EXHIBIT 40
GE Healthcare Financial Services, Inc.
0 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxx, XX 00000
000 000-0000
March 12, 2003
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
c/o LaserSight Incorporated
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Attention: Mr. Xxxx Xxxxxx, CFO
Re: Loan and Security Agreement dated as of March 12, 2001 (as amended from
time to time, the "Agreement") 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 ("Lender"), providing for a revolving credit loan in the
maximum aggregate principal amount of $10,000,000 (the "Revolving Credit
Loan");
Amended and Restated Secured Term Note dated as of February 15, 2002 (as
amended from time to time, the "Term Note") by Borrower in favor of Lender
evidencing a term loan in the initial principal sum of $3,000,000 (the
"Term Loan", and collectively with the Revolving Credit Loan, the "Loans")
Dear Xx. Xxxxxx:
Reference is made to the Loan Agreement and the Term Note. All
capitalized terms used but not defined in this letter agreement shall have the
respective meanings given them in the Loan Agreement.
The Loans each mature on March 12, 2003. Borrower has requested that
Lender extend the maturity of each Loan to April 12, 2003. Accordingly, upon
Lender's receipt of written acceptance of this letter agreement by Borrower, the
maturity of each of the Loans shall be deemed extended until April 12, 2003.
Such extension is made upon the following terms and conditions:
1. The entire remaining principal balance of each Loan then
outstanding, together with all unpaid interest accrued thereon, and all other
unpaid fees, costs and charges, shall become immediately due and payable on
April 12, 2003, if payment is not made or demanded sooner; provided that
advances made under the Revolving Credit Loan during such extension period shall
be subject to Lender's sole discretion.
2. Borrower hereby confirms and agrees to the following:
(a) Any further extension of either Loan must be made via
binding written agreement, and no such agreements exist as of the date of this
letter agreement. No past, present or future verbal discussions with regard to a
further extension of either of the Loans shall be binding upon Lender. No
representations have been made by Lender as to any future extension of either
Loan.
(b) Borrower has no defenses, counterclaims, setoffs,
recoupments or other adverse claims or causes of action of any kind existing
with respect to the Loans, the Obligations, the Loan Documents or this letter
agreement.
(c) The Loan Documents, and all covenants, agreements and
conditions set forth therein, are hereby ratified and reaffirmed by Borrower as
of the date hereof and shall remain in full force and effect as modified herein.
Nothing herein is intended or shall be construed to constitute a novation of the
Loan Documents or the lending relationship between Borrower and Lender.
(d) Nothing herein is intended or shall be construed to waive
(i) any defaults which may now or in the future exist under the Loan Documents
or (ii) any rights and remedies of Lender in respect of such defaults,
including, but not limited to, the right to accelerate the maturity of either
Loan.
(e) Borrower hereby fully, finally, and absolutely and forever
releases and discharges Lender and its present and former directors,
shareholders, officers, employees, agents, representatives, successors and
assigns, and their separate and respective heirs, personal representatives,
successors and assigns, from any and all actions, causes of 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 (i) in respect of either Loan, the Loan
Agreement, the Term Note or any other Loan Document, or the actions or omissions
2
of Lender in respect of either Loan, the Loan Agreement, the Term Note or the
Loan Documents; or (ii) arising from events occurring prior to the date of this
letter agreement.
3. This letter agreement shall be governed by and construed in accordance with
the laws of the State of Maryland. This letter agreement may be executed in any
number of counterparts, including by facsimile signature, each of which shall be
deemed an original, but all of which together shall constitute but one
instrument.
4. Borrower shall pay Lender an extension fee of one thousand dollars
($1,000.00). This fee shall be non-refundable. If on or prior to April 12, 2003,
Lender agrees to renew either Loan for one year from the Closing Date, this
extension fee may be applied toward payment of the renewal commitment fee.
[SIGNATURES FOLLOW]
3
Please indicate your agreement with the terms and conditions set forth
above by signing below where indicated and returning the countersigned letter to
me by facsimile (301-664-9890).
Very truly yours,
XXXXXX HEALTHCARE FINANCE, INC.
By: /s/X. Xxxxx Xxxxxxxx
Name: X. Xxxxx Whiteley
Title: Vice President
THE FOREGOING IS ACKNOWLEDGED AND AGREED TO AS OF THIS 12th DAY OF MARCH, 2003.
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
LASERSIGHT PATENTS, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
4
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
LASERSIGHT EUROPE GMBH
a company organized under the laws of Germany
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
5
