section 7.18, 7.19 and 7.20 are hereby added
to the Loan Agreement:
"Section 7.18. Net Worth. Borrower will not at any time allow its net
worth (as computed in accordance with GAAP) to fall below $10,000,000.00.
Section 7.19. Tangible Net Worth. Borrower will not at any time allow
its "tangible net worth" (as defined below), to fall below $4,500,000. For
purposes hereof, "tangible net worth" means assets (excluding "intangible
assets" (as defined below)) less liabilities. For purposes hereof, "intangible
assets" means all intangible assets (computed in accordance with GAAP)
including, without limitation, goodwill, intellectual property, organizational
costs and acquired technology.
Section 7.20. Net Revenue. Borrower will not at any time allow its net
revenue (determined in accordance with GAAP) to fall below: (i) $4,360,000 for
the quarter ended Xxxxx 00, 0000, (xx) $7,167,000 for the quarter ended June 30,
2002, (iii) $9,646,000 for the quarter ended September 30, 2002 and (iv)
$12,615,000 for the quarter ended December 31, 2002."
Section 4. Fees; Costs.
(a) In consideration of Lender's agreement to enter into this Amendment,
Borrower hereby agrees to pay to Lender a fee equal to Sixty Thousand and No/100
Dollars ($60,000.00) (the "Fee"), which Fee shall (a) be deemed fully earned by
Lender as of the date of this Amendment, (b) be due and payable by Borrower
making installment payments each equal to Five Thousand and No/100 Dollars
($5,000), beginning on the date of this Amendment and continuing on a monthly
basis thereafter through and including the date that is eleven (11) months from
the date of this Amendment, and (c) constitute a portion of the Obligations
evidenced by the Note and secured by the Loan Agreement and other Loan
Documents. Borrower hereby authorizes Lender to deduct any one or more
installments of the Fee from the proceeds of the next Revolving Credit Loan made
by Lender under the Loan Agreement (as amended hereby).
(b) Borrower shall be responsible for the payment of all costs and expenses
(including the reasonable fees and expenses of Lender's in-house counsel) of
Lender incurred in connection with the preparation of this Amendment and the
Amended and Restated Secured Term Note (as defined below).
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Section 5. Enforceability. This Amendment constitutes the legal, valid and
binding obligation of Borrower and is enforceable against Borrower in accordance
with its terms.
Section 6. Effective Date. As set forth in the introductory paragraph of
this Amendment, this Amendment shall be effective as of February 15, 2002 (the
"Effective Date"), provided that Lender shall have received each of this
Amendment and that certain Amended and Restated Secured Term Note, in the form
substantially as provided by Lender to Borrower and duly executed by an
authorized officer of Borrower, by no later than February 28, 2002, and, that,
on the date of Lender's receipt of such documents as described above, the
following shall be true:
(a) there shall have occurred and be continuing no Event of Default and
no event which, with the giving of notice or the lapse of time or both, could
constitute such an Event of Default and, after giving effect to this Amendment,
there shall have occurred no Event of Default and no Event which, with the
giving of notice or lapse of time or both, could constitute an Event of Default;
and
(b) the representations and warranties set forth in Section 3 of this
Amendment and in Article IV of the Loan Agreement shall be true and correct as
of such date and after giving effect to this Amendment (unless any such
representation or warranty by its terms is intended to refer specifically to any
earlier date).
Section 7. Reference to the Effect on the Loan Agreement.
(a) On and after the Effective Date, each reference in the Loan
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of
similar import shall mean and be a reference to the Loan Agreement as amended by
this Amendment.
(b) Except as specifically amended above, the Loan Agreement, and all
other Loan Documents, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) 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 Loan Agreement, or any other documents, instruments and agreements executed
or delivered in connection with the Loan Agreement.
Section 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.
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Section 9. Headings. Section headings in this Amendment are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
Section 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 FOLLOW]
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IN WITNESS WHEREOF, intending to be legally bound, and intending that
this Amendment No. 1 to Loan and Security Agreement constitutes and instrument
executed under seal, the parties have caused this Amendment No. 1 to Loan and
Security Agreement to be executed under seal as of the date first above written.
LENDER:
XXXXXX HEALTHCARE FINANCE, INC.,
a Delaware corporation
By:/s/ Xxxxxx Xxxxxxxx (SEAL)
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
BORROWER:
LASERSIGHT INCORPORATED,
a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
LASERSIGHT TECHNOLOGIES, INC.,
a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
LASERSIGHT CENTERS INCORPORATED,
a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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LASERSIGHT PATENTS, INC.,
a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
PHOTOMED ACQUISITION, INC.,
a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
MRF, INC., a Missouri corporation
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
L.S. EXPORT, LTD., a company organized
under the laws of the U.S. Virgin Islands
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
LST LASER, S.A., a company organized
under the laws of Costa Rica
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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LASERSIGHT EUROPE GMBH, a company
organized under the laws of Germany
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
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