Dated as of April 30,
2009
TLC Vision
(USA) Corporation
16305 Swingley Ridge Road, Suite 300
Chesterfield, MO 63017
Attention: Brian Andrew
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Re:
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Amendment to Limited Waiver and
Amendment No. 2 to Credit Agreement
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We refer to the
Limited Waiver and Amendment No. 2 to Credit Agreement, dated
as of March 31, 2009, among TLC Vision (USA) Corporation
(the “ Borrower ”), TLC Vision Corporation
(“ Parent ”), as Guarantor, CIT Healthcare LLC,
as Issuing Bank, Collateral Agent and Administrative Agent, and the
Required Lenders party thereto (“ the Limited Waiver
”). Capitalized terms used but not defined in this Amendment
to Limited Waiver and Amendment No. 2 to Credit Agreement
(this “ Amendment to Limited Waiver ”) have the
same meanings herein as in the Limited Waiver.
The Loan Parties
have requested that the Required Lenders grant an extension with
respect to delivery of certain documents required pursuant to
Section 6 of the Limited Waiver.
Accordingly, the
Loan Parties hereby agree with the undersigned Required Lenders as
follows:
SECTION 1.
Amendment of Limited Waiver. The Limited Waiver is
hereby amended as set forth below.
(a)
Section 6(a) of the Limited Waiver is amended
by:
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(i)
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amending and restating
Section 6(a)(ii) in its entirety as follows:
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(A) a detailed
analysis of the contribution margin of each facility in which any
Loan Party or any entity in which any Loan Party holds any Equity
Interests has any right, title, or interest for the 12 months
prior to the Amendment No. 2 Effective Date and projected for the
balance of the Fiscal Year ending December 31, 2009;
and
(B) all Control
Account Agreements except the Control Account Agreement with
respect to account number 5800184771 at Bank of America, N.A. (as
successor in interest to LaSalle Bank) which the Loan Parties shall
deliver to the Agents
and the Lender
Parties by no later than May 18, 2009; provided that the Loan
Parties shall use their best efforts to deliver to the Agents and
the Lender Parties such Control Account Agreement as soon as
possible; and”
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(ii)
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inserting the following
Section 6(a) (iii) at the end
thereof:
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(A) Consolidated
monthly cash flow forecasts of Parent and its Subsidiaries for the
period October 1, 2009 to March 31, 2010;
(B) a detailed
analysis of (a) selling, general and administrative expenses
of Parent and its Subsidiaries, and (b) marketing expenses by line
of business of Parent and its Subsidiaries, in the case of each
(a) and (b) for the 12 months prior to the Amendment
No. 2 Effective Date and projected for the balance of the
Fiscal Year ending December 31, 2009; and
(C) a detailed
operational and financial restructuring plan for the Borrower and
its Subsidiaries, in form and substance satisfactory to the
Required Lenders.”
SECTION 2.
Acknowledgments and Agreements of the Loan
Parties. Each of the
Loan Parties hereby irrevocably and unconditionally agrees,
acknowledges and affirms to the Agents, the Issuing Bank and the
Lenders that except for the amendments to the Limited Waiver set
forth in Section 1 hereof, this Amendment to Limited Waiver
shall not, by implication or otherwise, limit, impair, constitute a
waiver of or otherwise affect any rights or remedies of the Agents,
the Issuing Bank or the Lenders under any of the Loan Documents,
nor alter, modify, amend or in any way affect any of the rights,
remedies, obligations or any covenants of the ‘Loan Parties
contained in any of the other Loan Documents, all of which are
ratified and confirmed in all respects and shall continue in full
force and effect.
SECTION 3.
Representations and Warranties. Each of the Loan Parties hereby represents and
warrants to the Agents, the Issuing Bank and the Lenders
that:
(a) Due
Execution and Authorization; Legal, Valid and Binding
Obligation. This Amendment to Limited Waiver has been duly
executed and delivered by each Loan Party. The execution and
delivery by each Loan Party of this Amendment to Limited Waiver is
within such Loan Party’s powers and has been duly authorized
by all necessary action on its part. This Amendment to Limited
Waiver constitutes the legal, valid and binding obligations of each
Loan Party, enforceable against such Loan Party in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at
law.
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(b) No
Conflicts. The execution, delivery and performance by each Loan
Party of this Amendment to Limited Waiver, are within such Loan
Party’s corporate, limited liability company, limited
liability partnership or limited partnership (as applicable)
powers, have been duly authorized by all necessary corporate,
limited liability company, limited liability partnership or limited
partnership (as applicable) action, and do not (i) contravene
such Loan Party’s charter, bylaws, limited liability company
agreement, partnership agreement or other constituent documents,
(ii) violate any law, rule regulation, order, writ, judgment,
injunction, decree, determination or award, (iii) conflict
with or result in the breach of, or constitute a default or require
any payment to be made under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting any Loan Party, any of its Subsidiaries or
any of their properties or (iv) except for the Liens created
under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the
properties of any Loan Party or any of its Subsidiaries.
(c)
Representations. After giving effect to this Amendment to
Limited Waiver each of the representations and warranties made by
any Loan Party contained in the Loan Documents is true and correct
in all material respects as of the date hereof, except to the
extent such representations and warranties expressly relate to an
earlier date.
(d)
Ratification of Obligations.
(i) There are no
understandings or agreements relating to the Obligations other than
the Loan Documents.
(ii) Neither the
Lenders, any Agent, nor the Issuing Bank are in default under any
of the Loan Documents or otherwise have breached any obligations to
the Loan Parties.
(iii) There are no
offsets, counterclaims or defenses to the Obligations or to the
rights, remedies or powers of the Administrative Agent, the
Collateral Agent, the Issuing Bank, or any Lender in respect of any
of the Obligations or any of the Loan Documents, and the Loan
Parties agree not to interpose (and each does hereby waive and
release) any such defense, set-off or counterclaim in any action
brought by the Administrative Agent, the Collateral Agent, the
Issuing Bank or any of the Lenders with respect thereto.
(e) No
Defaults. No Default or Event of Default exists on the date
hereof, other than the Specified Defaults.
SECTION 4.
Conditions to Effectiveness. This Amendment to Limited Waiver shall become
effective if, and only if, on or before April 30, 2009, each
of the following conditions precedent shall have been
satisfied:
(a)
Execution and Delivery of
Documents. The Administrative Agent and counsel to the
Required Lenders shall have received (i) duly executed
counterparts of this Amendment to Limited Waiver which, when taken
together, bear the authorized signatures of each of the Borrower,
the Parent and the Required Lenders, required for this
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Amendment to
Limited Waiver to become effective and (ii) duly executed
counterparts of the Consent, in the form of Annex A hereto, which
when taken together, bear the authorized signatures of each of the
Loan Parties.
(b) Fees, Costs
and Expenses . The Borrower shall have paid all invoiced unpaid
fees and out-of-pocket expenses and disbursements of
(i) Bingham McCutchen LLP, counsel to certain of the Lenders,
pursuant to the fee agreement dated as of February 10, 2009,
(ii) Gordian Group LLC, the financial advisor engaged by
Bingham McCutchen LLP for the benefit of the lenders represented by
it, pursuant to the engagement letter, dated as of
February 20, 2009, and (iii) the Agents pursuant to the
Credit Agreement.
(c) Closing
Certificate . The Administrative Agent and counsel to the
Required Lenders shall have received a certificate, dated as of the
date hereof, signed by the Chief Financial Officer of the Borrower,
to the effect that (i) each of the representations and
warranties of the Loan Parties contained in Section 3
hereof are true and correct as of the date hereof, and
(ii) all conditions to
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