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



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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.




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     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



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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.



[Remainder of this page intentionally left blank]




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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 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 








	 	 	 	 	 
	Agreed to and Accepted By:



Loan Funding IV LLC

 	 	 
	By:  	/s/ Michael Pusateri
 	 	 
	 	Name:  	Michael Pusateri 	 	 
	 	Title:  	Chief Operating Officer 	 	 
	 



[Signature Page to Amendment to Limited Waiver]





 









 








	 	 	 	 	 
	Agreed to and Accepted By:



Emerald Orchard Limited

 	 	 
	By:  	/s/ Irfan Ahmed
 	 	 
	 	Name:  	IRFAN AHMED 	 	 
	 	Title:  	Authorized Signatory 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 








	 	 	 	 	 
	Agreed to and Accepted By:



Greenbriar CLO, Ltd.

 	 	 
	By:  	/s/ Michael Pusateri
 	 	 
	 	Name:  	Michael Pusateri 	 	 
	 	Title:  	Chief Operating Officer 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 








	 	 	 	 	 
	Agreed to and Accepted By:



HCSMF Scotia Swap

 	 	 
	By:  	/s/ Scott Kerr
 	 	 
	 	Name:  	SCOTT KERR 	 	 
	 	Title:  	AUTHORIZED SIGNATORY 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 








	 	 	 	 	 
	Agreed to and Accepted By:



Loan Star State Trust

 	 	 
	By:  	/s/ Michael Pusateri
 	 	 
	 	Name:  	Michael Pusateri 	 	 
	 	Title:  	Chief Operating Officer 	 	 
	 



[Signature Page to Amendment to Limited Waiver]





 











 





	 	 	 	 	 
	Agreed to and Accepted By:


Longhorn Credit Funding, LLC

 	 	 
	By:  	/s/ Michael Pusateri
 	 	 
	 	Name:  	Michael Pusateri 	 	 
	 	Title:  	Chief Operating Officer 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 








	 	 	 	 	 
	Agreed to and Accepted By:


Red River CLO Ltd.

 	 	 
	By:  	/s/ Michael Pusateri
 	 	 
	 	Name:  	Michael Pusateri 	 	 
	 	Title:  	Chief Operating Officer 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 







	 	 	 	 	 
	Agreed to and Accepted By:


Rockwall CDO II Ltd.

 	 	 
	By:  	/s/ Michael Pusateri
 	 	 
	 	Name:  	Michael Pusateri 	 	 
	 	Title:  	Chief Operating Officer 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 






	 	 	 	 	 
	Agreed to and Accepted By:


Southfork CLO, Ltd.
 	 	 
	By:  	/s/ Michael Pusateri
 	 	 
	 	Name:  	Michael Pusateri 	 	 
	 	Title:  	Chief Operating Officer 	 	 
	 


 [Signature Page to Amendment to Limited Waiver]




 









 






	 	 	 	 	 
	Agreed to and Accepted By:


Loan Funding VII LLC
 	 	 
	By:  	/s/ Michael Pusateri
 	 	 
	 	Name:  	Michael Pusateri 	 	 
	 	Title:  	Chief Operating Officer 	 	 
	 


 [Signature Page to Amendment to Limited Waiver]




 









 







	 	 	 	 	 
	Agreed to and Accepted By:



GALE FORCE 3 CLO. LTD.



By: GSO/Blackstone Debt Funds Management LLC

       as Collateral Manager

 	 	 
	By:  	/s/ Daniel H. Smith
 	 	 
	 	Name:  	Daniel H. Smith 	 	 
	 	Title:  	Authorized Signatory 	 	 
	 



 [Signature Page to Amendment to Limited Waiver]




 











 





Agreed to and Accepted By:




	 	 	 	 	 
	GALE FORCE 1 CLO. LTD.



By: GSO/Blackstone Debt Funds Management LLC

       as Collateral Manager
 	 	 
	 	 	 
	By:  	/s/ Daniel H. Smith 	 	 
	 	Name:  	Daniel H. Smith  	 	 
	 	Title:  	Authorized Signatory 	 	 
	 



[Signature Page to Amendment 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:  	/s/     Daniel H. Smith 	 	 
	 	Name:  	Daniel H. Smith 	 	 
	 	Title:  	Authorized Signatory 	 	 
	 



[Signature Page to Amendment to Limited Waiver]






 









 








Agreed to and Accepted By:




	 	 	 	 	 
	MONUMENT PARK CDO LTD.



By: Blackstone Debt Advisors L.P. 

       as Collateral Manager
 	 	 
	 	 	 
	By:  	/s/ Daniel H. Smith
 	 	 
	 	Name:  	Daniel H. Smith  	 	 
	 	Title:  	Authorized Signatory 	 	 
	 



[Signature Page to Amendment to Limited Waiver]







 









 








Agreed to and Accepted By:




	 	 	 	 	 
	CIFC Funding 2007-48, LTD.

 	 	 
	By:  	/s/ Michio Brunner
 	 	 
	 	Name:  	Michio Brunner 	 	 
	 	Title:  	Authorized Signatory 	 	 
	 



[Signature Page to Amendment to Limited Waiver]





 











 





Agreed to and Accepted By:




CIFC Funding 2007 — IV, Ltd.




	 	 	 	 	 
	By:  	/s/ Steve Vaccaro
 	 	 
	 	Name:  	Steve Vaccaro 	 	 
	 	Title:  	Co-Chief Investment Officer 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 








Agreed to and Accepted By:




Sargas CLO I LTD.



By: Sargas Asset Management, LLC,

       its Portfolio Manager




	 	 	 	 	 
	By:  	/s/ Mark S. Maglaya
 	 	 
	 	Name:  	Mark S. Maglaya 	 	 
	 	Title:  	Assistant Secretary 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 








Agreed to and Accepted By:




Pangaea CLO 2007-1 LTD.



By: Pangaea Asset Management, LLC, its

       Collateral Manager




	 	 	 	 	 
	By:  	/s/ Mark S. Maglaya
 	 	 
	 	Name:  	Mark S. Maglaya 	 	 
	 	Title:  	Assistant Secretary 	 	 
	 



[Signature Page to Amendment to Limited Waiver]




 









 










Agreed to and Accepted By:




ACA CLO 2007-1, LTD



By: Its investment advisor

       Apidos Capital Management, LLC




	 	 	 	 	 
	By:  	/s/ Vincent Ingato
 	 	 
	 	Name:  	Vincent Ingato 	 	 
	 	Title:  	Portfolio Manager 	 	 
	 



[Signature Page to Amendment to Limited Waiver]