EX-10.1






Exhibit 10.1




PRIVILEGED AND CONFIDENTIAL

FOR SETTLEMENT PURPOSES ONLY

SUBJECT TO FEDERAL RULES OF EVIDENCE §408

AND OTHER APPLICABLE CONFIDENTIALITY RULES




EXECUTION COPY




Dated as of June 30, 2009




TLC Vision (USA) Corporation

16305 Swingley Ridge Road, Suite 300

Chesterfield, MO 63017

Attention: Michael Gries





	Re: 	 	 Limited Waiver and Amendment No. 4 to Credit Agreement





Ladies and Gentlemen:




     We refer to the Amended and Restated Credit Agreement, dated as of June 21, 2007, as amended
by Amendment No. 1 dated as of February 28, 2008, Limited Waiver and Amendment No. 2 dated as of
March 31, 2009, Amendment to Limited Waiver and Amendment No. 2 to Credit Agreement, dated as of
April 30, 2009, Consent and Amendment No. 2 to Limited Waiver and Amendment No. 2 to Credit
Agreement, dated as of June 1, 2009, and Limited Waiver, Consent, and Amendment No. 3 to Credit
Agreement, dated as of June 5, 2009 (collectively, the
“Credit Agreement”), 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, CIT Capital Securities, LLC, as Sole Lead Arranger and Sole Bookrunner,
and CIT Healthcare LLC (“CIT”) Collateral Agent and Administrative Agent. The Credit
Agreement, as amended by this Limited Waiver and Amendment No. 4 to Credit Agreement (this
“Amendment No. 4”) is referred to herein as the “Amended Credit Agreement”. Capitalized
terms used but not defined in this Amendment No. 4 have the same meanings herein as in the Amended
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), (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), and (c) the Required Lenders amend certain
terms of the Credit Agreement. 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) 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 Amendment No. 4:




     (i)
“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;




     (ii)
“Specified Amounts” has the meaning set forth
in Section 2 hereof;




     (iii)
“Specified Defaults” has the meaning set forth in
Section 5 hereof; and




     (iv)
“Waiver Period” means the period commencing on the Amendment No. 4
Effective Date and ending on the earlier to occur of (A) September 9, 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 7(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.



     SECTION 3. Forbearance




     (a)
In the event that Section 2 hereof does not become effective
because the conditions precedent specified in Section 7(b) hereof are not
satisfied, then the undersigned Required Lenders agree that from and after the Amendment
No. 4 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.



2









 






     (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 Amendment No. 4 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 Amendment No. 4, 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
Amendment No. 4 Effective Date.



     SECTION 4. Amendments to Credit Agreement. 
The Credit Agreement is hereby amended as set forth below.




     (a) Definitions. Section 1.01 of the Credit Agreement is amended
by inserting the following new defined terms in the appropriate alphabetical sequence in such
Section:




“Amendment No. 4 Effective Date” shall mean June 30, 2009.




“Amendment No. 4 to Credit Agreement” shall mean Limited Waiver and
Amendment No. 4 to Credit Agreement, dated as of June 30, 2009, among the
Loan Parties and the Lenders party thereto.




     (b) Negative Covenants. Section 5.02(e) of the Credit Agreement is
amended as follows:




     (i) by replacing clause (iii) thereof with the following:




“(iii) equipment sales reflected on Schedule 5.02(e)(iii) hereof and
consummated by no later than September 9, 2009;”




     (ii) by replacing the proviso at the end thereof with
the following:




“provided, that:




(1) in the case of sales of assets pursuant to clause (iv) above, Parent shall, on the date of
receipt by Parent or any of its Subsidiaries of the Net Cash Proceeds from such sale, prepay the
Advances pursuant to, and in the amount and order of priority set forth in, Section 2.06(b);
and



3









 






(2) notwithstanding the provisions of Section 2.06(b)(ii) hereof, in
the case of sales of assets pursuant to clause (iii) above, Parent
shall, on the date of receipt by Parent or any of its Subsidiaries
of the Net Cash Proceeds from such sale use such Net Cash Proceeds,
solely to make (A) payments due and payable to optometrists under
co-management arrangements and fees owing to ophthalmologists, (B)
payments due and payable to AMO USA, Inc., AMO Sales & Services,
Inc., or any of their affiliates, in respect of trade payables, and
(C) payroll and benefit payments due and payable in the ordinary
course of business (but excluding payments in respect of severance
obligations).”




     (c) Schedules. The Schedules to the Credit Agreement are
amended by inserting a new Schedule 5.02(e)(iii), in the form of Annex A hereto,
after Schedule 5.02(b).



     SECTION 5. 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 Amendment No. 4, 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 5(a) as of the date hereof.




     (b) Continued Validity of Loan Documents. Except for the consent, waivers and
forbearance set forth in Sections 1, 2, and 3 respectively, hereof, this Amendment
No. 4 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




4











 






indemnification obligations of the Loan Parties set forth in Section 9.04 of the Credit
Agreement.




     (d) Canadian Counsel. The Borrower has an existing obligation to, and will,
pay all reasonable fees and expenses of Canadian counsel engaged by Bingham McCutchen LLP,
subject to the terms and conditions of the Fee Agreement, dated as of February 10, 2009
between Bingham McCutchen LLP and the Borrower.




     (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 Amendment No. 4, 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 Amended Credit Agreement and (ii) be payable in accordance with the
Amended Credit Agreement; provided that no such interest shall be payable until the day
immediately following the last day of the Waiver Period.



     SECTION 6. 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 No. 4 has been duly executed and delivered by each Loan Party. The execution
and delivery by each Loan Party of this Amendment No. 4 is within such Loan Party’s powers
and has been duly authorized by all necessary action on its part. This Amendment No. 4 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.




     (b) No Violation; No Defaults; Consents and Approvals. The
execution, delivery and performance by each Loan Party of this Amendment No. 4 and the
Amended Credit Agreement 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.






5









 









     (c) Representations. After giving effect to this Amendment No. 4,
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 Amendment No. 4 Effective Date (a) the outstanding principal
amount of all Term Advances equals $76,667,310.46, (b) the outstanding principal
amount of all Revolving Credit Advances equals $23,400,000.00 and (c) the
outstanding LC Exposure equals US $225,000 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.



     SECTION 7. Conditions to Effectiveness. (a) This Amendment No. 4 shall become
effective if, and only if, on or before August [    ], 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 Amendment No. 4 which, when taken together, bear the authorized
signatures of each of the Borrower, the Parent and the Required Lenders, required
for this Amendment No. 4 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) Bingham
McCutchen LLP, counsel to certain of the Lenders, pursuant to the fee agreement
dated as of February 10, 2009, (B) Gordian Group LLC, the financial advisor engaged
by Bingham McCutchen LLP for the benefit of the lenders represented by it, pursuant
to the engagement letter, dated as of February 20,



6









 






2009, (C) Wells Fargo Bank, National Association, as Administrative Agent and
Collateral Agent, and (D) Ropes and Gray 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 Amendment No. 4 Effective Date, of the records of all corporate
action taken by such Person to authorize (A) such Person’s execution and delivery
of this Amendment No. 4, and (B) such Person’s performance of all of its agreements
and obligations under this Amendment No. 4 and the Amended 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
Amendment No. 4 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 Amendment No. 4, and (B) to give notices and to take other action
on behalf of such Person under this Amendment No. 4 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 Amendment No. 4
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 6 hereof are true and correct as of the Amendment No. 4 Effective
Date, and (B) all conditions to the effectiveness of this Amendment No. 4 set forth
in this Section 7, other than those which are subject to the discretion of
the Agents or any Lender, have been satisfied in all respects.




     (vi)
Successor Agent Agreement. Counsel to the Required Lenders shall
have received written confirmation from CIT (A) of the satisfaction or waiver of
all of the conditions to effectiveness of the successor agent agreement dated as of
June 29, 2009 (the “Successor Agent Agreement”) among Wells Fargo Bank,
National Association, CIT, Parent, the Additional Guarantors, and the Required
Lenders, and (B) that the Successor Agent Agreement is effective; provided,
however, that this Section 7(a)(vi) shall not be a condition precedent to
the effectiveness of the amendment of Section 5.02(e) of the Credit Agreement set
forth in Section 4(b) of this Amendment No. 4 and the amendment to Section 5.02(e)
set forth therein shall be effectively immediately upon execution of this Amendment
No. 4 by each of the Borrower, the Parent and the Required Lenders.




     (b) In the event that less than 100% of the Lenders execute and deliver
this Amendment No. 4, then Section 2 of this Amendment No. 4 shall not be effective




7











 









and shall not be binding on any of the Loan Parties, the Agents, the Issuing Bank and the
Lenders.



     SECTION 8. Post-Closing Covenants.




     (a) 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.




     (b) 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.




     (c) Meetings and Additional Information. The Loan Parties shall respond
promptly to any reasonable requests for additional information from any member of the
Steering Committee and its advisors.




     (d) 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 $900,000 to
permit Parent to pay (1) 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 (2) franchise fees or similar taxes and
fees required to maintain its corporate existence.



     SECTION 9. 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 No. 4, 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 10. GOVERNING LAW. THIS AMENDMENT NO. 4 SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     SECTION 11. Miscellaneous. The failure of any Loan Party to timely perform
any of its obligations under Section 8 hereof shall constitute an immediate and automatic
Event of Default. In addition, (a) any payment to any of Mr. Brian L. Andrew, Mr Larry Hohl, or Mr
Steven P. Rasche by any Loan Party or any of its Subsidiaries in respect of severance obligations




8









 








and/or (b) any payment of any success, transaction, opinion, or similar fee to any financial
adviser by any Loan Party or any of its Subsidiaries in connection with any sale of assets without
the consent of the Required Lenders, shall constitute an immediate and automatic Event of
 Default. This Amendment No. 4 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 Amendment No. 4 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 Amendment No. 4 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 Amendment No. 4, the terms and provisions of
this Amendment No. 4 shall govern. The headings used in this Amendment No. 4 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 No. 4 or any provision hereof. This Amendment No. 4 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 No. 4 may not be
modified or amended except by a written instrument executed by the party to be charged. Execution
and delivery of this Amendment No. 4 by facsimile transmission shall constitute execution and
delivery of this Amendment No. 4 for all purposes, with the same force and effect as execution and
delivery of an original manually signed copy hereof. This Amendment No. 4 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
Amendment No. 4 shall be effective as delivery of an original executed counterpart of this
Amendment No. 4.




[Remainder of this page intentionally left blank]





9









 









     IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4
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/ James B. Tiffany
 	 
	 	 	Name:  	James B. Tiffany	 
	 	 	Title:  	President and Chief Operating Officer	 
	 
	 	TLC VISION CORPORATION, as
Parent and 
Guarantor

 	 
	 	By:  	/s/ James B. Tiffany
 	 
	 	 	Name:  	James B. Tiffany	 
	 	 	Title:  	President and Chief Operating Officer	 
	 



[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 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/ James B. Tiffany
 	 
	 	 	Name:  	James B. Tiffany	 
	 	 	Title:  	President and Chief Operating Officer	 
	 



[Signature Page to Limited Waiver]



 









 








	 	 	 	 	 
	 	TLC THE LASER CENTER (MONCTON) INC.

RHEO CLINIC INC.

VISION CORPORATION

 	 
	 	By:  	/s/ James B. Tiffany
 	 
	 	 	Name:  	James B. Tiffany	 
	 	 	Title:  	President and Chief Operating Officer	 
	 



[Signature Page to Limited Waiver]




 









 





Annex A




CONSENT




Dated as of June 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 Amendment No. 4 to Credit Agreement (“Amendment No. 4”), hereby
consent to such Amendment No. 4 and hereby confirm and agree that notwithstanding the
effectiveness of such Amendment No. 4, 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, except that, on and
after the effectiveness of such Amendment No. 4, each reference in the Guaranty, the
Security Agreements and the Intellectual Property Security Agreement to the “Credit
Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference
to the Credit Agreement, as amended by such Amendment No. 4.




	 	 	 	 	 
	 	GUARANTORS



TLC VISION CORPORATION

 	 
	 	By:  	/s/ James B. Tiffany
 	 
	 	 	Name:  	James B. Tiffany	 
	 	 	Title:  	President and Chief Operating Officer	 
	 



[Signature Page to Limited Waiver]





 











 





Agreed to and Accepted By:




	 	 	 	 	 
	Brentwood CLO Ltd.

By: Highland Capital Management, L.P.

As Collateral Manager

By: Strand Advisors, Inc., its General Partner

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



[Signature Page to Limited Waiver]





 









 








Agreed to and Accepted By:




	 	 	 	 	 
	Loan Funding IV LLC

By: Highland Capital Management, L.P., 

As Collateral Manager 

By: Strand Advisors, Inc., Its General Partner

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



[Signature Page to Limited Waiver]




 









 








Agreed to and Accepted By:




	 	 	 	 	 
	Emerald Orchard Limited

 	 	 
	By:  	/s/ Arlene Arellano
 	 	 
	 	Name:  	ARLENE ARELLANO 	 	 
	 	Title:  	AUTHORIZED SIGNATORY 	 	 
	 




[Signature Page to Limited Waiver]




 









 








Agreed to and Accepted By:




	 	 	 	 	 
	Greenbriar CLO, Ltd.

By: Highland Capital Management, L.P., as Collateral Manager

By: Strand Advisors, Inc.
Its General Partner

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



[Signature Page to Limited Waiver]





 









 








Agreed to and Accepted By:




	 	 	 	 	 
	HCSMF SCOTIA SWAP

 	 	 
	By:  	/s/ Arlene Arellano
 	 	 
	 	Name:  	ARLENE ARELLANO 	 	 
	 	Title:  	AUTHORIZED SIGNATORY 	 	 
	 




[Signature Page to Limited Waiver]




 









 








Agreed to and Accepted By:




	 	 	 	 	 
	Loan Star State Trust

By: Highland Capital Management, L.P.,
As Collateral Manager

By: Strand Advisors, Inc., Its Investment Advisor

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




[Signature Page to Limited Waiver]




 









 









Agreed to and Accepted By:




	 	 	 	 	 
	Longhom Credit Funding, LLC

By: Highland Capital Management, L.P.,
As Collateral Manager

By: Strand Advisors, Inc.

Its General Partner

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



[Signature Page to Limited Waiver]





 









 









Agreed to and Accepted By:




	 	 	 	 	 
	Red River CLO Ltd.

By: Highland Capital Management, L.P.

As Collateral Manager

By: Strand Advisors, Inc., Its General Partner

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




[Signature Page to Limited Waiver]




 









 








Agreed to and Accepted By:



	 	 	 	 	 
	Rockwall CDO II Ltd.

By: Highland Capital Management, L.P. 

As Collateral Manager

By: Strand Advisors, Inc.

Its General Partner

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




[Signature Page to Limited Waiver]




 









 








Agreed to and Accepted By:



	 	 	 	 	 
	Southfork CLO, Ltd.

By: Highland Capital Management, L.P.,
as Collateral Manager

By: Strand Advisors, Inc., Its General Partner

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



[Signature Page to Limited Waiver]





 











 





Agreed to
and Accepted By:



	 	 	 	 	 
	Loan Funding VII LLC

By: Highland Capital Management, L.P.,
as Collateral Manager

By: Strand Advisors, Inc., Its General Partner

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



[Signature Page 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 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 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 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 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 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

 	 	 
	By:  	/s/ John F. Thacker
 	 	 
	 	Name:  	JOHN F. THACKER 	 	 
	 	Title:  	CHIEF CREDIT OFFICER 	 	 
	 



[Signature Page to Limited Waiver]





 









 





Agreed to
and Accepted By:



	 	 	 	 	 
	Sargas CLO 1 LTD.

By: Sargas Asset Management, LLC, 

its Portfolio Manager

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



[Signature Page 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 Limited Waiver]





 









 









Agreed to
and Accepted By:



	 	 	 	 	 
	National City Bank now a part of PNC

 	 	 
	By:  	/s/ Christopher B. Gribble
 	 	 
	 	Name:  	Christopher B. Gribble 	 	 
	 	Title:  	Vice President 	 	 
	 



[Signature Page to Limited Waiver]





 









 





Agreed to
and Accepted By:



	 	 	 	 	 
	ACA CLO 2007-1, LTD

By: Its investment advisor

Apidos Capital Management, LLC

 	 	 
	By:  	/s/ Vincent Fugah
 	 	 
	 	Name:  	Vincent Fugah 	 	 
	 	Title:  	Managing Directors 	 	 
	 



[Signature Page to Limited Waiver]





 











 





Schedule 1




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 Interest on the Term Advances and
Revolving Credit Advances
	 	$	227,304.97	 	 	June 30, 2009
	4 Amortization of the Term Advances
	 	$	212,500.00	 	 	June 30, 2009
	5 Interest on the Term Advances
	 	$	275,383.36	 	 	July 1, 2009





Note: Because
Events of Default
were continuing on
June 30, 2009, due
to failure to make
payments described
in item 4 above and
due to expiration
of the waivers of
Events of Default
granted in
Amendment No. 3 to
Credit Agreement,
Eurodollar Rate
Advances with
Interest Periods
ending on or after
June 30, 2009
automatically
converted to Base
Rate Advances at
the end of such
Interest Periods.
As provided in
Section 2.07(a) of
the Credit
Agreement, interest
is due on Base Rate
Advances quarterly
in arrears on the
last day of each
March, June,
September and
December, and on
the date any Base
Rate Advance is
converted or paid
in full.




 









 








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 and March 31, 2009, and June 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 Moody’s 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.





 









 








Annex A




Schedule 5.02(e)(iii)




	 	 	 	 	 
	Asset	 	Purchase Price	 	Seller
	 
	 
	Items sold pursuant to Section 5.02(e)(iii)
	 	 	 	 
	Hansatome
	 	$2,500	 	Laser Vision Centers, Inc.
	Wavescan
	 	$25,000	 	TLCVision (TLC EauClair)
	VISX S4IR laser
	 	$85,000	 	Laser Vision Centers, Inc.
	Wavescan
	 	N/A	 	Laser Vision Centers, Inc.
	Subtotal
	 	$112,500	 	 
	 
	Items to be sold pursuant to Section 5.02(e)(iii)
	 	 	 	 
	Zeiss Humphrey Automatic Refractor/Keratometer Model 599
	 	$5,000	 	TLC Laser Eye Centers (Refractive l)Inc.
	Hansatome
	 	$3,000	 	Laser Vision Centers, Inc.
	VISX S4IR
	 	$80,000	 	Laser Vision Centers Inc.
	VISX S4IR
	 	$80,000	 	Laser Vision Centers Inc.
	Wavescan
	 	$25,000	 	Laser Vision Centers Inc.
	Wavescan
	 	$25,000	 	Laser Vision Centers Inc.
	Subtotal
	 	$218,000