$2,149,249
AMENDMENT NO. 4
---------------
TO
--
LOAN AND SECURITY AGREEMENT
---------------------------
AND LIMITED WAIVER
------------------
originally dated as of March 12, 2001
by and among
LASERSIGHT INCORPORATED,
LASERSIGHT TECHNOLOGIES, INC.,
LASERSIGHT PATENTS, INC.
(collectively, "Borrower")
---------
and
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as
successor to GE HFS HOLDINGS, INC., a Delaware corporation
f/k/a (name change effective 05/03) XXXXXX HEALTHCARE FINANCE,
INC.
("Lender")
--------
Executed as of __June 30__, 2004
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
----------------------------------------------
AND LIMITED WAIVER
------------------
THIS AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT AND LIMITED WAIVER
(this "Amendment") is executed as --------- of the ___30th_______ day of
____June__, 2004, by and among LASERSIGHT INCORPORATED, a Delaware corporation,
LASERSIGHT TECHNOLOGIES, INC., a Delaware corporation and LASERSIGHT PATENTS,
INC., a Delaware corporation (collectively, "Borrower" with LaserSight
Incorporated, LaserSight Technologies, Inc., and LaserSight Patents, --------
Inc., also collectively referred to as the "Debtor") and GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware ------ corporation, as successor to GE HFS
HOLDINGS, INC., a Delaware corporation f/k/a (name change effective 05/03)
XXXXXX HEALTHCARE FINANCE, INC. ("Lender"). ------
RECITALS
WHEREAS, on or about March 12, 2001, Lender made available to Borrower
a revolving credit loan in the amount of $10,000,000.00 which is evidenced by
that certain Loan and Security Agreement, as amended on February 15, 2002,
August 15, 2002, March 31, 2003, July 24, 2003 and as of the date hereof (as so
amended, the "Loan Agreement");
WHEREAS, on or about March 12, 2001, Lender made a term loan to
Borrower in the amount of $3,000,000 which is evidenced by that certain Secured
Term Note, which was amended on February 15, 2002, March 31, 2003, July 24, 2003
and as of the date hereof (as so amended, the "Term Note" and together with the
Loan Agreement referred to herein as the "Loan");
WHEREAS, all documents executed in connection with the Loan Agreement
and the Term Note, and including all amendments, a list of which is attached
hereto as Exhibit "A" shall be referred to hereinafter as the "Loan Documents";
WHEREAS, on September 5, 2003 (the "Petition Date"), Borrower filed a
voluntary petition for relief (the "Case") pursuant to chapter 11 of the United
States Bankruptcy Code, as amended, 11 U.S.C. xx.xx. 101, et seq. (the
"Bankruptcy Code"); and
WHEREAS, Borrower knowingly, voluntarily and intentionally, and after
consultation and advice of counsel stipulated and agreed, to the fullest extent
allowed by law and with the full intention that such stipulations and agreements
were to survive the filing of any bankruptcy, that that Lender has a perfected
security interest in all assets of the Debtor set forth in the various financing
agreements with the Debtor; and
WHEREAS, the Debtor has acknowledged the existence and validity of this
security interest and has further acknowledged that it has no defenses, offsets
to the enforcement of the debt owed to the Lender or claims against the Lender
as of the date hereof; and
1
WHEREAS, Borrower has requested that Lender agree to modify and
restructure the Loan under a consensual plan of reorganization proposed by the
Debtor in its Bankruptcy Case (the "Plan") and agreed to by each entity which is
a Borrower; and
WHEREAS, Lender has agreed to provide limited waivers and to modify and
restructure 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, except as specifically
disclosed on schedules updated as of the date hereof and attached hereto, are,
in all material respects, true and correct with respect to such entity as of the
Effective Date, as defined in Section 5 hereof, (the "Effective Date") 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 (other than Permitted Liens) in favor of any other person or
entity.
Section 3. Amendments to Loan Agreement. On the Effective Date, 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 1.5 of the Loan Agreement shall be amended and
restated in its entirety to read as follows:
Section 1.5. Base Rate. "Base Rate" means a rate of interest equal to
nine percent (9.0%).
(b) Section 1.16 of the Loan Agreement shall be amended and
restated in its entirety to read as follows:
Section 1.16. Default Rate. "Default Rate" means a rate per annum
equal to three percent (3%) above the Base Rate.
2
(c) Section 1.36 of the Loan Agreement shall be amended and
restated in its entirety to read as follows:
"Section 1.36. Permitted Liens. "Permitted Liens" means: (a) deposits
or pledges to secure obligations under workmen's compensation, social
security or similar laws, or under unemployment insurance; (b) deposits
or pledges to secure bids, tenders, contracts (other than contracts for
the payment of money), leases, statutory obligations, surety and appeal
bonds and other obligations of like nature arising in the ordinary
course of business; (c) mechanic's, workmen's, materialmen's or other
like liens arising in the ordinary course of business with respect to
obligations which are not due, or which are being contested in good
faith by appropriate proceedings which suspend the collection thereof
and in respect of which adequate reserves have been made (provided that
such proceedings do not, in Lender's sole discretion, involve any
substantial risk of the sale, loss or forfeiture of such property or
assets or any interest therein); (d) liens and encumbrances in favor of
Lender; (e) taxes set forth on Borrower's balance sheet which are
properly accrued but not yet payable; (f) liens on equipment of
Borrower to secure Borrowed Money incurred for the sole purpose of
financing the purchase price of the equipment subject to such lien
(i.e., purchase money security interests); (g) the liens set forth on
Schedule 1.36, (h) a second lien granted by Debtor to New Industries
Investment Consultants (HK) Ltd. ("NII") in connection with that
certain Debtor-In-Possession Term Loan dated as of __June 30__, 2004,
provided however, that the amount of such second lien may not exceed
One Million Dollars ($1,000,000), which shall at all times be
subordinate to the Obligations, and (i) a second lien on borrowings
other than as described in subparagraphs (i) through (iv) of Section
11(a) of the Term Note provided however, that the amount of such second
lien may not exceed One Million Dollars ($1,000,000.00) in the
aggregate and that any lien permitted pursuant to this Section 1.36(i)
shall at all times be subordinate to the Obligations."
(d) New Section 1.46 shall be added to the Loan Agreement as
follows:
"Section 1.46. Excess Net Cash Flow. The term "Excess Net Cash Flow" is
defined as earnings before interest, taxes deprecation and amortization
("EBITDA") for the relevant fiscal period less interest, taxes, capital
expenses and cash payments to unsecured creditors or other classes of
creditors as provided for under the Debtor's confirmed Plan; provided,
however, the Excess Net Cash Flow shall be calculated without giving
effect to any write-off or other income statement item resulting from
the Obsolete Inventory Liquidation or the Pre-Petition Accounts
Receivable Collection (both as defined in section 7.4).
3
(e) Section 2.5 of the Loan Agreement shall be amended and
restated in its entirety to read as follows:
"Section 2.5. Payments.
(a) Beginning upon the last day of the first month following
the confirmation of the Plan (the "Confirmation") and continuing on the
last day of each month thereafter until all amounts due hereunder are
paid in full, Borrower promises to pay to Lender payments in accordance
with the amortization schedule attached as Exhibit "B" hereto.
(b) In addition to the foregoing, the Borrower shall pay to
Lender such other amounts as may come due to Lender hereunder or under
the Term Note from time to time, as and when same are due, and shall
make a final payment of all outstanding and unpaid Principal Sum,
together with all accrued and unpaid interest, fees and charges
hereunder, including but not limited to the Finance Fee (as defined in
the Term Note), on the date which is three (3) years from the date of
the Confirmation (the "Maturity Date").
(c) Except to the extent otherwise set forth in this
Agreement, all payments of principal and of accrued and unpaid interest
on the Loan, all other charges and any other obligations of Borrower
under this Agreement, shall be made to Lender to the Concentration
Account (as defined in ss.2.3(b) of the Loan Agreement), in immediately
available funds.
(d) In addition to the foregoing payments, as a supplemental
principal payment on the restructured Loan, Borrower shall pay to
Lender ninety percent (90%) of Excess Net Cash Flow (as defined below)
in excess of One Million Dollars ($1,000,000) determined and paid
quarterly, as follows, with the first quarterly calculation to be done
three months after the effective date (effective date 6/30/04), which
date corresponds with the end of the third quarter:
Excess Net Cash Flow Quarterly Quarterly ECF
Base Payment
FOR 2004:
Third Quarter 2004 (9/30 Quarter to Date - $250,000) * 90% =
Fourth Quarter 2004 (12/31 Six Mo. to Date - $500,000) * 90% =
FOR 2005 AND THEREAFTER
First Quarter 2005 (3/31 Year to Date - $250,000) * 90% =
Second Quarter 2005 (6/30 Year to Date - $500,000) * 90% =
Third Quarter 2005 (9/30 Year to Date - $750,000) * 90% =
Fourth Quarter 2005 (12/31 Year to Date - $1,000,000) * 90% =
Notwithstanding anything to the contrary contained herein, no payment
hereunder shall be less than zero. Each Quarterly ECF Payment shall be
"swept" to Lender on or within fifteen (15) days after the end of the
relevant fiscal quarter. "Excess Net Cash Flow" is defined as earnings
before interest, taxes, depreciation and amortization ("EBITDA") for
the relevant fiscal period less interest, taxes, capital expenses and
4
cash payments to unsecured creditors or other classes of creditors as
provided for under the confirmed Plan, also for the relevant fiscal
period; provided, however, the Excess Net Cash Flow shall be calculated
without giving effect to any write-off or other income statement item
resulting from the Obsolete Inventory Liquidation or the Pre-Petition
Accounts Receivable Collection (both as defined below).
Annually, the Borrower's Board will establish a twelve (12) month
operating budget, as well as a twelve (12) month budget for capital
expenses and shall provide copies to Lender not less than thirty (30)
days before implementing same. The Lender will have the right to review
and pre-approve these budgets and the line items within each. If
disapproved by Lender, the subject line items will be deleted and, as
concerns disapproval of entire budget, Borrower's Board shall promptly
submit a new or revised budget in accordance with this Section.
Quarterly adjustments to these budgets may be made by Borrower's Board
subject to Lender's review and pre-approval, in the same manner as for
annual budgets. Lender agrees to permit Borrower to make capital
expenditures of up to Two Hundred Fifty Thousand Dollars ($250,000)
during the first year following the date of Confirmation ("Year One"),
and One Hundred Fifty Thousand Dollars ($150,000) during each of the
second and third years following the date of Confirmation (Year Two and
Three, respectively). These capital expenditure budget amounts have
been determined by the Borrower to be its best estimate of its capital
needs. If the capital expenditure for any year has not been used for
the year, the same amount shall be carried over and added to the
following year as additional approved capital budget.
(f) Section 2.8(a) of the Loan Agreement shall be amended and
restated in its entirety to read as follows:
"(a) This Agreement shall be in effect until the Maturity Date, as
defined in Section 2.5 hereof, unless terminated as provided
in this Section 2.8 (the "Term")."
(g) Section 4.16 of the Loan Agreement shall be amended and
restated in its entirety to read as follows:
"Section 4.16 Intellectual Property. Borrower exclusively owns or
possesses a license to all the patents, patent applications, registered
and unregistered trademarks, service marks, trade names, trade secrets,
goodwill, know how, copyrights, franchises, licenses, and rights with
respect to the foregoing necessary for the current and planned future
conduct of its business, without, except as described in Schedule
4.16(b), any conflict with the rights of others. A list of all such
intellectual property (indicating the nature of Borrower's interest) as
well as all outstanding franchises and licenses given by or held by
Borrower, is attached as Schedule 4.16(a). This security interest
extends to all intellectual property listed in Schedule 4.16(a),
together with any goodwill and common law rights in the listed
registered and unregistered trademarks, and in all national phase,
divisional and continuing patent applications filed in the United
States or in any other countries, based in whole or in part on the
5
listed patents and patent applications, and all patents granted on said
applications. Except as described in Schedule 4.16(b), Borrower is not
in default of any obligation or undertaking with respect to such
intellectual property or rights. Except as described in Schedule
4.16(b), to Borrower's knowledge, Borrower is not infringing on any
patents, patent applications, trademarks, trademark applications,
service marks, trade names, copyrights, franchises, licenses, any
rights with respect to the foregoing, or any other intellectual
property rights of others and the Borrower is not aware of any
infringement by others of any such rights owned by Borrower."
(h) Section 6.9 shall be amended and restated in its entirety as
follows:
"Section 6.9. Maintenance of Property. Borrower will maintain, keep and
preserve all of its properties in good repair and working order and
will, from time to time, make all reasonably required repairs,
renewals, replacements, betterments and improvements thereto, so that
the business carried on in connection therewith may reasonably be
conducted at all times. In addition, Borrower will maintain the current
inventory level of not less than One Million Five Hundred Thousand
Dollars ($1,500,000.00) based on the lower of cost or market."
(i) Section 7.4 shall be amended and restated in its entirety as
follows:
"Section 7.4. Restriction on Fundamental Changes. Except as disclosed
on Schedule 7.4, Borrower will not: (a) enter into any transaction of
merger or consolidation; (b) liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution); (c) convey, sell, lease,
sublease, transfer or otherwise dispose of, in one transaction or a
series of transactions, any of its assets (except for any sale or lease
of assets undertaken in the ordinary course of Borrower's business), or
the capital stock of any subsidiary of Borrower, whether now owned or
hereafter acquired; or (d) acquire by purchase or otherwise all or any
substantial part of the business or assets of, or stock or other
evidence of beneficial ownership of, any Person; provided that,
notwithstanding the foregoing: (1) LS Japan Company, Ltd., Lasersight
Europe GmBh, LST Laser, S.A., L.S. Export, Ltd., MRF, Inc., Lasersight
Centers Incorporated and Photomed Acquisition, Inc. shall be permitted
to liquidate, wind-up or dissolve, as the case may be, at any time
after the date of this Agreement provided however, any assets shall be
distributed to Borrower; (2) on or before September 30, 2004 Borrower
shall be permitted to liquidate up to $7,220,241 (determined from
Borrower's financial statements maintained in accordance with Section
6.1) of its obsolete inventory in a commercially reasonable manner (the
"Obsolete Inventory Liquidation"); and (3) Borrower shall be permitted
to engage in the Pre-Petition Accounts Receivable Collection (as
defined below) after the date of this Agreement; provided that the
proceeds from the Obsolete Inventory Liquidation, net of liquidation
expenses, and the Pre-Petition Accounts Receivable Collection, net of
reasonable collection expenses, are promptly (but in no event more than
thirty (30) days after receipt) paid, from time to time, to Lender to
be applied to the Obligations. Borrower agrees that compliance with
this Section 7.4 is a material inducement to Lender's advancing credit
6
under this Agreement. "Pre-Petition Accounts Receivable Collection"
shall mean the collection efforts of Borrower, or a third party
selected by Borrower with the written approval of Lender, such approval
not to be unreasonably withheld, delayed or conditioned, to collect
Borrower's outstanding accounts receivable in existence as of September
5, 2003. Borrower further agrees that in addition to all other remedies
available to Lender, Lender shall be entitled to specific enforcement
of the covenants in this Section 7.4, including injunctive relief.
(j) Section 9.4 shall be amended and restated as follows:
Section 9.4. Notices. Any notice or other communication required or
permitted under this Agreement shall be in writing and personally
delivered, mailed by registered or certified mail (return receipt
requested and postage prepaid), sent by telecopier (with a confirming
copy sent by regular mail), or sent by prepaid overnight courier
service, and addressed to the relevant party at its address set forth
below, or at such other address as such party may, by written notice
given at least fifteen (15) days before such change of address is to
become effective, designate as its address for purposes of notice under
this Agreement:
(a) If to Lender, at:
General Electric Capital Corporation
0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx,
Senior Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(b) If to Borrower, at:
LaserSight Incorporated
0000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If mailed, notice shall be deemed to be given five (5) days after it is
deposited in the U.S. mail if it is sent by regular mail, and if sent
by personal delivery, telecopier or prepaid courier, notice shall be
deemed to be given when delivered.
7
(k) Section 6.28 shall be added to the Loan Agreement as follows:
"Section 6.28. Payment of Proceeds from Obsolete Inventory Liquidation.
Borrower shall promptly (but in no event more than 30 days after
receipt) pay to Lender, from time to time, all of the proceeds from the
Obsolete Inventory Liquidation, net of liquidation expenses, and the
Pre-Petition Accounts Receivable Collection, net of collection expenses
(as those terms are defined in Section 7.4) to be applied by Lender to
the Obligations. In addition upon reasonable written request by Lender,
Borrower shall provide, and shall direct and pay the third parties that
may be engaged by Borrower to conduct the Obsolete Inventory
Liquidation and the Pre-Petition Accounts Receivable Collection to
provide, Lender with any or all information and documentation
concerning or relating to the Obsolete Inventory Liquidation and the
Pre-Petition Accounts Receivable Collection. "
Section 4. Advances under the Loan Agreement. Borrower hereby acknowledges and
agrees that, notwithstanding anything in the Loan Agreement to the contrary, it
has no right to request any advances of Revolving Credit Loans under the Loan
Agreement, 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 and the Borrower further acknowledges that the
revolving loan facility has been terminated.
Section 5. Effective Date. The obligation of Lender to enter into and accept
this Amendment is subject to satisfaction of all of the following conditions in
Lender's reasonable discretion (the date of satisfaction of all of the following
conditions in Lender's reasonable discretion as confirmed in writing to
Borrower, being the "Effective Date"):
(a) The Creditor's Committee approval shall have been granted by General
Electric Healthcare Financial Services, Inc. ("GEHFS").
(b) NII shall have funded its DIP loan for Two Million Dollars ($2,000,000).
(c) Borrower shall have proffered a Reorganization Plan consistent with that
certain Term Sheet/Consensual Reorganization Plan by and among GEHFS and the
Borrower dated as of January 2, 2004 (the "Term Sheet") as to the Plan's
treatment of Lender's restructured loan and otherwise acceptable, in all other
respects and terms and conditions to Lender, in its sole discretion.
(d) The Plan shall have been confirmed by the Bankruptcy Court and a final order
of confirmation shall have been entered (which final order is not subject to
appeal) no later than May 4, 2004 (the "Final Order").
(e) The Reorganized Debtor shall have executed all Loan Documents and other
instruments in form and substance reasonably acceptable to Lender and its
counsel.
8
(f) Lender shall have received such further information (financial and
otherwise) regarding Borrower or Reorganized Debtor as may have been requested
by Lender, pre-confirmation, such information to be reasonably satisfactory to
Lender.
(g) The consent of RJC Properties to the restructuring of the Loan, as required
by the Estoppel Certificate dated March 6, 2001, shall have been obtained in
form reasonably satisfactory to Lender.
(h) Consents or waivers from all other parties necessary to ensure that the
first priority and senior lien of Lender is not impaired or challenged by any
third party shall have been obtained. The Borrower shall be limited to making
interest only payments on any debt retained by NII at an interest rate not to
exceed nine (9%) percent, and no principal reductions of the debtor in
possession loan extended by NII to Borrower shall be permitted until all sums
due to Lender have been paid in full.
(i) Borrower shall have written off, or engaged a third party vendor(s)
reasonably acceptable to Lender to collect, the past due accounts and to
identify and liquidate inventory surplus to Borrower's needs.
(j) Lender shall have received two (2) originals of this Amendment duly executed
by an authorized officer or representative, as the case may be, of each entity
comprising Borrower; provided that Lender agrees to accept the executed version
of this Amendment from Borrower by facsimile or electronic mail with original
signatures to follow via overnight mail;
(k) Lender shall have received one (1) original of that certain Third Amended
and Restated Term Note (the "Amended Term Note") duly executed by an authorized
officer or representative, as the case may be of each entity comprising
Borrower; provided that Lender agrees to accept the executed version of this
Amended Term Note from Borrower by facsimile or electronic mail with original
signatures to follow via overnight mail;
(l) Lender shall have received, or will have received as of the Confirmation
Date, Schedules updated to the Confirmation Date to each of the Loan Agreement
and Amended Term Note, which updated Schedules shall be satisfactory to Lender
in its sole discretion; and
(m) Lender shall be reasonably satisfied that it has a perfected first priority
security interest in the Collateral, with only such exceptions as shall have
been reasonably approved by it;
(n) Borrower shall have provided Lender with resolutions of the Board of
Directors of each entity comprising Borrower, authorizing the execution,
delivery and performance of Amendment, the Amended Term Note and the Loan
Documents and otherwise in such form as shall be reasonably satisfactory to
Lender;
(o) The representations and warranties set forth in this Amendment, the Loan
Agreement and the Amended Term Note, in all material respects, shall be true and
correct as of such date; and
9
(p) No Event of Default or any event that, with the giving of notice or the
passage of time or both, could be an Event of Default, except as may have been
waived by Lender, shall have occurred or be continuing under the Amendment, the
Loan Agreement or any of the other Loan Documents, or the Amended Term Note or
any other instruments, documents, agreements or certificates delivered by
Borrower in connection therewith.
Notwithstanding the foregoing, should Borrower be unable to produce the
items set forth in subparagraphs (l) and (n) above, as of the date such other
conditions to effectiveness of this Amendment set forth above have been met,
Lender agrees that it will accept delivery of such items set forth in
subparagraphs (l) and (n) by the date that is no later than ten (10) days after
such date, so long as, as of the date of delivery of the items set forth in
subparagraphs (l) and (n), the conditions set forth in subparagraphs (o) and (p)
are met as of such date of delivery. In addition, notwithstanding the foregoing,
Borrower shall not be required to produce the items set forth in subparagraph
(n) with respect to Photomed Acquisition, Inc.; MRF, Inc.; L.S. Export, Ltd.; LS
Japan Company, Ltd.; LST Laser, S.A.; and LaserSight Europe GmbH; provided that,
if at any time Borrower ceases to be in compliance with Section 7.9 of the Loan
Agreement with respect to any or all of such entities, in addition to all other
rights and remedies of Lender in connection with such non-compliance, Lender
shall be entitled to request Board of Directors resolutions for each (or all, as
applicable) of such entities making the representations and warranties in
accordance with subparagraph (n).
Section 6. Fees; Costs.
(a) In consideration of Lender's agreement to enter into this Amendment and to
accept and agree to the Amended Term Note, Borrower hereby agrees to pay to
Lender a non-refundable fee equal to Fifty Thousand and No/100 Dollars
($50,0000.00) (the "Commitment Fee"). The Commitment Fee shall be deemed fully
earned by Lender as of the date of execution of this Amendment by Borrower and
shall be capitalized in the principal amount of the Loan.
(b) In addition to the Commitment Fee, Borrower hereby agrees to pay to Lender a
non-refundable fee equal to One Hundred Forty-Eight Thousand One Hundred
Twenty-Five and No/100 Dollars ($148,125.00) (the "Finance Fee"). The Finance
Fee shall be deemed fully earned by Lender as of the date of execution of this
Amendment by Borrower and shall be payable, without interest, upon Maturity of
the Amended Term Note. The Finance Fee shall not be added to principal for the
purposes of calculating interest. However, if the Finance Fee is not paid upon
Maturity, then interest will accrue thereon at the Default Rate from the date of
this Amendment..
(c) In consideration of the costs and expenses of the Lender in making a
revolving line of credit available to the Borrower for an extended period of
time, which line of credit was never drawn upon and which line of credit had not
been terminated until the bankruptcy of the Debtors, and as liquidated damages
and not as a penalty, in accordance with Section 2.8(c) of that certain Loan and
Security Agreement as of even date herewith by and among Borrower and Lender
(the "Loan Agreement"), Borrower agrees to unconditionally pay to Lender a
10
termination fee in the amount of One Hundred Thousand and No/100 Dollars
($100,000.00) (the "Termination Fee"), which amount shall be capitalized in the
principal amount of the Loan.
(d) Borrower shall be responsible for the payment of all costs and expenses
(including, without limitation, the reasonable fees and expenses of Lender's
in-house and outside counsel) of Lender incurred in connection with the
consummation of the transactions contemplated by this agreement and preparation
of this Amendment the Amended Term Note, and the Loan Documents. These fees will
be invoiced by Lender to Borrower within forty-five days of the execution of
this Amendment and will be added to the principal as of the date of this
Amendment.
Section 7. Enforceability. This Amendment constitutes the legal, valid and
binding obligation of Borrower and is enforceable against Borrower in accordance
with its terms.
Section 8. No Novation. The execution and delivery of this Amendment shall not,
and shall not be deemed to, constitution a novation of any indebtedness or other
obligations owning 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 9. Limitation on Waivers. The waivers of Lender with respect to defaults
or Events of Default, and other events that may constitute defaults or Events of
Default occurring prior to the Effective Date, shall not be deemed to constitute
a waiver by Lender of its rights in connection with any default, Event of
Default or other event that may constitute a default or Event of Default,
occurring on or after the Effective Date, all of which are hereby expressly
reserved by Lender.
Section 10. Further Documentation. In the event any further documentation or
information is deemed necessary or appropriate by Lender in the exercise of its
rights under the Loan Documents or to correct mistakes in the Loan Documents,
Borrower shall provide, or cause to be provided, to Lender, at Borrower's cost
and expense, such documentation or information. Borrower shall execute and
deliver to Lender such documentation, including, but not limited to, any
amendments, corrections, deletions or additions to the Loan Documents as is
required by Lender; provided, however, that Borrower shall not be required to do
anything that has the effect of changing the essential economic terms of the
loan set forth in the Loan Documents.
Section 11. Release. Borrower hereby fully, finally, and absolutely and forever
releases and discharges Lender and its present and former directors,
shareholders, officers, employees, agents, attorneys, representatives,
successors and assigns, and their separate and respective heirs, personal
representatives, successors and assigns, from any and all actions, causes of
11
action, claims, debts, damages, demands, liabilities, obligations, and suits, of
whatever kind or nature, in law or equity of Borrower, whether now known or
unknown to Borrower, and whether contingent or matured (collectively, the
"Claims") in respect of the Loan Agreement, the Loan Documents, or the actions
or omissions of Lender in respect of the Loan Agreement and the Loan Documents,
arising from events occurring prior to the date of this Amendment.
Section 12. 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 and the Note, 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 13. 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 conflict of laws principles.
Section 14. 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 15. Counterparts. This Amendment may be executed in any number of
counterparts (and by facsimile), each of which counterpart shall be deemed an
original, but all f which shall constitute one and the same instrument.
Section 16. Recitals. The recitals found in the preamble to this Agreement are
true and correct and incorporated herein.
[SIGNATURES APPEAR ON NEXT PAGE]
12
IN WITNESS WHEREOF, intending to be legally bound, and intending that
this Amendment No. 4 to Loan and Security Agreement and Limited Waiver
constitutes an instrument executed under seal, the parties have caused this
Amendment No. 4 to Loan and Security Agreement and Limited Waiver to be executed
under seal as of the date first written above.
----------------------- --------------------------------------------------------
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, as successor to GE
HFS Holdings, Inc., a Delaware
corporation f/k/a (name change effective
05/03) Xxxxxx Healthcare Finance, Inc.
By:____/s/ Xxxxxxx Arrowsmith____________________(SEAL)
Name: Xxxxxxx Xxxxxxxxxx
Title: VP
----------------------- --------------------------------------------------------
BORROWER:
LASERSIGHT INCORPORATED,
a Delaware corporation
By:_____/s/ Danghui Liu________________________(SEAL)
Name: Xxxxxxx Xxx
Title: President & CEO
----------------------- --------------------------------------------------------
LASERSIGHT TECHNOLOGIES, INC.,
a Delaware corporation
By:_______/s/ Danghui Liu______________________(SEAL)
Name: Xxxxxxx Xxx
Title: President & CEO
----------------------- --------------------------------------------------------
LASERSIGHT CENTERS INCORPORATED,
a Delaware corporation
By:_______/s/ Danghui Liu_____________________(SEAL)
Name: Xxxxxxx Xxx
Title: Presdidnet & CEO
----------------------- --------------------------------------------------------
LASERSIGHT PATENTS, INC.,
a Delaware corporation
By:_____/s/ Danghui Liu_______________________(SEAL)
Name: Xxxxxxx Xxx
Title: President & CEO
----------------------- --------------------------------------------------------
13
LIST OF SCHEDULES
-----------------
Schedule 1.36 - Permitted Liens
Schedule 4.1 - Subsidiaries
Schedule 4.5 - Litigation
Schedule 4.7 - Tax Identification Numbers
Schedule 4.8 - Defaults
Schedule 4.9 - Title to Properties
Schedule 4.13 - Non-Compliance with Law
Schedule 4.14 - Environmental Matters
Schedule 4.15 - Places of Business
Schedule 4.16(a) - List of Intellectual Property, Franchises and Licenses
Schedule 4.16(b) - Defaults with respect to Intellectual Property, Franchises
and Licenses
Schedule 4.17 - Stock Ownership
Schedule 4.19 - Borrowings and Guarantees
Schedule 4.21 - Trade Names
Schedule 4.22 - Joint Ventures
Schedule 7.1 - Permitted Borrowings
Schedule 7.4 - Fundamental Changes
Schedule 7.12 - Transactions with Affiliates
Schedule 9.1(a) - Dissolved Entities
Schedule 9.1(b) - Required Consents
Schedule 9.1(i)- Tax Returns Not Filed
<
1
EXHIBIT "A"
List of Loan Documents
EXHIBIT "B"
Amortization Schedule
