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SUPPLEMENTAL AGREEMENT
TO
CREDIT AND SECURITY AGREEMENT
DATED DECEMBER 13, 2001 AS AMENDED
BY AND BETWEEN
BRITESMILE International Limited
AND
CAP ADVISERS LIMITED
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SUPPLEMENTAL AGREEMENT TO
CREDIT AND SECURITY AGREEMENT AS AMENDED
Dated : January , 2003
BRITESMILE INTERNATIONAL LIMITED an Irish company with company
registration no. 306119 and registered office at 00 Xxxxxxxxxxx Xxxxx, Xxxxxx 0,
Xxxxxxx (the "Borrower"), and CAP ADVISERS LIMITED an English company with
company registration no. 2147486 acting through its Dublin branch at 00
Xxxxxxxxxxx Xxxxx, Xxxxxx 0, Xxxxxxx (the "Lender"), hereby agree that this
Agreement is supplemental to a Credit and Security Agreement dated December 13,
2001 between Borrower and Lender as supplemented and amended by Supplemental
Agreements between them dated March 8 and July 22, 2002 (such three Agreements
together the "Principal Agreement") and that they wish to amend the Principal
Agreement in the manner and to the extent hereinafter provided
IT IS AGREED, in consideration of the premises and of the mutual
agreements contained in this Agreement and other good consideration, as
follows:-
1. Defined terms used in this Agreement shall have the same meanings as
defined terms in the Principal Agreement, except that "this Agreement" as used
herein shall refer to this Supplemental Agreement and not to the Principal
Agreement.
2. With effect on and from the date hereof, the Principal Agreement
shall be amended as follows:-
(a) by deleting the definition of "Borrowing Base" in section
1.1 thereof and substituting therefor the following new definition:-
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"Borrowing Base" means in respect of each period in column 1
below, the amount set out opposite the same in column 2 below:-
Column 1 Column 2
Until and including March 30, 2004 US$ 6,500,000
March 31, 2004 to June 29, 2004 inclusive US$ 6,375,000
June 30, 2004 to September 29, 2004 inclusive US$ 6,250,000
September 30, 2004 to December 30, 2004 inclusive US$ 6,125,000
December 31, 2004 to March 30, 2005 inclusive US$ 6,000,000
March 31, 2005 to June 29, 2005 inclusive US$ 5,875,000
June 30, 2005 to September 29, 2005 inclusive US$ 5,750,000
September 30, 2005 to December 30, 2005 inclusive US$ 5,625,000
December 31, 2005 to March 30, 2006 inclusive US$ 5,500,500
March 31, 2006 to June 29, 2006 inclusive US$ 5,312,500
June 30, 2006 to September 29, 2006 inclusive US$ 5,122,500
September 30, 2006 to December 30, 2006 inclusive US$ 4,937,500
December 31, 2006 to March 30, 2007 inclusive US$ 4,750,000
March 31, 2007 to June 29, 2007 inclusive US$ 4,562,500
June 30, 2007 to September 29, 2007 inclusive US$ 4,375,000
September 30, 2007 to December 30, 2007 inclusive US$ 4,187,500
(b) by deleting the definition of "Maturity Date" in section
1.1 thereof and substituting therefor the following new definition:-
"Maturity Date" means December 31, 2007.
(c) by deleting the definition of "Maximum Line" in section 1.1
thereof and substituting therefor the following new definition:-
"Maximum Line" means Six Million Five Hundred Thousand United
States Dollars (US$6,500,000).
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(d) by deleting section 2.2 and substituting therefor the
following new section 2.2:-
Section 2.2 Procedures for Requesting Advances. The Borrower shall
comply with the following procedures in requesting Revolving Advances:
(a) Time for Requests. The Borrower shall request each Advance
not later than 11:00 a.m. Eastern Standard Time on the third Banking Day prior
to the day which is the date the Advance is to be made. Each such request shall
be effective upon receipt by the Lender, shall be in writing or telecopy
transmission and shall be substantially in the form of Exhibit A1 or Exhibit A2
(as required and applicable under section 2.9) unless the Lender and the
Borrower shall agree in writing to any other form, shall be by (i) an Officer of
the Borrower; or (ii) a Person designated as the Borrower's agent by an Officer
of the Borrower in a writing delivered to the Lender; or (iii) a person whom the
Lender reasonably believes to be an Officer of the Borrower or such a designated
agent. The Borrower shall repay all Advances even if the Lender does not receive
such confirmation and even if the person requesting an Advance was not in fact
authorized to do so. Any request for an Advance, whether written or telephonic,
shall be deemed to be a representation by the Borrower that the conditions set
forth in Section 4.1 have been satisfied as of the time of the request, and
shall be accompanied by the documents referred to in Section 4.2.
(b) Disbursement. Upon fulfillment of the
applicable conditions set forth in Article IV, the Lender shall disburse the
proceeds of the requested Advance by crediting the same, if the request for an
Advance is properly in the form of Exhibit A1, to the Borrower's account in the
name of BRITESMILE INTERNATIONAL No. 0081803161 at the Bank of Hawaii, X.X. Xxx
0000, Xxxxxxxx, XX 00000, XXX Routing No. 000000000 or, if the request for an
Advance is properly in the form of Exhibit A2, by crediting the same on behalf
of the Borrower to the account of Peak Industries Inc. No. 6970672845 at UMB
Bank n.a, 0000 Xxxxx Xxxx, Xxxxxx, XX 00000, Routing No. 100100695, Swift No:
XXXXXX00, unless the Lender and the Borrower shall agree in writing to another
manner of disbursement.
(e) by deleting paragraph (b) of section 2.5 and
substituting therefor the following new paragraph (b) of section 2.5:-
(b) Application of Payments
(i) At the end of each month the Lender
shall cause such funds in the Collateral Account as would
satisfy in full, or if not in full, then in part, Obligations
then due and owing to the Lender to be transferred to the
Lender's general account for payment of the Obligations. Funds
to be so transferred that are in a currency other than US$
shall be converted by the Lender, through its bank, into US$.
Funds so transferred shall be applied first in payment or
reduction of accrued interest then in payment or reduction of
Advances outstanding, up to an aggregate maximum of
US$1,500,000, the proceeds of which have been used by the
Borrower for the purchase by the Borrower of BriteSmile
Systems for use outside the United States of America and then
in payment or reduction of other Obligations. If there are any
further funds in the Collateral Account in excess in aggregate
of US$1,000 or equivalent at the end of each month such
further funds shall be paid to the Borrower, if it so
requests, or otherwise left in the Collateral Account.
(f) by deleting section 2.6 and substituting therefor the
following new section 2.6:-
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Section 2.6 Voluntary Prepayment; Termination of the Credit
Facility by the Borrower. Except as otherwise provided herein, the
Borrower may prepay the Advances in whole at any time or from time to
time in part, provided that any prepayments shall first be applied in
payment or reduction of Advances outstanding, up to an aggregate
maximum of US$1,500,000, the proceeds of which have been used by the
Borrower for the purchase by the Borrower of BriteSmile Systems for use
outside the United Stated of America and then in payment or reduction
of other Obligations. The Borrower may terminate the Credit Facility at
any time if it gives the Lender at least thirty (30) days' prior
written notice. Subject to termination of the Credit Facility and
payment and performance of all Obligations, the Lender shall, at the
Borrower's expense, release or terminate the Security Interest and the
Security Documents to which the Borrower is entitled by law and pay to
the Borrower any remaining funds in the Collateral Account.
(g) by deleting section 2.9 and substituting therefor the
following new section 2.9:-
Section 2.9 Use of Proceeds. US$1,500,000 of the Maximum Line
(and notwithstanding any reduction in the Borrowing Base prior to the
Maturity Date) shall be available for and the proceeds of Advances
thereof shall be used by the Borrower for the purchase by the Borrower
of BriteSmile Systems for use outside the United States of America; the
proceeds of all other Advances shall be used by the Borrower for its
general business purposes, including without limitation the purchase by
the Borrower of BriteSmile Systems for use outside the United States of
America. Requests for Advances the proceeds of which shall be used by
the Borrower for the purchase by the Borrower of BriteSmile Systems for
use outside the United States of America shall be in the form of
Exhibit A2; requests for all other Advances shall be in the form of
Exhibit A1.
(h) by redesignating Exhibit A hereto as Exhibit A1 hereto and
adding a new Exhibit A2 in the form set out in the Schedule hereto.
(i) by deleting paragraph (a) of section 4.2 and
substituting therefor the following new paragraph (a) of section 4.2:-
(a) a request substantially in the form of
Exhibit A1 or Exhibit A2 (as required and applicable under
section 2.9).
3. The Borrower represents and warrants to the Lender that the
execution, delivery and performance by the Borrower of this Agreement and the
borrowings from time to time under the Loan Documents, including this Agreement,
have been duly authorised by all necessary corporate action, including the board
of directors of the Borrower and the board of directors, or executive committee
of the board of directors, of BriteSmile Inc, the parent company of the Borrower
and do not and will not (i) require any further consent or approval of the
shareholders in the Borrower; (ii) require any authorisation, consent or
approval by, or registration, declaration or filing with, or notice to, any
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any third party, except such authorisation, consent,
approval, registration, declaration, filing or notice as has been obtained,
accomplished or given prior to the date hereof or in the case of any necessary
registration at the Irish Companies Registry and the Irish Revenue
Commissioners, that will be effected within 21 days; (iii) result in a breach of
or constitute a default under any indenture or loan or credit agreement or any
other material agreement, lease or instrument to which the Borrower is a party
or by which it or its properties may be bound or affected; or (v) result in, or
require, the creation or imposition of any Lien (other than the Security
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Interest) upon or with respect to any of the properties now owned or hereafter
acquired by the Borrower.
4. This Agreement and the Principal Agreement shall be read and
construed as one agreement. Save as expressly amended by this Agreement the
Principal Agreement shall remain in full force and effect.
5. This Agreement shall be governed by and construed in accordance with
English law. Each of the parties hereto hereby (i) consents to the jurisdiction
of the Irish Courts in connection with any controversy related to this
Agreement; (ii) waives any argument that venue in any such forum is not
convenient and (iii) agrees that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgement or in any other manner provided by law.
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THE SCHEDULE hereto
EXHIBIT A2 TO CREDIT AND SECURITY AGREEMENT
[BRITESMILE INTERNATIONAL LIMITED LETTERHEAD]
To: CAP Advisers Limited
Dublin Branch
00 Xxxxxxxxxxx Xxxxx
Xxxxxx 0
Xxxxxxx
Telecopier:
Attention:
We refer to that certain Credit and Security Agreement dated December 13, 2001
(as amended or modified to date, the "Credit Agreement") by and between
Britesmile International Limited and CAP Advisers Limited Dublin branch.
Capitalised terms used herein but not otherwise defined shall have the same
meanings assigned to them in the Credit Agreement.
Pursuant to Section 2.2(a) of the Credit Agreement, we hereby request or confirm
our request for an Advance on the date, of the type(s) and in the amount(s)
specified below.
Amount of Advance (US$) Date of Borrowing
We enclose a copy of invoice no. from Peak Industries Inc. ("Peak")
addressed to us for our purchase of BriteSmile Systems at an aggregate price of
US$ (being not less than the amount of the Advance) and request
that you remit the Advance on our behalf to Peak's account no. 6970672845 at
UMB Bank N.A., 0000 Xxxxx Xxxx, Xxxxxx, XX00000, Routing No. 100100695,
Swift No. XXXXXX00 on the date of Borrowing quoting their invoice no.
BRITESMILE INTERNATIONAL LIMITED
By:.....................................
........................................
Its:....................................
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized on the date
first above written.
00 Xxxxxxxxxxx Xxxxx XXXXXXXXXX XXXXXXXXXXXXX XXXXXXX
Xxxxxx 0, By:
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Ireland Name:
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Telecopier: Its:
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Attention:
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00 Xxxxxxxxxxx Xxxxx CAP ADVISERS LIMITED
Xxxxxx 0 Xxxxxx Branch
Ireland By:
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Telecopier: Name:
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Attention: Its:
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