EXHIBIT 10.1
$10,000,000.00
AMENDMENT NO. 2
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")
Executed as of August 15, 2002
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is executed as of the 15th day of August, 2002, by and among LASERSIGHT
INCORPORATED, a Delaware corporation ("LaserSight"), 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 previously amended, 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");
WHEREAS, Borrower is in default of certain provisions of the Loan
Agreement as of the period ended June 30, 2002;
WHEREAS, Borrower has advised Lender that it intends to enter into
certain transactions with either or both of New Industries Investment
Consultants (H.K.) and Shenzhen New Industries Medical Development Co.
(collectively, the "Investor") pursuant to which one or more of the Investors
and/or their respective affiliates will (a) purchase 9,280,647 shares (the
"Shares") of Convertible Preferred Stock (convertible into 18,561,294 shares of
common stock of LaserSight) for an aggregate purchase price equal to
US$2,000,000 (the "Purchase Price"), and (b) execute a purchase order for the
purchase from LaserSight of a minimum of $10,000,000 worth of Borrower's
products during the twelve (12) month period beginning on the date of
consummation of such transactions (collectively, the "Proposed Transaction") and
in connection with the Proposed Transaction, Borrower has requested that,
subject to certain conditions, Lender agree to (a) waive Borrower's compliance
with such provisions of the Loan Agreement, and (b) make certain modifications
to the Loan Agreement; and
WHEREAS, Lender has agreed to provide the waivers and make the
modifications to the Loan Agreement requested by Borrower on the condition,
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 (other than Permitted Liens) or security
interest in favor of any other person or entity.
Section 3. Waiver. On the terms and subject to the conditions set forth
in this Amendment, including but not limited to those set forth in Section 6
hereof, Lender hereby waives (the "Default Waiver") compliance by Borrower with
Sections 7.18, 7.19 and 7.20 of the Loan Agreement only (collectively, the
"Specified Defaults") for the period beginning May 15, 2002 to and including
September 5, 2002; provided that upon Lender's receipt of the Transaction
Documents, the foregoing waiver shall be automatically extended (and shall,
thereafter, be deemed to have been extended effective as of such date without
further action of the parties) until the earlier of (x) October 31, 2002 and (y)
the Transaction Closing Date (as defined below).
Section 4. Amendments to Loan Agreement. On the satisfaction of all of
the conditions set forth in Section 6(y)(A), (B) and (C) in Lender's sole
discretion, the Loan Agreement shall be automatically modified (and shall,
thereafter, be deemed to have been modified effective as of such date without
further action of the parties) as follows:
(a) Section 7.18 of the Loan Agreement is amended and restated
in its entirety to read as follows:
"Section 7.18. Net Worth. Borrower will not at any
time allow its net worth (as computed in accordance with GAAP)
to fall below $2,100,000."
(b) Section 7.19 of the Loan Agreement is amended and restated
in its entirety to read as follows:
"Section 7.19. Tangible Net Worth. Borrower will not
at any time allow its "tangible net worth" (as defined below),
to fall below $(2,800,000). 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."
(c) Section 7.20 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"Section 7.20. Net Revenue. Borrower will not at any
time allow its net revenue (determined in accordance with
GAAP) to fall below: (i) $2,500,000 for the quarter ended
September 30, 2002, (ii) $4,200,000 for the quarter ended
December 31, 2002 and (iii) $5,300,000 for the quarter ended
March 31, 2003."
Section 5. Advances under the Loan Agreement. Borrower hereby
acknowledges and agrees that, notwithstanding anything in the Loan Agreement to
the contrary, any and all advances of Revolving Credit Loans made under the Loan
Agreement shall be made at Lender's sole discretion, and that Lender is not
obligated, and nothing in this Amendment shall be deemed to obligate Lender, to
make advances of Revolving Credit Loans to Borrower under the Loan Agreement
unless and until all of the conditions to such advances have been met to
Lender's sole satisfaction.
Section 6. Effective Date. The provisions of this Amendment, except for
Section 3 and Section 4 hereof only, shall become on satisfaction of all of the
following conditions in Lender's sole discretion:
(a) Lender shall have received this Amendment duly executed by
an authorized officer or member, as the case may be, of each Borrower;
(b) Lender shall have received that certain Amendment to
Amended and Restated Term Note dated of even date herewith (the
"Amendment to Term Note") duly executed by an authorized officer or
member, as the case may be, of each Borrower;
(c) other than the Specified Defaults, 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
(d) 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).
; provided that, with respect to (x) the provisions of Section 3 relating to the
Default Waiver from September 6, 2002 and thereafter only, such provisions shall
become effective only upon (A) satisfaction of all of the conditions set forth
above, and (B) Lender's receipt of the final versions of all material agreements
executed by Borrower and Investor in connection with the Proposed Transaction,
in each case fully executed by duly authorized representatives of all of the
parties thereto (collectively, the "Transaction Documents"), and (y) the
provisions of Section 4 only, such provisions shall become effective only upon
(A) satisfaction of all of the conditions set forth in subparagraph (x) above,
(B) Borrower's receipt of the full amount of the Purchase Price from the
Investor (the "Transaction Closing Date") and (C) Lender's receipt from Borrower
of the amounts payable to Lender pursuant to Section 7 of the Amendment to Term
Note, provided that Borrower's receipt of such purchase price and Lender's
receipt of such payment shall in each case shall have occurred on or before
October 31, 2002.
Section 7. Fees; Costs.
(a) In consideration of Lender's agreement to enter into this
Amendment and to accept and agree to the Amendment to Term Note,
Borrower hereby agrees to pay to Lender a non-refundable fee equal to
Fifteen Thousand and No/100 Dollars ($15,000.00) (the "Fee"). The Fee
shall be deemed fully earned by Lender as of the date of execution of
this Amendment by Borrower, and shall be payable in six (6) equal
installments beginning on August 31, 2002 and continuing on the last
day of each of the next five (5) subsequent calendar months through and
including January 31, 2003. The Fee shall 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 Borrower's Revolving Credit
Loan account on or following the due date of such installment.
(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).
Section 8. Enforceability. This Amendment constitutes the legal, valid
and binding obligation of Borrower and is enforceable against Borrower in
accordance with its terms.
Section 9. No Novation. The execution and delivery of this Amendment
shall not, and shall not be deemed to, constitute a novation of any indebtedness
or other obligations owing to the Lender under the Loan Agreement or any Loan
Documents based on any facts or events occurring or existing prior to the
execution and delivery of this Amendment. On the date of this Amendment, the
Loan Agreement shall be amended and supplemented as described in this Amendment,
and all loans and other obligations of the Borrower outstanding as of the date
hereof under the Loan Agreement and the Loan Documents shall be deemed to be
loans and obligations outstanding under the Loan Agreement and the Loan
Documents as amended, without further action by any person.
Section 10. Limitation on Waivers. The waivers of Lender set forth in
this Amendment shall be limited strictly as written, and shall not constitute,
nor be deemed to constitute, a waiver of any defaults or Events of Default other
than the Specified Defaults. Other events may have occurred that constitute
defaults or Events of Default, and nothing contained herein shall be deemed to
constitute a waiver by Lender of its rights in connection therewith, all of
which are hereby expressly reserved by Lender.
Section 11. Reference to the Effect on the Loan Agreement.
(a) On and after the date hereof, 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 12. 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.
Section 13. 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 14. 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]
IN WITNESS WHEREOF, intending to be legally bound, and intending that
this Amendment No. 2 to Loan and Security Agreement constitutes and instrument
executed under seal, the parties have caused this Amendment No. 2 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
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
BORROWER:
LASERSIGHT INCORPORATED,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
LASERSIGHT TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
LASERSIGHT CENTERS INCORPORATED,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
LASERSIGHT PATENTS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
PHOTOMED ACQUISITION, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
MRF, INC., a Missouri corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
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
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
LST LASER, S.A., a company organized
under the laws of Costa Rica
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
LASERSIGHT EUROPE GMBH, a company
organized under the laws of Germany
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
