TLC Vision (USA) Corporation 16305 Swingley Ridge Road, Suite 300 Chesterfield, MO 63017 Attention: Michael Gries Re: Limited Waiver Ladies and Gentlemen:
Exhibit 10.1
EXECUTION COPY
Dated as of September 30, 2009
TLC Vision (USA) Corporation
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Re: Limited Waiver
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement, dated as of June 21, 2007 among TLC
Vision (USA) Corporation, a Delaware corporation (the “Borrower”), TLC Vision Corporation,
a New Brunswick corporation (“Parent”), as Guarantor, the Additional Guarantors, the
Lenders, the Issuing Bank, and Xxxxx Fargo Bank, National Association, as Collateral Agent and
Administrative Agent, as amended by (i) Amendment No. 1 to Credit Agreement dated as of February
28, 2008, (ii) Limited Waiver and Amendment No. 2 to Credit Agreement dated as of Xxxxx 00, 0000,
(xxx) Amendment to Limited Waiver and Amendment No. 2 to Credit Agreement, dated as of April 30,
2009, (iv) Consent and Amendment No. 2 to Limited Waiver and Amendment No. 2 to Credit Agreement,
dated as of June 1, 2009, (v) Limited Waiver, Consent, and Amendment No. 3 to Credit Agreement,
dated as of June 5, 2009, (vi) Limited Waiver and Amendment No. 4 to Credit Agreement, dated as of
June 30, 2009, and (vii) Amendment to Limited Waiver and Amendment No. 4 to Credit Agreement and
Amendment No. 5 to Credit Agreement, dated as of September 8, 2009 (the “Credit Agreement).
Capitalized terms used but not defined in this Limited Waiver (this “Limited Waiver”) have the
same meanings herein as in the Credit Agreement.
The Loan Parties have requested that (a) the Required Lenders grant a limited waiver with
respect to any and all Specified Defaults (as defined below), and (b) either (i) all of the Lenders
agree to an extension for payment of the Specified Amounts (as defined below) or (ii) the Required
Lenders agree to forbear from exercising their rights and remedies under the Loan Documents with
respect to the Payment Defaults (as defined below). Accordingly, the Loan Parties hereby agree
with the undersigned Lenders as follows:
SECTION 1. Limited Waiver of Specified Defaults.
(a) The undersigned Lenders hereby waive solely during the Waiver Period (as
hereinafter defined) any and all Specified Defaults.
(b) Upon the termination of the Waiver Period, (i) the Specified Defaults shall be
Defaults and Events of Default for all purposes of the Credit Agreement and the other Loan
Documents and (ii) the Administrative Agent, the Collateral Agent, the Issuing Bank and the
Lenders shall be entitled to exercise and to enforce any and all rights and
remedies available to them under the Loan Documents or otherwise against the Loan
Parties or in relation to the Collateral as a result of the occurrence of any Specified
Default and any Default or Event of Default other than the Specified Defaults.
(c)
Notwithstanding the limited waiver contained in clause (a) above:
(i) the defined term Eligible Assignee and Sections 2.06(b)(ii), 2.06(b)(v),
2.15, 5.02 (g)(ii)(B), 5.02(g)(ii)(C) and 5.02(g)(ii)(D) of the Credit Agreement
shall be read and shall apply and be operative as if the foregoing limited waiver
had not been granted and the Specified Defaults were continuing; and
(ii) the Borrower shall have no right to (A) elect to cause an assignment by a
Lender Party pursuant to Section 2.10(d) of the Credit Agreement, and (B) request or
receive any additional Advance or the issuance of any additional Letter of Credit or
Letter of Credit Participation Agreements, pursuant to Article II of
the Credit Agreement, or otherwise.
(d) As used in this Limited Waiver:
(i) “Limited Waiver Effective Date” shall mean
September 30, 2009.
(ii) “Payment Defaults” means the Defaults and Events of
Default arising from failure to pay any Specified Amount on or prior to the date on
which such Specified Amount is due and payable as set forth on Schedule
1 hereto;
(iii) “Specified Amounts” has the meaning set forth in
Section 2 hereof;
(iv) “Specified Defaults” has the meaning set forth in
Section 4 hereof; and
(v) “Waiver Period” means the period commencing on the Limited
Waiver Effective Date and ending on the earlier to occur of (A) October 13, 2009 or,
if so agreed by the Required Lenders in their sole discretion after the Limited
Waiver Effective Date, October 30, 2009, or (B) the occurrence of any Default or
Event of Default (other than a Specified Default or a Payment Default).
SECTION 2. Consent to Deferral of Specified Amounts Payment
(a) Subject to Section 6(b) hereof, each of the Lenders hereby agrees
to extend each date on which payment of each amount set forth on Schedule 1
hereto (each a “Specified Amount” and collectively, the “Specified
Amounts”) is due and payable under the Loan Documents to the day immediately
following the last day of the Waiver Period.
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SECTION 3. Forbearance
(a) In the event that Section 2 hereof does not become effective
because the conditions precedent specified in Section 6(b) hereof are not
satisfied, then the undersigned Required Lenders agree that from and after the Limited
Waiver Effective Date until the last day of the Waiver Period, they shall forbear from
exercising their rights and remedies under the Credit Agreement, the other Loan Documents
and applicable law with respect to the Payment Defaults.
(b) Upon termination of the Waiver Period, the agreements of the undersigned Required
Lenders to forbear from exercising their rights and remedies in respect of the Payment
Defaults set forth herein shall automatically terminate, without the requirement of any
notice to any Loan Party, and the undersigned Required Lenders shall be free in their sole
and absolute discretion to proceed to enforce any or all of their rights and remedies set
forth in the Credit Agreement, the other Loan Documents and applicable law, including,
without limitation, the right to demand the immediate repayment of the Advances and the
right to immediate repayment of all other Obligations in full.
(c) In furtherance of the foregoing and notwithstanding the occurrence of the Limited
Waiver Effective Date, each of the Loan Parties agrees that, subject to the agreement of the
undersigned Required Lenders to forbear from exercising certain of their rights and remedies
as and to the extent expressly set forth in this Limited Waiver, all rights and remedies of
the Lenders under the Loan Documents or applicable law with respect to such Loan Party shall
continue to be available to the Lenders from and after the Limited Waiver Effective Date.
SECTION 4. 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:
(a) Specified Defaults and Payment Defaults.
Set forth on Schedule 2 attached hereto is an accurate list of certain
Defaults and/or Events of Default that have occurred and are continuing under the Loan
Documents (such Defaults and/or Events of Default, the “Specified Defaults”) as of
the date hereof. Immediately (i) prior to the effectiveness of this Limited Waiver (and
subject to the terms and conditions of the Credit Agreement), the Agents, the Issuing Bank
and the Lenders had available to them, and were entitled to exercise, and (ii) upon the
expiration of the Waiver Period, the Agents, the Issuing Bank and the Lenders shall have
available to them, and be entitled to exercise, in each case, all of the rights and remedies
(including the right to enforce all of the security interests created pursuant to the Loan
Documents and, at the direction of the Required Lenders, to terminate the Commitments and
accelerate the Advances) accorded under the Credit Agreement and the other Loan Documents
with respect to the Specified Defaults, and any other then continuing Default or Event of
Default. From and after the date hereof, neither the Borrower nor any other Loan Party will
assert any objection to, or take any position, or engage in any action, which is
inconsistent with, the Loan Parties’ acknowledgments of the existence of the Specified
Defaults set forth in this Section 4(a) as of the date hereof.
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(b) Continued Validity of Loan Documents. Except for the consent, waivers and
forbearance set forth in Sections 1, 2, and 3 respectively,
hereof, this Limited Waiver shall not, by implication or otherwise, limit, impair,
constitute a consent, 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.
(c) Reimbursement and Indemnification Obligations. Nothing contained herein
shall be construed to diminish the expense reimbursement and indemnification obligations of
the Loan Parties set forth in Section 9.04 of the Credit Agreement.
(d) Advisers. The Borrower has an existing obligation to, and will, pay all
invoiced fees and out-of-pocket expenses and disbursements of (i) Xxxxxxx XxXxxxxxx LLP
(“Xxxxxxx”), counsel to certain of the Lenders, pursuant to the fee agreement, dated
as of February 10, 2009, (ii) Gordian Group LLC (“Gordian”), the financial adviser
engaged by Xxxxxxx for the benefit of the lenders represented by it, pursuant to engagement
letter, dated as of February 20, 2009, and (iii) Stikeman Elliott LLP, Canadian counsel
engaged by Xxxxxxx XxXxxxxxx LLP, subject to the terms and conditions of the fee agreement,
dated as of February 10, 2009.
(e) Payment Obligations. The Borrower has an existing obligation to, and will,
pay to the Lenders on the day immediately following the last day of the Waiver Period each
of the Specified Amounts.
(f) Default Interest. Notwithstanding the consent, waivers and amendments set
forth in this Limited Waiver, interest shall (i) accrue on the outstanding Obligations on
and after the date hereof at the applicable default rates under Section
2.07(b) of the Credit Agreement and (ii) be payable in accordance with the Credit
Agreement; provided that no such interest shall be payable until the day immediately
following the last day of the Waiver Period.
SECTION 5. 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
Limited Waiver has been duly executed and delivered by each Loan Party. The execution and
delivery by each Loan Party of this Limited Waiver is within such Loan Party’s powers and
has been duly authorized by all necessary action on its part. This Limited Waiver and the
Credit Agreement constitute the legal, valid and binding obligations of such 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 Violation; No Defaults; Consents and Approvals. The execution, delivery
and performance by each Loan Party of this 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 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.
(iv) As of the Limited Waiver Effective Date (a) the outstanding principal
amount of all Term Advances equals $76,659,696.92, (b) the outstanding principal
amount of all Revolving Credit Advances equals $23,400,000.00 and (c) the
outstanding LC Exposure equals US $50,000 and CAD $1,000,000.
(e) No Other Defaults. No Default or Event of Default exists on the date
hereof other than the Specified Defaults and Payment Defaults.
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(f) Material Information.
(i) None of the factual information and data (taken as a whole) at any time
furnished by any Loan Party, any of its Affiliates that it controls or any of their
respective counsel, financial advisers or authorized representatives to any Agent,
any Lender, or any of their respective counsel or financial advisors in connection
with the Loan Documents and the proposed restructuring of the obligations
thereunder, contains any untrue statement of a material fact or omits to state any
material fact necessary to make such information and data (taken as a whole) not
materially misleading, in each case, at the time such information was provided in
light of the circumstances under which such information or data was furnished.
(ii) The projections and other pro forma financial information provided by any
Loan Party, any of its Affiliates that it controls or any of their respective
counsel, financial advisers or authorized representatives to any Agent, any Lender
or any of their respective counsel or financial advisers were prepared in good faith
based upon assumptions believed by the Loan Parties to be reasonable at the time
made, it being recognized by the Agents and the Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results and such differences may be material.
SECTION 6. Conditions to Effectiveness. (a) This Limited Waiver shall become
effective if, and only if, on or before September 30, 2009, each of the following conditions
precedent shall have been satisfied:
(i)
Execution
and Delivery of Documents. The Administrative Agent and counsel
to the Required Lenders shall have received (A) duly executed counterparts of this
Limited Waiver which, when taken together, bear the authorized signatures of each of
the Borrower, the Parent and the Required Lenders, required for this Limited Waiver
to become effective and (B) 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 Guarantors.
(ii) Fees, Costs and Expenses. The Borrower shall have paid all
invoiced unpaid fees and out-of-pocket expenses and disbursements of (A) Xxxxxxx,
pursuant to the fee agreement dated as of February 10, 2009, (B) Gordian, pursuant
to the engagement letter, dated as of February 20, 2009, (C) Xxxxx Fargo Bank,
National Association, as Administrative Agent and Collateral Agent, and (D) Ropes
and Xxxx LLP, counsel to the Administrative Agent and Collateral Agent, pursuant to
Section 9.04 of the Credit Agreement.
(iii) Proof of Corporate Action. The
Administrative Agent and counsel to the Required Lenders shall have received from
each of the Loan Parties copies, certified by a duly authorized officer of such
Person to be true and complete on and as of the Limited Waiver Effective Date, of
the records of all corporate action
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taken by such Person to authorize (A) such Person’s execution and delivery of
this Limited Waiver, and (B) such Person’s performance of all of its agreements and
obligations under this Limited Waiver and the Credit Agreement. Such certified
copies shall be in form and substance reasonably satisfactory to the Required
Lenders.
(iv) Incumbency Certificate. The Administrative Agent and
counsel to the Required Lenders shall have received incumbency certificates, dated
the Limited Waiver Effective Date, signed respectively by a duly authorized officer
of each of the Loan Parties, and giving the name and bearing a specimen signature of
each individual who shall be authorized (A) to sign, in the name and on behalf of
such Person, this Limited Waiver, and (B) to give notices and to take other action
on behalf of such Person under this Limited Waiver and the Loan Documents. Such
certified copies or certificate shall be in form and substance reasonably
satisfactory to the Required Lenders.
(v) Closing Certificate. The Administrative Agent and counsel to the
Required Lenders shall have received a certificate, dated the Limited Waiver
Effective Date, signed by the Chief Financial Officer of the Borrower, to the effect
that (A) each of the representations and warranties of the Loan Parties contained in
Section 5 hereof are true and correct as of the Limited Waiver Effective Date, and
(B) all conditions to the effectiveness of this Limited Waiver set forth in this
Section 6, other than those which are subject to the discretion of the Agents or any
Lender, have been satisfied in all respects.
(vi) Amendment to Fee Agreement. (A) Counsel to the Required Lenders
shall have received duly executed counterparts of the amendment to the fee agreement
dated as of the date hereof between the Borrower and Xxxxxxx, in form and substance
reasonably satisfactory to Xxxxxxx, and (B) the fee reserve referred to in the
amendment to the fee agreement dated as of the date hereof between the Borrower and
Xxxxxxx shall have been deposited in accordance with the terms thereof.
(b) In the event that less than 100% of the Lenders execute and deliver this Limited
Waiver, then Section 2 of this Limited Waiver shall not be effective and
shall not be binding on any of the Loan Parties, the Agents, the Issuing Bank and the
Lenders.
SECTION 7. Post-Closing Covenants.
(a) Agreements. The Loan Parties shall not (i) make or permit any of their
Subsidiaries (or Affiliates that they control) to make, any material amendment to any
agreement to which it is a party, (ii) settle or permit any of their Subsidiaries to settle,
or make any payment of or permit any of their Subsidiaries (or Affiliates that they control)
to make any payment of, all or any part of any material claim, under or in connection with
any agreement to which it is a party, or (iii) enter into any material agreement with any
Person, unless in the case of (i) and (ii) the Loan Parties reasonably determine that
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such amendment, settlement or payment results in cash savings or improved liquidity for
the Loan Parties after written notice to and consultation with the Required Lenders.
(b) Terms of Financing and Restructuring. The Loan Parties shall negotiate in
good faith and use their best efforts to agree by October 26, 2009 to (i) documentation for
additional debt financing acceptable to the Required Lenders, and (ii) documentation for an
overall debt and/or equity restructuring acceptable to the Lenders under applicable law.
(c) Obligations. The Borrower shall pay in full all principal, interest, and
any other Obligations (other than the Specified Amounts) due and payable during the Waiver
Period.
(d) Liquidity. The Loan Parties shall during the Waiver Period (i) at all
times cause minimum Liquidity to be no less than $1,500,000, (ii) as of the last Business
Day of any week, cause minimum Adjusted Liquidity to be no less than $1,500,000, and (iii)
promptly notify the Agents and the Lender Parties if (A) Liquidity is less than $2,000,000
at any time or (B) Adjusted Liquidity is less than $2,000,000 as of the last Business Day of
any week.
(e) Meetings and Additional Information. The Loan Parties shall respond
promptly to any reasonable requests for additional information by any Lender, its counsel or
financial advisors.
(f) Distributions to Parent. During the Waiver Period, the Borrower shall not
declare and pay cash dividends to Parent in excess of an aggregate amount of $375,000 to
permit Parent to pay (i) reasonable and customary corporate and operating expenses
(including reasonable out-of-pocket expenses for legal, administrative and accounting
services provided by third parties, and compensation, benefits and other amounts payable to
officers and employees in connection with their employment in the ordinary course of
business and to board of director observers) and (ii) franchise fees or similar taxes and
fees required to maintain its corporate existence.
(g) Sale of Assets. The Loan Parties shall not sell, lease, transfer or
otherwise dispose of, or permit any of their Subsidiaries to sell, lease, transfer of
otherwise dispose of, any assets, or grant any option or other right to purchase, lease or
otherwise acquire, or permit any of their Subsidiaries to grant any option or other right to
purchase, lease or otherwise acquire, any assets except as expressly permitted by Sections
5.02(e)(i) and 5.02(e)(iii) of the Credit Agreement (which permission is hereby extended
through and including the last day of the Waiver Period).
(h) Consents, Waivers. The Loan Parties shall, and shall cause their
Subsidiaries to, use their best efforts to (i) obtain all necessary consents and/or waivers
of any Person that has any rights under any agreement with any Loan Party or any of its
Subsidiaries arising from any bankruptcy, insolvency, reorganization or any similar
proceeding with respect to the Parent and/or Borrower, or any change of control provision
therein that could have an adverse effect on the Parent or any of its Subsidiaries
8
or Affiliates and (ii) seek a settlement, amendment or resolution, as applicable, with
respect to (A) material claims and obligations asserted by any third party against any Loan
Party or any of its Subsidiaries or Affiliates, and (B) material agreements between or among
any Loan Party and any of its Subsidiaries or Affiliates on the one hand, and one or more
third parties, on the other hand, in the case of each of (A) and (B) including, without
limitation, such claims, obligations and agreements set forth in the list provided to
counsel for the Borrower by counsel to the Represented Lenders on or prior to the date
hereof.
SECTION 8. Release. In consideration of the foregoing, each of the Loan Parties and
its successors and assigns (collectively, the “Releasors”), as applicable, release and forever
discharge the Agents, the Issuing Bank, and each Lender that executes this Limited Waiver, and
their respective affiliates, officers, directors, employees, agents, attorneys, predecessors,
successors and assigns, both present and former (collectively, together with the Agents, the
Issuing Bank and each Lender, the “Bank Affiliates”), of and from any and all manner of action and
actions, causes of action, suits, debts, controversies, damages, judgments, executions, claims and
demands whatsoever, asserted or unasserted, in law or in equity, relating to or arising out of any
Loan Document, against any of the Bank Affiliates which any Releasor ever had or now has on the
date hereof, upon or by reason of any manner, cause, causes or thing whatsoever, whether presently
existing, suspected, known, unknown, contemplated or anticipated.
SECTION 9. GOVERNING LAW. THIS LIMITED WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Miscellaneous. The failure of any Loan Party to timely perform any of its
obligations under Section 7 hereof shall constitute an immediate and automatic
Event of Default. This Limited Waiver constitutes the entire agreement of the parties with respect
to the subject matter hereof and supersedes any prior understanding or agreement which may have
existed with respect thereto. The waivers, consent and forbearance set forth in Sections
1, 2, and 3 of this Limited Waiver shall not apply to any other provision
of the Credit Agreement, and shall be limited precisely as written, and shall only be effective
during the Waiver Period. Except as expressly provided herein, this Limited Waiver shall not, by
implication or otherwise, limit, impair, constitute a waiver of or otherwise affect any right or
remedy of the Agents or the Lender Parties under the Credit Agreement or the other Loan Documents,
nor alter, modify, amend or in any way affect any of the obligations or covenants contained in the
Credit Agreement or any of the other Loan Documents, all of which are ratified and confirmed in all
respects and shall continue in full force and effect. To the extent there is any inconsistency
between the terms and provisions of any Loan Document and the terms and provisions of this Limited
Waiver, the terms and provisions of this Limited Waiver shall govern. The headings used in this
Limited Waiver are for convenience of reference only and shall not in any way be deemed to limit,
define or describe the scope and intent of this Limited Waiver or any provision hereof. This
Limited Waiver shall be binding upon and inure to the benefit of each of the Lenders, the Agents
and the Issuing Bank and each of the Loan Parties, and to each of their respective successors and
assigns. This Limited Waiver may not be modified or amended except by a written instrument
executed by the party to be charged. Execution and delivery of this Limited Waiver by facsimile
transmission shall constitute execution and delivery of this Limited
9
Waiver for all purposes, with the same force and effect as execution and delivery of an
original manually signed copy hereof. This Limited Waiver may be executed in any number of
counterparts by different parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and same
agreement. Delivery by telecopier of an executed counterpart of a signature page to this Limited
Waiver shall be effective as delivery of an original executed counterpart of this Limited Waiver.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver to be duly executed by
their duly authorized officers, all as of the date first above written.
| Very truly yours, TLC VISION (USA) CORPORATION, as Borrower |
||||
| By: | /s/ Xxxxxxx XxXxxxx | |||
| Name: | Xxxxxxx XxXxxxx | |||
| Title: | Interim CFO | |||
| TLC VISION CORPORATION, as Parent and Guarantor |
||||
| By: | /s/ Xxxxxxx XxXxxxx | |||
| Name: | Xxxxxxx XxXxxxx | |||
| Title: | Interim CFO | |||
[Signature Page to Limited Waiver]
Annex A
CONSENT
Dated as of September 30, 2009
We, the undersigned, as Guarantors under the Guaranty and Grantors under the Security Agreements
and the Intellectual Property Security Agreement (each as defined in the Credit Agreement) in favor
of the Administrative Agent and, for its benefit and the benefit of the Lenders party to the Credit
Agreement referred to in the foregoing Limited Waiver and Limited Waiver to Credit Agreement
(“Limited Waiver”), hereby consent to such Limited Waiver and hereby confirm and agree that
notwithstanding the effectiveness of such Limited Waiver, each of the Guaranty, the Security
Agreements and the Intellectual Property Security Agreement is, and shall continue to be, in full
force and effect and is hereby ratified and confirmed in all respects.
| GUARANTORS TLC VISION CORPORATION |
||||
| By: | /s/ Xxxxxxx XxXxxxx | |||
| Name: | Xxxxxxx XxXxxxx | |||
| Title: | Interim CFO | |||
[Signature Page to Limited Waiver]
| AMERICAN EYE INSTRUMENTS, INC. | ||||||||
| LASER EYE SURGERY, INC. | ||||||||
| LASER VISION CENTERS, INC. | ||||||||
| LVCI CALIFORNIA, LLC | ||||||||
| By: Laser Vision Centers, Inc., its Member | ||||||||
| SIGHTPATH MEDICAL INC. | ||||||||
| OR PARTNERS, INC. | ||||||||
| O.R. PROVIDERS, INC. | ||||||||
| SOUTHEAST MEDICAL, INC. | ||||||||
| SOUTHERN OPHTHALMICS, INC. | ||||||||
| TLC CAPITAL CORPORATION | ||||||||
| TLC FLORIDA EYE LASER CENTER, LLC | ||||||||
| By: TLC THE LASER CENTER (INSTITUTE) INC., ITS MEMBER | ||||||||
| TLC LASER EYE CENTERS (ATAC), LLC | ||||||||
| TLC LASER EYE CENTERS (REFRACTIVE I) INC. | ||||||||
| TLC MANAGEMENT SERVICES, INC. | ||||||||
| TLC MIDWEST EYE LASER CENTER, INC. | ||||||||
| TLC THE LASER CENTER (ANNAPOLIS) INC. | ||||||||
| TLC THE LASER CENTER (BALTIMORE MANAGEMENT) LLC | ||||||||
| TLC THE LASER CENTER (BALTIMORE) INC. | ||||||||
| TLC THE LASER CENTER (BOCA RATON) LIMITED PARTNERSHIP | ||||||||
| By: (NORTHEAST) INC., ITS GENERAL PARTNER | ||||||||
| TLC THE LASER CENTER (CAROLINA) INC. | ||||||||
| TLC THE LASER CENTER (CONNECTICUT) L.L.C. | ||||||||
| By: TLC THE LASER CENTER (NORTHEAST) INC., ITS SOLE MEMBER | ||||||||
| TLC THE LASER CENTER (INSTITUTE) INC. | ||||||||
| TLC THE LASER CENTER (NORTHEAST) INC. | ||||||||
| TLC VC, LLC | ||||||||
| TLC VISION SOURCE, INC. | ||||||||
| TLC XXXXXXX LASER EYE ASSOCIATES, LLC | ||||||||
| By: TLC THE LASER CENTER (NORTHEAST) INC., ITS MEMBER | ||||||||
| TRUVISION, INC. | ||||||||
| TRUVISION CONTACTS, INC. | ||||||||
| TRUVISION PROVIDER ONLINE SERVICES, INC. | ||||||||
| VALLEY LASER EYE CENTER, LLC | ||||||||
| By: LASER VISION CENTERS, INC., ITS SOLE MEMBER | ||||||||
| By: | /s/ Xxxxxxx XxXxxxx | |||||||
| Name: | Xxxxxxx XxXxxxx | |||||||
| Title: | Interim CFO | |||||||
[Signature Page to Limited Waiver]
| TLC THE LASER CENTER (MONCTON) INC. | ||||||
| RHEO CLINIC INC. | ||||||
| VISION CORPORATION | ||||||
| By: | /s/ Xxxxxxx XxXxxxx | |||||
| Name: Xxxxxxx XxXxxxx | ||||||
| Title: Interim CFO | ||||||
[Signature Page to Limited Waiver]
| Agreed to and Accepted By: | ||||
| Brentwood CLO Ltd. | ||||
| By: Highland Capital Management, L.P. | ||||
| As Investment Manager | ||||
By:
|
/s/ XXXXX XXXX
|
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| Name: XXXXX XXXX | ||||
| Title: OPERATIONS DIRECTOR | ||||
[Signature Page to Limited Waiver]
| Agreed to and Accepted By: | ||||
| Loan Funding IV LLC | ||||
| By: Highland Capital Management, L.P., As Investment Manager | ||||
By:
|
/s/ XXXXX XXXX
|
|||
| Name: XXXXX XXXX | ||||
| Title: OPERATIONS DIRECTOR | ||||
[Signature Page to Limited Waiver]
| Agreed to and Accepted By: | ||||
| Emerald Orchard Limited | ||||
By:
|
/s/ XXXXXX XXXXXXXX
|
|||
| Name: XXXXXX XXXXXXXX | ||||
| Title: AUTHORIZED SIGNATORY | ||||
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Greenbriar CLO, Ltd.
By: Highland Capital Management, L.P., As Investment Manager
By: Highland Capital Management, L.P., As Investment Manager
By:
|
/s/ XXXXX XXXX
|
|||
| Title: OPERATIONS DIRECTOR |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
HCSMF SCOTIA SWAP
By:
|
/s/ XXXXXX XXXXXXXX
|
|||
| Title: AUTHORIZED SIGNATORY |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Loan Star State Trust
By: Highland Capital Management, L.P., As Investment Manager
By: Highland Capital Management, L.P., As Investment Manager
By:
|
/s/ XXXXX XXXX
|
|||
| Title: OPERATIONS DIRECTOR |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Longhorn Credit Funding, LLC
By: Highland Capital Management, L.P., As Investment Manager
By: Highland Capital Management, L.P., As Investment Manager
By:
|
/s/ XXXXX XXXX
|
|||
| Title: OPERATIONS DIRECTOR |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Red River CLO Ltd.
By: Highland Capital Management, L.P.
As Investment Manager
By: Highland Capital Management, L.P.
As Investment Manager
By:
|
/s/ XXXXX XXXX
|
|||
| Title: OPERATIONS DIRECTOR |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Rockwall CDO II Ltd.
By: Highland Capital Management, L.P.
As Investment Manager
By: Highland Capital Management, L.P.
As Investment Manager
By:
|
/s/ XXXXX XXXX
|
|||
| Title: OPERATIONS DIRECTOR |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Southfork CLO, Ltd.
By: Highland Capital Management, L.P., As Investment Manager
By: Highland Capital Management, L.P., As Investment Manager
By:
|
/s/ XXXXX XXXX
|
|||
| Title: OPERATIONS DIRECTOR |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Loan Funding VII LLC
By: Highland Capital Management, L.P., As Investment Manager
By: Highland Capital Management, L.P., As Investment Manager
By:
|
/s/ XXXXX XXXX
|
|||
| Title: OPERATIONS DIRECTOR |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
XXXX FORCE 1 CLO. LTD.
By: GSO/Blackstone Debt Funds Management LLC
as Collateral Manager
By: GSO/Blackstone Debt Funds Management LLC
as Collateral Manager
By:
|
/s/ Xxxx X. Xxxxxxx
|
|||
| Title: Authorized Signatory |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
XXXX FORCE 3 CLO. LTD.
By: GSO/Blackstone Debt Funds Management LLC
as Collateral Manager
By: GSO/Blackstone Debt Funds Management LLC
as Collateral Manager
By:
|
/s/ Xxxx X. Xxxxxxx
|
|||
| Title: Authorized Signatory |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
FM LEVERAGED CAPITAL FUND II
By: GSO/Blackstone Debt Funds Management LLC
as Subadviser to FriedbergMilstein LLC
By: GSO/Blackstone Debt Funds Management LLC
as Subadviser to FriedbergMilstein LLC
By:
|
/s/ Xxxx X. Xxxxxxx
|
|||
| Title: Authorized Signatory |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
MONUMENT PARK CDO LTD.
By: Blackstone Debt Advisors L.P.
as Collateral Manager
By: Blackstone Debt Advisors L.P.
as Collateral Manager
By:
|
/s/ Xxxx X. Xxxxxxx
|
|||
| Title: Authorized Signatory |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
CIFC Funding 2007-48, LTD.
By:
|
/s/ Xxxxxx Xxxxxxx
|
|||
| Title: Authorized Signatory |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
CIFC Funding 2007- IV, Ltd.
By:
|
/s/ Xxx Xxxx
|
|||
| Title: Head of Institutional Relationships |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Denali Capital LLC, managing member of
DC Funding Partners LLC, Collateral Manager for
Spring Road CLO 2007-1, LTD., or an affiliate
DC Funding Partners LLC, Collateral Manager for
Spring Road CLO 2007-1, LTD., or an affiliate
By:
|
/s/ XXXX X. XXXXXXX
|
|||
| Title: CHIEF CREDIT OFFICER |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Pangaea CLO 2007-1 LTD.
By: Pangaea Asset Management, LLC, its
Collateral Manager
By: Pangaea Asset Management, LLC, its
Collateral Manager
By:
|
/s/ Xxxx X. Xxxxxxx
|
|||
| Title: Assistant Secretary |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
Sargas CLO I LTD.
By: Sargas Asset Management, LLC, its
Portfolio Manager
By: Sargas Asset Management, LLC, its
Portfolio Manager
By:
|
/s/ Xxxx X. Xxxxxxx
|
|||
| Title: Assistant Secretary |
[Signature Page to Limited Waiver]
Agreed to and Accepted By:
ACA CLO 2007-1, LTD
By: Its investment advisor
Apidos Capital Management, LLC
By: Its investment advisor
Apidos Capital Management, LLC
By:
|
/s/ Xxxxxxx Xxxxxx
|
|||
| Title: Managing Director |
[Signature Page to Limited Waiver]
Schedule 1
Specified Amounts
Specified Amounts
| Type of Payment | Specified Amount | Due Date | ||||||
1. Mandatory Prepayment from Net Cash Proceeds of a tax refund for the Fiscal Year ended December 31, 2008 |
$ | 1,434,000.00 | July 1, 2009 | |||||
2. Commitment Fees |
$ | 465.17 | June 30, 2009 | |||||
3. Commitment Fees |
$ | 621.40 | September 30, 2009 | |||||
4. Interest on the Term Advances and Revolving Credit Advances |
$ | 227,304.97 | June 30, 2009 | |||||
5. Interest on the Term Advances |
$ | 275,383.36 | July 1, 2009 | |||||
6. Interest on the Term Advances and Revolving Credit Advances |
$ | 2,319,859.52 | September 30, 2009 | |||||
7. Amortization of the Term Advances |
$ | 212,500.00 | June 30, 2009 | |||||
8. Amortization of the Term Advances |
$ | 212,500.00 | September 30, 2009 | |||||
9. Letter of Credit Fees |
$ | 2,211.81 | June 30, 2009 | |||||
10. Letter of Credit Fees |
$ | 16,739.81 | September 30, 2009 | |||||
Schedule 2
Specified Defaults
1. Event of Default under Section 6.01(c) of the Credit Agreement because the Borrower failed to
comply with the Total Leverage Ratio and Fixed Charge Coverage Ratio in Section 5.04 of the Credit
Agreement for the Measurement Periods ended December 31, 2008, March 31, 2009, June 30, 2009, and
September 30, 2009.
2. Event of Default under the Credit Agreement because the Borrower received an audit opinion with
respect to the Fiscal Year ended December 31, 2008 that contains a going concern qualification.
3. Default or Event of Default under Section 6.01(d) of the Credit Agreement because the Borrower
failed to comply with Section 5.03(a) of the Credit Agreement by not giving notice of any of the
Events of Default listed in paragraphs 1 and 2 above.
4. Default under Section 6.01(d) of the Credit Agreement because the Borrower failed to maintain
its corporate ratings from Xxxxx’x and S&P.
5. Default or Event of Default under Section 6.01(e) of the Credit Agreement because the Borrower
failed to make payments due under any interest rate Hedge Agreement.
6. Default or Event of Default under Section 6.01(c) of the Credit Agreement because the Borrower
failed to comply with Section 5.01(p) of the Credit Agreement by failing to maintain interest rate
Hedge Agreements as set forth therein.
7. Event of Default under Section 6.01(d) of the Credit Agreement because the Loan Parties failed
to comply with Section 6(c) of Amendment No. 5 to Credit Agreement by not causing TLC Management
Services, Inc. to merge into the Borrower by September 21, 2009.
