EXHIBIT 10.89
July 31, 2002
Staar Surgical Company
1911 Walker Avenue
Monrovia, California 91016
Attention: John Bily
Chief Financial Officer
Re: First Amendment to Amended and Restated Credit Agreement
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement dated as of March
29, 2002 (the "Credit Agreement") between Staar Surgical Company, a Delaware
corporation (the "Borrower"), and Wells Fargo Bank, National Association, a
national banking association (the "Bank"). Terms defined in the Credit Agreement
and not otherwise defined herein have the same respective meanings when used
herein.
1. Amendments to Credit Agreement. As of the effective date of this
letter amendment but subject to satisfaction of the terms and conditions
specified herein, the Credit Agreement is hereby amended as set forth below.
(a) Section 1.1(a) of the Credit Agreement is amended by
deleting the amount "$7,000,000" and substituting "$7,000,000, as such amount is
reduced from time to time pursuant to Sections 1.1(c) and 1.4(a)."
(b) Section 1.1 of the Credit Agreement is amended by adding
a new subsection (c) to read as follows:
"(c) Mandatory Reduction of Line of Credit. On each
date specified in Schedule 3, the Line of Credit shall be automatically
and permanently reduced to the amount set forth opposite such date under
the heading `Line of Credit,' but only if and to the extent that the
Line of Credit has not previously been reduced to such amount or less
pursuant to Section 1.4(a)."
(c) The table set forth in Section 1.2(c) of the Credit
Agreement is amended in full to read as follows:
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July 31, 2002
Page 2
Level Funded Debt to EBITDA Ratio Applicable Interest Margin
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
1 greater than or =0.00:1.00 but less than 2.00:1.00 1.00% per annum
- -----------------------------------------------------------------------------
2 greater than or =2.00:1.00 but less than 4.00:1.00 2.00% per annum
- -----------------------------------------------------------------------------
3 greater than or =4.00:1.00 but less than 6.00:1.00 3.00% per annum
- -----------------------------------------------------------------------------
4 greater than or =6.00:1.00 or less than 0.00:1.00 4.00% per annum
- -----------------------------------------------------------------------------
(d) The table set forth in Section 1.2(f) of the Credit
Agreement is amended in full to read as follows:
Level Funded Debt to EBITDA Ratio Applicable Fee Rate
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
1 greater than or =0.00:1.00 but less than 2.00:1.00 0.25% per annum
- -----------------------------------------------------------------------------
2 greater than or =2.00:1.00 but less than 4.00:1.00 0.50% per annum
- -----------------------------------------------------------------------------
3 greater than or =4.00:1.00 but less than 6.00:1.00 0.75% per annum
- -----------------------------------------------------------------------------
4 greater than or =6.00:1.00 or less than 0.00:1.00 1.00% per annum
- -----------------------------------------------------------------------------
(e) Section 1.4 of the Credit Agreement is amended by adding
a new subsection (c) to read as follows:
"(c) Overadvances. If at any time the aggregate
principal amount of advances outstanding under this Agreement exceeds
the maximum amount of the Line of Credit, Borrower will immediately,
without any notice or request by Bank, repay the advances in the amount
equal to such excess."
(f) Section 4.2 of the Credit Agreement is amended by
deleting the word "June" therein and substituting "the third quarter."
(g) Section 4.3(e) of the Credit Agreement is amended by
inserting "for such month and" immediately after the second reference to
"Borrower."
(h) Section 4.3 of the Credit Agreement is further amended
by deleting the word "and" immediately after the semicolon in subsection (h), by
re-lettering subsection (i) as subsection (j) and by inserting a new subsection
(i) to read as follows:
"(i) within 45 days after the end of each fiscal
quarter of Borrower, written notice in reasonable detail of (i) the
filing during such quarter of any application by or on behalf of
Borrower or any Subsidiary thereof with the United States Patent and
Trademark Office, the United States Copyright
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July 31, 2002
Page 3
Office or any other office with respect to, or the acquisition during
such quarter by Borrower or any Subsidiary thereof of any interest in
(including, without limitation, any interest as exclusive licensee), any
patent, trademark, copyright or other intellectual property, together
with a copy of such application or the documentation concerning such
acquisition, as applicable, and (ii) in the event that no such filing or
acquisition has been made during such quarter, a certificate executed by
the Chief Financial Officer of Borrower certifying to that effect; and."
(i) Section 4.9 of the Credit Agreement is amended by
restating subsections (b), (c), (d), (e), (f), (g) and (h) in full to read as
follows:
"(b) Tangible Net Worth, tested as of the last day of
each fiscal month commencing with August of 2002, not less than
$26,500,000, with `Tangible Net Worth' being defined as the aggregate of
total stockholders' equity plus subordinated debt less any intangible
assets;
"(c) for each fiscal month of Borrower, operating
cash flow (as defined in accordance with Financial Accounting Standards
Board Statement No. 95 (`FASB 95')) to be greater than the sum of
required capitalized lease payments plus required debt repayments plus
capital expenditures (as defined in accordance with FASB 95), tested as
of the last day of each such fiscal month commencing with August of
2002; provided, however, that, if Borrower fails to comply with the
foregoing covenant in respect of any fiscal month, then such failure
shall not constitute a default of such covenant unless Borrower fails to
comply with such covenant when applied to such fiscal month combined
with the immediately preceding fiscal month; further provided, however,
that, if Borrower fails to comply with the foregoing covenant in respect
of any fiscal month and the immediately preceding fiscal month, then
such failure shall not constitute a default of such covenant unless
Borrower fails to comply with such covenant when applied to such fiscal
month combined with the immediately preceding two fiscal months;
"(d) for each fiscal month of Borrower, negative
variance from projected revenues (based on the monthly and quarterly
projections attached hereto as Schedule 2) to be less than 15%, tested
as of the last day of each fiscal month commencing with August of 2002;
provided, however, that, if Borrower fails to comply with the foregoing
covenant in respect of any fiscal month, then such failure shall not
constitute a default of such covenant unless Borrower fails to comply
with such covenant when applied to such fiscal month combined with the
immediately preceding fiscal month; further provided, however, that, if
Staar Surgical Company
July 31, 2002
Page 4
Borrower fails to comply with the foregoing covenant in respect of any
fiscal month and the immediately preceding fiscal month, then such
failure shall not constitute a default of such covenant unless Borrower
fails to comply with such covenant when applied to such fiscal month
combined with the immediately preceding two fiscal months;
"(e) negative variance from projected net operating
income or loss (based on the monthly and quarterly projections attached
hereto as Schedule 2) for each period of three consecutive fiscal months
to be less than $250,000 in the aggregate for such months, tested as of
the last day of each fiscal month commencing with August of 2002, with
`net operating income or loss' being defined as income or loss before
interest income or expense, equity in earnings of any unconsolidated
affiliate, currency-exchange gains or losses, any other income or
expenses, taxes and minority interests in affiliates;
"(f) [Intentionally Omitted.];
"(g) [Intentionally Omitted.]; and
"(h) ratio of total liabilities to Tangible Net Worth
not more than 0.80 to 1.00, tested as of the last day of each fiscal
month commencing with August of 2002."
(j) Section 4.10 of the Credit Agreement is amended by
inserting the word "and" immediately before subsection (e) therein, by deleting
the word "and" immediately before subsection (f) therein and by deleting
subsection (f) in its entirety.
(k) Section 4.11 of the Credit Agreement is amended by
adding the following before the period at the end thereof:
"; provided, however, that, on August 7, 2002, $2,000,000 in cash
proceeds of such liquid assets shall be released from the lien in favor
of Bank and applied to the principal amount of advances outstanding
under this Agreement, and the remainder, if any, of such liquid assets
shall be subject to the instructions of Borrower."
(l) Schedule 2 to the Credit Agreement is amended in full to
be in the form attached hereto as Schedule 2.
(m) A new Schedule 3 is added to the Credit Agreement to be
in the form attached hereto as Schedule 3.
Staar Surgical Company
July 31, 2002
Page 5
(n) Exhibit A to the Credit Agreement is amended in full to
be in the form attached hereto as Exhibit A.
(o) Exhibit C to the Credit Agreement is amended in full to
be in the form attached hereto as Exhibit C.
2. Waiver of Events of Default under Credit Agreement. As of the
effective date of this letter amendment but subject to satisfaction of the terms
and conditions specified herein, the Bank hereby waives (subject, in the case of
clause (a) below, to the provisions of paragraph 5 hereof) the Events of Default
caused by the Borrower's violation of (a) the covenant contained in Section
4.3(a)(ii) of the Credit Agreement by failing to deliver a copy of a letter of
Borrower's accountants to the management of Borrower in connection with
Borrower's 2001 annual audited financial statements, (b) the covenant contained
in Section 4.9(c) of the Credit Agreement with respect to April, May, June and
July of 2002 and (c) the covenant contained in Section 4.9(e) of the Credit
Agreement with respect to April, May, June and July of 2002.
3. Representations and Warranties. The Borrower hereby represents
and warrants for the benefit of the Bank that (a) the representations and
warranties of the Borrower contained in the Loan Documents are correct in all
material respects on and as of the effective date of this letter amendment,
before and after giving effect to the same, as if made on and as of such date,
and (b) no event has occurred and is continuing, or would result from the
effectiveness of this letter amendment, that constitutes an Event of Default.
4. Conditions Precedent. This letter amendment shall become
effective as of the date first set forth above, subject to the condition
subsequent set forth in paragraph 5 below, when and if (a) the Borrower and the
Bank execute counterparts of this letter amendment and deliver them to each
other, (b) the Borrower executes a new Line of Credit Note substantially in the
form of Exhibit A to the Credit Agreement, as amended, and delivers it to the
Bank, (c) the Bank receives from the Borrower an amendment fee in the amount of
$11,250 (i.e., 0.25% of $4,500,000) and (d) the Borrower, the Bank and Wells
Fargo Brokerage Services, LLC execute counterparts of a letter substantially in
the form of Exhibit A attached hereto and deliver them to each other.
5. Condition Subsequent. The Borrower's delivery to the Bank, not
later than September 30, 2002, of a copy of the letter prepared by BDO Seidman
to the management of Borrower in connection with the Borrower's 2001 annual
audited financial statements shall be a condition subsequent to the
effectiveness of this letter amendment.
Staar Surgical Company
July 31, 2002
Page 6
6. Release of Claims. The Borrower represents and warrants to the
Bank that it has diligently and thoroughly investigated the existence of any
Claim (as defined below) and that, to its knowledge and belief, no Claim exists
and no facts exist that could give rise to or support a Claim. As additional
consideration for the Bank's entering into this letter amendment, the Borrower
and each of its agents, employees, directors, officers, attorneys, affiliates,
subsidiaries, successors and assigns (each a "Releasing Party") hereby release
and forever discharge the Bank and each of its agents, direct and indirect
shareholders, employees, directors, officers, attorneys, branches, affiliates,
subsidiaries, successors and assigns (each a "Released Party") from any and all
damages, losses, claims, demands, liabilities, obligations, actions and causes
of action whatsoever (collectively "Claims") that the Releasing Parties or any
of them may, as of the effective date of this letter amendment, have or claim to
have against any or all of the Released Parties, in each case whether currently
known or unknown or with respect to which the facts are known (or should have
been known), that could give rise to or support a Claim on account of or in any
way relating to, arising out of or based upon any Loan Document, any amendment,
waiver or other modification with respect thereto, the negotiation or
documentation hereof or thereof, any of the transactions contemplated hereby or
thereby, or any action or omission in connection with any of the foregoing,
including all such damages, losses, claims, demands, liabilities, obligations,
actions and causes of action heretofore sustained or that may arise as a
consequence of the dealings between the parties up to the effective date of this
letter amendment in connection with or in any way related to any Loan Document
or any amendment, waiver or other modification with respect thereto. Each
Releasing Party further represents and warrants that it has not heretofore
assigned, and covenants and agrees that it will not hereafter sue any Released
Party upon, any Claim released or purported to be released under this section.
Each Releasing Party will indemnify and hold harmless the Released Parties
against any loss or liability on account of any actions brought by any Releasing
Party or its assigns or prosecuted on behalf of any Releasing Party and relating
to any Claim released or purported to be released under this section. It is
further understood and agreed that any and all rights under the provisions of
Section 1542 of the California Civil Code are expressly waived by each of the
Releasing Parties. Section 1542 of the California Civil Code provides as
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
7. Reference to and Effect on Loan Documents. On and after the
effective date of this letter amendment, (a) each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement," "thereunder,"
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July 31, 2002
Page 7
"thereof," "therein" or words of like import referring to the Credit Agreement,
shall mean and be a reference to the Credit Agreement as amended by this letter
amendment, and (b) each reference in the other Loan Documents to "the Line of
Credit Note," "thereunder," "thereof," "therein" or words of like import
referring to the Line of Credit Note shall mean and be a reference to the new
Line of Credit Note executed by the Borrower in connection with this letter
amendment. The Credit Agreement, as amended by this letter amendment, is and
shall continue to be in full force and effect and is hereby ratified and
confirmed in all respects.
8. Execution in Counterparts. This letter amendment may be executed
in any number of counterparts and by the parties hereto in separate
counterparts, each of which counterparts shall be an original and all of which
taken together shall constitute one and the same letter amendment.
9. GOVERNING LAW. THIS LETTER AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA
WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES THEREOF.
Very truly yours,
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Edith R. Lim
---------------------------
Name: Edith R. Lim
-------------------------
Title: Vice President
------------------------
Agreed as of the date first written above:
STAAR SURGICAL COMPANY
By: /s/ John Bily
-----------------------------------
Name: John Bily
---------------------------------
Title: Chief Financial Officer
--------------------------------
AMENDED AND RESTATED REVOLVING LINE OF CREDIT NOTE
$7,000,000.00 Monrovia, California
July 31, 2002
FOR VALUE RECEIVED, the undersigned, STAAR SURGICAL COMPANY, a Delaware
corporation ("Borrower"), promises to pay to the order of WELLS FARGO BANK,
NATIONAL ASSOCIATION, a national banking association ("Bank"), at its office at
333 South Grand Avenue, Los Angeles, California 90071, or at such other place as
the holder hereof may designate, in lawful money of the United States of America
and in immediately available funds, the principal amount of seven million
dollars ($7,000,000.00), or so much thereof as may be advanced and be
outstanding, with interest thereon, to be computed on each advance from the date
of its disbursement as set forth herein.
INTEREST:
(a) Interest. The outstanding principal balance of this Note shall
bear interest (computed on the basis of a 360-day year and actual days elapsed)
at a rate per annum equal at all times to the sum of the Prime Rate (as defined
in the Credit Agreement referred to below) in effect from time to time plus the
Applicable Interest Margin (as defined in the Credit Agreement).
(b) Payment of Interest. Interest accrued on this Note shall be
payable on the first business day of each calendar month, commencing on April 1,
2002.
(c) Default Interest. Upon the occurrence and during the
continuation of any Event of Default (as defined in the Credit Agreement
referred to below), the outstanding principal balance of this Note shall bear
interest until paid in full at an increased rate per annum (computed on the
basis of a 360-day year and actual days elapsed) equal to four percent (4%)
above the rate of interest from time to time otherwise applicable to this Note.
BORROWING AND REPAYMENT:
(a) Borrowing and Repayment. Borrower may from time to time during
the term of this Note borrow, partially or wholly repay its outstanding
borrowings, and reborrow, subject to all of the limitations, terms and
conditions of this Note and of the Amended and Restated Credit Agreement dated
as of March 29, 2002, as amended by a First Amendment to Amended and Restated
Credit Agreement dated as of July 31, 2002 (as it may be further amended,
restated or otherwise modified from time to time, the "Credit Agreement"),
between Borrower and Bank and any other document executed in connection with or
governing this Note; provided, however, that the total outstanding borrowings
under this Note shall not at any time exceed the principal amount stated above
(subject to reduction as provided in the Credit Agreement). The unpaid principal
balance of this Note at any time shall be the total
Staar Surgical Company
July 31, 2002
Page 2
amount advanced hereunder by the holder hereof less the amount of principal
payments made hereon by or for Borrower, which balance may be endorsed hereon
from time to time by the holder. The outstanding principal balance of this Note
shall be due and payable in full on March 31, 2003.
(b) Advances. Advances hereunder, to the total amount of the
principal amount stated above (subject to reduction as provided in the Credit
Agreement), may be made by the holder at the oral or written request of (i)
those persons who are authorized from time to time by Borrower (as evidenced by
such documents as Bank may require) to request advances and direct the
disposition of any advances, until written notice of the revocation of such
authority is received by the holder at the office designated above, or (ii) any
person, with respect to advances deposited to the credit of any deposit account
of Borrower, which advances, when so deposited, shall be conclusively presumed
to have been made to or for the benefit of Borrower regardless of the fact that
persons other than those authorized to request advances may have authority to
draw against such account. The holder shall have no obligation to determine
whether any person requesting an advance is or has been authorized by Borrower.
(c) Application of Payments. Each payment made on this Note shall be
credited, first, to any interest then due and, second, to the outstanding
principal balance hereof.
CREDIT AGREEMENT:
This Note is made pursuant to, and is subject to the terms and
conditions of, the Credit Agreement.
MISCELLANEOUS:
(a) Remedies. Upon the occurrence of any Event of Default, the
holder of this Note, at the holder's option, may declare all amounts of
principal and interest outstanding hereunder to be immediately due and payable,
without presentment, demand, notice of nonperformance, notice of protest,
protest or notice of dishonor, all of which are expressly waived by Borrower,
and the obligation, if any, of the holder to extend any further credit hereunder
shall immediately cease and terminate. Borrower shall pay to the holder,
immediately upon demand, the full amount of all payments, advances, charges,
costs and expenses, including, without limitation, reasonable attorneys' fees
(to include, without limitation, outside counsel fees and all allocated costs of
the holder's in-house counsel), expended or incurred by the holder in connection
with the enforcement of the holder's rights and/or the collection of any amounts
which become due to the holder under this Note, and the prosecution or defense
of any action in any way related to this Note, including, without limitation,
any action for declaratory relief, whether incurred at the trial or appellate
level, in an arbitration proceeding or otherwise, and including, without
limitation, any of the foregoing
2
Staar Surgical Company
July 31, 2002
Page 3
incurred in connection with any bankruptcy proceeding (including, without
limitation, any adversary proceeding, contested matter or motion brought by Bank
or any other person) relating to Borrower or any other person or entity.
(b) Obligations Joint and Several. Should more than one person or
entity sign this Note as a Borrower, the obligations of each such Borrower shall
be joint and several.
(c) Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of California.
(d) Amendment and Restatement. This Note amends and restates the
Revolving Line of Credit Note dated March 29, 2002 made by Borrower in favor of
Bank.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
date first written above.
STAAR SURGICAL COMPANY
By: /s/ John Bily
---------------------------
Name: John Bily
-------------------------
Title: Chief Financial Officer
-------------------------
3
EXHIBIT A
TO FIRST AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
RELEASE OF RESTRICTED FUNDS
EXHIBIT C
TO AMENDED AND RESTATED CREDIT AGREEMENT
COMPLIANCE CERTIFICATE
SCHEDULE 2
TO AMENDED AND RESTATED CREDIT AGREEMENT
MONTHLY AND QUARTERLY PROJECTIONS
SCHEDULE 3
TO AMENDED AND RESTATED CREDIT AGREEMENT
MANDATORY REDUCTION OF LINE OF CREDIT