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SUPPLEMENTAL AGREEMENT
TO
CREDIT AND SECURITY AGREEMENT
DATED DECEMBER 13, 2001 AS AMENDED
AND TO
UNSECURED CREDIT AGREEMENT DATED ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇ AND BETWEEN
BRITESMILE International Limited
AND
CAP ADVISERS LIMITED
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SUPPLEMENTAL AGREEMENT TO
CREDIT AND SECURITY AGREEMENT AS AMENDED
AND TO UNSECURED CREDIT AGREEMENT
Dated July 19, 2002
BRITESMILE INTERNATIONAL LIMITED an Irish company with company registration
no. 306119 and registered office at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ (the
"Borrower"), and CAP ADVISERS LIMITED an English company with company
registration no. 2147486 acting through its Dublin branch at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ (the "Lender"), hereby agree that this Agreement is
supplemental to a Credit and Security Agreement dated December 13, 2001 between
Borrower and Lender as supplemented and amended by a Supplemental Agreement
between them dated March 8, 2002 (together the "Principal Agreement") and to an
Unsecured Credit Agreement dated March 8, 2002 between Borrower and Lender (the
"Unsecured Credit Agreement") and that they wish to amend the Principal
Agreement and to terminate the Unsecured Credit Agreement in the manner and to
the extent hereinafter provided
IT IS AGREED, in consideration of the premises and of the mutual agreements
contained in this Agreement and other good consideration, as follows:-
1. Defined terms used in this Agreement shall have the same meanings as
defined terms in the Principal Agreement, except that "this Agreement" as used
herein shall refer to this Supplemental Agreement and not to the Principal
Agreement, and except as specifically provided in clause 3 below.
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2. With effect on and from the date hereof, the Principal Agreement shall
be amended as follows:-
(a) by deleting the definition of "Borrowing Base" in section 1.1
thereof and substituting therefor the following new definition:-
"Borrowing Base" means the Maximum Line.
(b) by deleting the definition of "Maturity Date" in section 1.1
thereof and substituting therefor the following new definition:-
"Maturity Date" means [25 July] 2005.
(c) by deleting the definition of "Maximum Line" in section 1.1
thereof and substituting therefor the following new definition:-
"Maximum Line" means Five Million United States Dollars
(US$5,000,000).
(d) by deleting the definition of "Obligations" in section 1.1 thereof
and substituting therefor the following new definition:-
"Obligations" means each and every debt, liability and obligation
of every type and description which the Borrower may now or at any
time hereafter owe to the Lender, whether such debt, liability or
obligation now exists or is hereafter created or incurred, whether it
arises in a transaction involving the Lender alone or in a transaction
involving other creditors of the Borrower, and whether it is direct or
indirect, due or to become due, absolute or contingent, primary or
secondary, liquidated or unliquidated, or sole, joint, several or
joint and several, and including all indebtedness of the Borrower
arising under any Credit Document or guaranty between the Borrower and
the Lender, whether now in effect or hereafter entered into.
(e) by deleting section 2.2(b) and substituting therefor the following
new section 2.2(b):-
Disbursement. Upon fulfillment of the applicable conditions set
forth in Article IV, the Lender shall disburse the proceeds of the
requested Advance by crediting the same to the Borrower's account in
the name of BRITESMILE INTERNATIONAL No. 0081803161 at the bank of
Hawaii, ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ Routing No. ▇▇▇▇▇▇▇▇▇,
unless the Lender and the Borrower shall agree in writing to another
manner of disbursement.
(f) by deleting section 2.9 and substituting therefor the following
new section 2.9:-
Section 2.9 Use of Proceeds. The Borrower shall use the proceeds
of Advances for its general business purposes.
(g) by deleting Exhibit A thereto and substituting therefor the new
Exhibit A in the Schedule hereto.
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3. With effect on and from the date hereof, the Unsecured Credit Agreement
shall be terminated by mutual agreement and all Advances (as defined therein)
outstanding thereunder, together with accrued interest, shall be deemed to be
Advances borrowed and interest accrued under the Principal Agreement as amended
hereby.
4. The Borrower represents and warrants to the Lender that the execution,
delivery and performance by the Borrower of this Agreement and the borrowings
from time to time under the Loan Documents, including this Agreement, have been
duly authorised by all necessary corporate action, including the board of
directors of the Borrower and the board of directors, or executive committee of
the board of directors, of BriteSmile Inc, the parent company of the Borrower
and do not and will not (i) require any further consent or approval of the
shareholders in the Borrower; (ii) require any authorisation, consent or
approval by, or registration, declaration or filing with, or notice to, any
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any third party, except such authorisation, consent,
approval, registration, declaration, filing or notice as has been obtained,
accomplished or given prior to the date hereof or in the case of any necessary
registration at the Irish Companies Registry and the Irish Revenue
Commissioners, that will be effected within 21 days; (iii) result in a breach of
or constitute a default under any indenture or loan or credit agreement or any
other material agreement, lease or instrument to which the Borrower is a party
or by which it or its properties may be bound or affected; or (v) result in, or
require, the creation or imposition of any Lien (other than the Security
Interest) upon of with respect to any of the properties now owned or hereafter
acquired by the Borrower.
5. This Agreement and the Principal Agreement shall be read and construed
as one agreement. Save as expressly amended by this Agreement the Principal
Agreement shall remain in full force and effect.
6. This Agreement shall be governed by and construed in accordance with
English law. Each of the parties hereto hereby (i) consents to the jurisdiction
of the Irish Courts in connection with any controversy related to this
Agreement; (ii) waives any argument that venue in any such forum is not
convenient and (iii) agrees that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgement or in any other manner provided by law.
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THE SCHEDULE
EXHIBIT A TO CREDIT AND SECURITY AGREEMENT
[BRITESMILE INTERNATIONAL LIMITED LETTERHEAD]
To: CAP Advisers Limited
Dublin Branch
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▇▇▇▇▇▇ ▇
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Telecopier:
Attention:
We refer to that certain Credit and Security Agreement dated December 13, 2001
(as amended or modified to date, the "Credit Agreement") by and between
Britesmile International Limited and CAP Advisers Limited Dublin branch.
Capitalised terms used herein but not otherwise defined shall have the same
meanings assigned to them in the Credit Agreement.
Pursuant to Section 2.2(a) of the Credit Agreement, we hereby request or confirm
our request for an Advance on the date, of the type(s) and in the amount(s)
specified below.
Amount of Advance (US$) Date of Borrowing
BRITESMILE INTERNATIONAL LIMITED
By:......................................
.........................................
Its:.....................................
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized on the date
first above written.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇, By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ireland Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: Its: Director
Attention:
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ADVISERS LIMITED
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ Branch
Ireland By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: Name: ▇▇▇▇▇ ▇▇▇▇▇
Attention: Its: Group Financial Director