EXHIBIT 10.94
February 27, 2003
Staar Surgical Company
1911 Xxxxxx Avenue
Monrovia, California 91016
Attention: Xxxx Xxxx
Chief Financial Officer
Re: Waiver of Certain Covenants
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement dated as of March
29, 2002 (as amended to date, the "Credit Agreement") between Staar Surgical
Company, a Delaware corporation (the "Borrower"), and Xxxxx Fargo Bank, National
Association, a national banking association (the "Bank"). Terms defined in the
Credit Agreement and not otherwise defined herein have the same meanings when
used herein.
1. As of the effective date of this waiver letter but subject to
satisfaction of the terms and conditions specified herein, the Bank hereby
waives (a) the Events of Default caused by the Borrower's violation of the
covenants contained in Sections 4.9(b) and 4.9(h) of the Credit Agreement with
respect to December of 2002 and January of 2003, and (b) the Events of Default
expected to be caused by the Borrower's violation of the covenants contained in
Sections 4.9(b) and 4.9(h) of the Credit Agreement with respect to February and
March of 2003.
2. The Borrower hereby represents and warrants for the benefit of
the Bank that (a) the representations and warranties of the Borrower contained
in the Loan Documents are true and correct in all material respects on and as of
the effective date of this waiver letter, before and after giving effect to the
same, as if made on and as of such date, and (b) no event has occurred and is
continuing, or would result from the effectiveness of this waiver letter, that
constitutes an Event of Default. Except as specifically provided herein, the
execution, delivery and effectiveness of this waiver letter shall not operate as
a waiver of any right, power or remedy of the Bank under any of the Loan
Documents or constitute a waiver of any provision of any of the Loan Documents.
3. This waiver letter shall become effective as of the date first
set forth above, when and if the Borrower and the Bank execute counterparts of
this waiver letter and deliver them to each other.
4. The Borrower represents and warrants to the Bank that it has
diligently and thoroughly investigated the existence of any Claim (as defined
below) and that, to its knowledge and belief, no Claim exists and no facts exist
that could give rise to or support a Claim. As additional consideration for the
Bank's entering into this waiver letter, the Borrower and each of its agents,
employees, directors, officers, attorneys, affiliates, subsidiaries, successors
and assigns (each a "Releasing Party") hereby release and forever discharge the
Bank and each of its agents, direct and indirect shareholders, employees,
directors, officers, attorneys, branches, affiliates, subsidiaries, successors
and assigns (each a "Released Party") from any and all damages, losses, claims,
demands, liabilities, obligations, actions and causes of action whatsoever
(collectively "Claims") that the Releasing Parties or any of them may, as of the
effective date of this waiver letter, have or claim to have against any or all
of the Released Parties, in
each case whether currently known or unknown or with respect to which the facts
are known (or should have been known), that could give rise to or support a
Claim on account of or in any way relating to, arising out of or based upon any
Loan Document, any amendment, waiver or other modification with respect thereto,
the negotiation or documentation hereof or thereof, any of the transactions
contemplated hereby or thereby, or any action or omission in connection with any
of the foregoing, including all such damages, losses, claims, demands,
liabilities, obligations, actions and causes of action heretofore sustained or
that may arise as a consequence of the dealings between the parties up to the
effective date of this waiver letter in connection with or in any way related to
any Loan Document or any amendment, waiver or other modification with respect
thereto. Each Releasing Party further represents and warrants that it has not
heretofore assigned, and covenants and agrees that it will not hereafter sue any
Released Party upon, any Claim released or purported to be released under this
section. Each Releasing Party will indemnify and hold harmless the Released
Parties against any loss or liability on account of any actions brought by any
Releasing Party or its assigns or prosecuted on behalf of any Releasing Party
and relating to any Claim released or purported to be released under this
section. It is further understood and agreed that any and all rights under the
provisions of Section 1542 of the California Civil Code are expressly waived by
each of the Releasing Parties. Section 1542 of the California Civil Code
provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
5. This waiver letter may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
counterparts shall be an original and all of which taken together shall
constitute one and the same waiver letter.
6. THIS WAIVER LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN THE STATE OF CALIFORNIA.
Very truly yours,
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
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Title: Vice President
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Agreed as of the date first written above:
STAAR SURGICAL COMPANY
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Title: Chief Financial Officer
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