SECOND AMENDMENT
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This is the SECOND AMENDMENT (this "Amendment"), dated as of August
18, 1999, among XXXXXX XXXXXX VISIONCARE, INC. ("Holdings"), XXXXXX XXXXXX
CORPORATION (the "Borrower"), the financial institutions party to the Credit
Agreement referred to below (the "Banks") and BANKERS TRUST COMPANY, as agent
(the "Agent"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings provided such terms in the Credit Agreement
referred to below.
WITNESSETH:
WHEREAS, Holdings, the Borrower, the Banks and the Agent are parties
to a Credit Agreement, dated as of February 19, 1997 and amended and reinstated
as if September 10, 1997 and further amended by a First Amendment and Consent
dated as of June 9, 1998 (as modified, supplemented and amended to, but not
including the date hereto, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Agent and the Banks agree
to the amendments provided herein, and the Agent and the Banks (subject to the
terms and conditions hereof) are willing to agree to such amendments;
NOW, THEREFORE, it is agreed:
1. Paragraph 8.05(g) of the Credit Agreement is amended by
substituting "$32,000,000" for "$22,000,000", so that the paragraph now reads as
follows:
"(g) The Borrower may make intercompany loans and advances to any of
its Subsidiaries and any Subsidiary of the Borrower may make intercompany
loans and advances to the Borrower or any other Subsidiary of the Borrower
(collectively, "Intercompany Loans"), provided, that (w) at no time shall
the aggregate outstanding principal amount of Intercompany Loans made
pursuant to this clause (g) by the Borrower and its Domestic Subsidiaries
to Foreign Subsidiaries, when added to the amount of contributions,
capitalization and forgiveness therefore made pursuant to clause (1) exceed
$32,000,000 (determined without regard to any write-downs or write-offs or
such loans and advances), (x) each Intercompany Loan made by a Foreign
Subsidiary to the Borrower or a Domestic Subsidiary shall contain the
subordination provisions set forth on Exhibit K, (y) each Intercompany Loan
shall be evidenced by an Intercompany Note and (z) each such Intercompany
Note (other than (1) Intercompany Notes issued by Foreign Subsidiaries to
the Borrower or Domestic Subsidiaries and (2) Intercompany Notes held by
Foreign Subsidiaries) shall be pledged to the Collateral Agent pursuant to
the Pledge Agreement;"
2. Paragraph 8.05(l) of the Credit Agreement is amended by
substituting "$32,000,000" for "$22,000,000", so that the paragraph now
reads as follows:
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"(1) the Borrower and its Domestic Subsidiaries may make cash
capital contributions to Foreign Subsidiaries, and may capitalize or
forgive any Indebtedness owed to them by a Foreign Subsidiary and
outstanding under clause (g) of this Section 8.05, provided, that the
aggregate amount of such contributions, capitalization and forgiveness
made pursuant to this clause (1), when added to the aggregate outstanding
principal amount of Intercompany Loans made to Foreign Subsidiaries under
clause (g) (determined without regard to any write-downs or write-offs
thereof) shall not exceed an amount equal to $32,000,000;"
3. Paragraph 8.05(x) of the Credit Agreement is amended by
substituting respectively, "$15,000,000" for "$7,500,000" in both places,
so that the paragraph now reads as follows:
"(x) in addition to investments permitted by clauses (a) through
(w) above, so long as no Default or Event of Default then exists or
would result therefrom, the Borrower and its Subsidiaries may make
additional loans, advances and investments to or in a Person so long
as the amount of any such loans, advance or investment (at the time of
the making thereof) does not exceed an amount equal to the sum of (A)
$15,000,000 less the aggregate amount of such $15,000,000 previously
used to make loans, advances and investments pursuant to this clause
(x) to the extent same are then still outstanding (determined without
regard to any write-downs or write-offs thereof and net of cash
repayments of principal in the case of loans and cash equity returns
(whether as a dividend or redemption) in the case of equity
investments) plus (B) an amount equal to the Cumulative Income and
Equity Amount at such time; provided, that (1) any loan, advance or
investment made with the Cumulative Income and Equity Amounts shall be
in or to a Person of which the Borrower owns (directly or indirectly)
at least a majority economic and voting interest (including the
interest purchase or to be purchased with the respective investment)
and (2) neither the Borrower nor any of its Subsidiaries may make or
own any investments in Margin Stock."
4. Notwithstanding anything to the contrary contained in Section
8.06 of the Credit Agreement, in addition to any other Dividends permitted
under such Section, (a) at any time and from time to time Holdings may
redeem or purchase shares of Holdings Common Stock, provided that the
aggregate amount expended by Holdings to redeem or purchase such Holdings
Common Stock pursuant to this Amendment, when added to the aggregate amount
expended for such purpose pursuant to Section 2 of the First Amendment and
Consent, dated as of June 9, 1998, in connection with the Credit Agreement,
shall not exceed $50,000,000 and (b) so long as no Default or Event of
Default then exists or would result therefrom, the Borrower may pay cash
Dividends to Holdings so long as the cash proceeds thereof are promptly
used by Holdings for the purpose described in clause (a) above.
5. Paragraph 8.08(a) of the Credit Agreement is amended by
substituting respectively, "December 31, 2000" for "December 31, 1999",
"$95,000,000" for "$37,900,000", "$35,000,000" for "$25,000,00", and
"$35,000,000" for "$10,000,000", so that the paragraph now reads as
follows:
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"8.08 Capital Expenditures. (a) Holdings will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures,
except that: (i) during the period commencing on July 1, 1997 and
ending December 31, 2000, the Borrower and its Subsidiaries may make
Capital Expenditures in an aggregate amount not to exceed $95,000,000
(provided that such Capital Expenditures shall not exceed $35,000,000
in any fiscal year of the Borrower) and (ii) during any fiscal year
thereafter the Borrower and its Subsidiaries may make Capital
Expenditures so long as the aggregate amount of such Capital
Expenditures does not exceed $35,000,000."
6. In order to induce the Agent and the Banks to enter into this
Amendment, the Borrower hereby represents and warrants that (i) no Default
or Event of Default exists on the Amendment Effective Date (as defined
below) both before and after giving effect to this Amendment and (ii) all
of the representations and warranties contained in the Credit Agreement or
the other Credit Documents are true and correct in all material respects on
the date hereof and on the Amendment Effective Date with the same effect as
though such representations and warranties had been made on and as of such
date (it being understood that any representation or warranty made as of a
specific date shall be true and correct in all material respects as of such
specific date).
7. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
8. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with each of the Borrower and the Agent.
9. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF TBE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
10. This Amendment shall become effective on the date, on or after
the date of this Amendment, (the "Amendment Effective Date") when each of
Holdings, the Borrower and the Required Banks shall have signed a copy
hereof (whether the same or different copies) and shall have delivered
(including by way of telecopier) the same to the Agent.
11. From and after the Amendment Effective Date, all references in
the Credit Agreement and in each of the Credit Documents to the Credit
Agreement shall be deemed to be references to such Credit Agreement as
amended hereby.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the
date first above written.
XXXXXX XXXXXX VISIONCARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: V.P. and Chief Financial Officer
XXXXXX XXXXXX CORPORATION
By:/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: V.P. and Chief Financial Officer
BANKERS TRUST COMPANY,
individually and as Agent
By:/s/ Xxxx Xxx Xxxxx
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Name: Xxxx Xxx Xxxxx
Title: Managing Director
THE FIRST NATIONAL BANK OF
CHICAGO
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing Director
FLEET NATIONAL BANK
By:/s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
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XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxx X. Xxxxxxxxxx
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Name: Xxx X. Xxxxxxxxxx
Title: Managing Director
LASALLE NATIONAL BANK
By: /s/ Xxxx X. Tenbroer
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Name: Xxxx X. Tenbroer
Title: Vice President
NATIONAL BANK OF CANADA
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
SOCIETE GENERALE
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
BANK POLSKA KASA OPIEKI, SA
By:
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Name:
Title:
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XXXXXXXX XXXX XXXX XX XXXXXXXX/XXXXXXXX
By:/s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
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