Limited Waiver, dated as of October 13, 2009

EX-10.1 2 c54221exv10w1.htm EX-10.1 exv10w1

Exhibit 10.1

EXECUTION COPY

Dated as of October 13, 2009

TLC Vision (USA) Corporation
16305 Swingley Ridge Road, Suite 300
Chesterfield, MO 63017
Attention: Michael Gries

Re:

Amendment to Limited Waiver

Ladies and Gentlemen:

We refer to the Limited Waiver, dated as of September 30, 2009, among TLC Vision (USA) Corporation (the “Borrower”), TLC Vision Corporation (“Parent”), as Guarantor, the Additional Guarantors, and the Required Lenders party thereto (the “Limited Waiver”). Capitalized terms used but not defined in this Amendment to Limited Waiver (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 the Waiver Period (as defined in the Limited Waiver). Accordingly, the Loan Parties hereby agree with the undersigned Required Lenders as follows:

SECTION 1. Amendment to Limited Waiver. Section 1(d) of the Limited Waiver is hereby amended as set forth below:

(a) by amending and restating clause (v) thereof in its entirety as follows:

“(v) “Waiver Period” means the period commencing on the Limited Waiver Effective Date and ending on the earliest to occur of (A) November 15, 2009, (B) the occurrence of any Default or Event of Default (other than a Specified Default or a Payment Default), (C) October 21, 2009, unless on or before such date the Administrative Agent and counsel to the Required Lenders has received a copy of an engagement letter, substantially in the form agreed between the steering committee for the Lenders and the Parent, duly executed by the Parent and a restructuring monitor satisfactory to the steering committee for the Lenders and the Parent, (D) the restructuring monitor party to the engagement letter referred to in clause (C) hereof ceases to be retained by the Parent as restructuring monitor to assist the Parent and its Subsidiaries with the implementation of the Restructuring, and (E) the date on which the steering committee for the Lenders reasonably determines that the Loan Parties are not making satisfactory progress with respect to the implementation and pursuit of the Restructuring”, and

(b) by inserting the following new clauses (vi) and (vii) at the end thereof:

“(vi) “Required Consenting Lenders” means, as of any date of determination, the Lender Parties and Hedge Banks holding more than sixty-six and two-thirds percent (66²/3%) of the aggregate amount of the Obligations under the Loan Documents and

constituting more than fifty percent (50%) in number of all the Lender Parties and Hedge Banks; and

(vii) “Restructuring” means the restructuring of certain obligations and other liabilities of the Parent and certain of its Subsidiaries and other related transactions contemplated in connection therewith, proposed terms of which have been discussed between the Loan Parties and the Lenders, subject to (A) the completion of certain proposed transactions prior to the implementation of such restructuring and other transactions, (B) the negotiation, execution and delivery of definitive documentation on terms satisfactory to the Required Consenting Lenders and (C) completion of all conditions precedent satisfactory to the Required Consenting 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.

(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 or Payment Defaults.

(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 Subsidiaries 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 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 4. Conditions to Effectiveness This Amendment to Limited Waiver shall become effective if, and only if, on or before October 21, 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 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) 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 date hereof, of the records of all corporate action taken by such Person to authorize (A) such Person’s execution and delivery of this Amendment to Limited Waiver, and (B) such Person’s performance of all of its agreements and obligations under this Amendment to Limited Waiver. Such certified copies shall be in form and substance reasonably satisfactory to the Required Lenders.

(c) Incumbency Certificate. The Administrative Agent and counsel to the Required Lenders shall have received incumbency certificates, dated as of the date hereof, 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 (i) to sign, in the name and on behalf of such Person this Amendment to Limited Waiver, and (ii) to give notices and to take other action on behalf of such Person under this Amendment to Limited Waiver and the Loan Documents. Such certified copies or certificate shall be in form and substance reasonably satisfactory to the Required Lenders.

(d) 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 the effectiveness of this Amendment to Limited Waiver set forth in this Section 4 have been satisfied in all respects.

(e) 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 (“Bingham”), 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 for the benefit of the Lenders represented by it, pursuant to the engagement letter, dated as of February 20, 2009, (iii) Stikeman Elliott LLP, Canadian counsel engaged by Bingham for the benefit of the Lenders represented by it, pursuant to

the fee agreement dated as of February 10, 2009, and (iv) the Agents, pursuant to Section 9.04 of the Credit Agreement.

SECTION 5. 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 Amendment to 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 6. GOVERNING LAW. THIS AMENDMENT TO LIMITED WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

SECTION 7. Miscellaneous. This Amendment to Limited Waiver constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any prior understandings or agreements which may have existed with respect thereto. Except as expressly provided herein, 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 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 Amendment to Limited Waiver, the terms and provisions of this Amendment to Limited Waiver shall govern. The headings used in this Amendment to 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 Amendment to Limited Waiver or any provision hereof. This Amendment to 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 Amendment to 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 Amendment to Limited Waiver by facsimile transmission or other electronic means shall constitute execution and delivery of this Amendment to Limited Waiver for all purposes, with the same force and effect as execution and delivery of an original manually signed copy hereof. This Amendment to 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.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to 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/ William McManus
	Name:	William McManus
	Title:	Interim CFO

TLC VISION CORPORATION, as Parent and Guarantor
By:	/s/ William McManus
	Name:	William McManus
	Title:	Interim CFO

Annex A

CONSENT

Dated as of October 13, 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 Agents and, for their benefit and the benefit of the Lenders party to the Credit Agreement referred to in the foregoing Amendment to Limited Waiver (“Amendment to Limited Waiver”), hereby consent to such Amendment to Limited Waiver and hereby confirm and agree that notwithstanding the effectiveness of such Amendment to 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/ William McManus
	Name:	William McManus
	Title:	Interim CFO

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 WHITTEN 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/ William McManus
	Name:	William McManus
	Title:	Interim CFO

TLC THE LASER CENTER (MONCTON) INC.
RHEO CLINIC INC.
VISION CORPORATION



By:	/s/ William McManus
	Name:	William McManus
	Title:	Interim CFO


Agreed to and Accepted By: Brentwood CLO Ltd.
By:	/s/ Michael Pusateri
	Name:	Michael Pusateri
	Title:	Chief Operating Officer