EXHIBIT 99.1
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FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of January 7, 2005
among
ADVANCED MEDICAL OPTICS, INC.,
as the Borrower,
CERTAIN OF ITS SUBSIDIARIES,
as the Guarantors,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Syndication Agent,
JPMORGAN CHASE BANK, N.A.,
US BANK and
UNION BANK OF CALIFORNIA, N.A.,
as Co-Documentation Agents,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender,
Foreign Currency Fronting Lender and L/C Issuer,
and
The Other Lenders Party Hereto
_______________________________________________
BANC OF AMERICA SECURITIES LLC AND
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Joint Lead Arrangers and Joint Book Runners
_______________________________________________
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FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT to Second Amended and Restated Credit Agreement
(this "Amendment") dated as of January 7, 2005 is by and among Advanced
Medical Optics, Inc., a Delaware corporation (the "Borrower"), the Guarantors,
the Lenders, Xxxxxx Xxxxxxx Senior Funding, Inc., as Syndication Agent, and
Bank of America, N.A., as Administrative Agent on behalf of itself and the
Lenders. All capitalized terms used herein but not otherwise defined herein
shall have the meanings provided to such terms in the Credit Agreement (as
defined below).
W I T N E S S E T H
WHEREAS, a credit facility was established in favor of the Borrower
pursuant to the terms of that certain Second Amended and Restated Credit
Agreement dated as of June 25, 2004 among the Borrower, the Guarantors, the
Lenders and the Administrative Agent (as amended, modified and supplemented
from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested the Lenders to amend the Credit
Agreement as set forth herein; and
WHEREAS, the Lenders have agreed to amend the Credit Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. First Amendment Effective Date Amendments. On the First Amendment
Effective Date (as defined in Section 1(q) below), the Credit Agreement is
amended in the following respects:
(a) The first sentence of the definition of "Applicable Rate"
in Section 1.01 is hereby amended to read as follows:
"Applicable Rate" means, (a) with respect to
Revolving Credit Loans, Swing Line Loans, Foreign Currency
Fronting Loans, commissions on Letters of Credit and the
Commitment Fee, a percentage per annum equal to, from time to
time, the following percentages per annum, based upon the
Consolidated Total Leverage Ratio as set forth below:
Applicable Rate
---------------
Eurocurrency
Rate
Consolidated Total Letter of Base Commitment
Pricing Level Leverage Ratio Credit Rate Fee
-------------- ---------------------------- ------------ ----- ----------
1 Equal to or 2.75% 1.75% 0.50%
greater than 4.50:1
2 Equal to or greater than 2.25% 1.25% 0.50%
4.00:1 and less than 4.50:1
3 Equal to or greater than 2.00% 1.00% 0.50%
3.50:1 and less than 4.00:1
4 Equal to or greater than 1.75% 0.75% 0.375%
2.00:1 and less than 3.50:1
5 Less than 2.00:1 1.50% 0.50% 0.375%
and (b) with respect to the Term Loan, a percentage per annum
equal to (i) for Eurocurrency Rate Loans, 2.00% and (ii) for
Base Rate Loans, 1.00%; provided, however, if the
Administrative Agent receives evidence (including a letter or
other public disclosure from a rating agency) reasonably
satisfactory to the Administrative Agent demonstrating that
the Borrower's senior secured non-credit enhanced debt is
rated BB- or higher with a stable outlook by S&P and Ba3 or
higher with a stable outlook by Xxxxx'x, the Applicable Rate
with respect to the Term Loan (x) for Eurocurrency Rate Loans
shall be reduced to 1.75% and (y) for Base Rate Loans shall
be reduced to 0.75%, such reduction to effective on the date
five (5) Business Days after the date the Administrative
Agent receives such evidence.
(b) The definition of "Availability Period" in Section 1.01
is hereby amended to read as follows:
"Availability Period" means (a) with respect to the
Revolving Credit Commitments, the period from and including
the Closing Date to the earliest of (i) the day immediately
preceding the Maturity Date, (ii) the date of termination of
the commitment of each Revolving Credit Lender to make
Revolving Credit Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section
2.07, and (iii) the date of termination of the commitment of
each Revolving Credit Lender to make Revolving Credit Loans
and of the obligation of the L/C Issuer to make L/C Credit
Extensions pursuant to Section 9.02 and (b) with respect to
the Delayed Draw Term Loan Commitments, the period from and
including the First Amendment Effective Date to the earlier
of (i) June 30, 2005, (ii) the date that the portion of the
Term Loan available under the Delayed Draw Term Loan
Commitments has been funded to the Borrower and (iii) the
date the Delayed Draw Term Loan Commitments are terminated
pursuant to Section 2.07(f) or Section 9.02.
(c) The definition of "Borrowing" in Section 1.01 is hereby
amended to read as follows:
"Borrowing" means a borrowing consisting of
simultaneous Loans of the same Type and, in the case of
Eurocurrency Rate Loans, having the same Interest Period made
by each of the Appropriate Lenders pursuant to Section 2.01.
(d) The definition of "Cash Equivalents" in Section 1.01 is
hereby amended by replacing both references to "$2,000,000" therein
with references to "$10,000,000".
(e) Clause (c) of the definition of "Change of Control" in
Section 1.01 is hereby amended to read as follows:
(c) [Reserved];
(f) Clause (a)(vi) of the definition of "Consolidated
EBITDA" in Section 1.01 is hereby amended to read as follows:
(vi) (A) the cash charges related to the conversion of the
Existing Convertible Senior Subordinated Notes into Equity
Interests and the cash charges related to the conversion of
the 2004 Convertible Senior Subordinated Notes into Equity
Interests, provided that such cash charges do not exceed
$35,000,000 in the aggregate for such period or any future
period and (B) the non-cash charges related to the conversion
of the Existing Convertible Senior Subordinated Notes into
Equity Interests and non-cash charges related to the
conversion of the 2004 Convertible Senior Subordinated Notes
into Equity Interests, provided that such non-cash charges do
not exceed $130,000,000 in the aggregate for such period or
any future period,
(g) Clause (a) of the definition of "Consolidated Interest
Charges" in Section 1.01 is hereby amended to read as follows:
(a) all interest, premium payments, debt discount,
fees, charges and related expenses of the Borrower and its
Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated
as interest expense in accordance with GAAP, whether or not
paid in cash during such period (excluding (A) those certain
cash charges related to the conversion of the Existing
Convertible Senior Subordinated Notes into Equity Interests
and the cash charges related to the conversion of the 2004
Convertible Senior Subordinated Notes into Equity Interests,
provided that such cash charges do not exceed $35,000,000 in
the aggregate for such period or any future period and (B)
those certain non-cash charges related to the conversion of
the Existing Convertible Senior Subordinated Notes into
Equity Interests and non-cash charges related to the
conversion of the 2004 Convertible Senior Subordinated Notes
in to Equity Interests, provided that such non-cash charges
do not exceed $130,000,000 in the aggregate for such period
or any future period), and
(h) Clause (h) of the definition of "Excess Cash Flow" in
Section 1.01 is hereby amended to read as follows:
(h) cash charges made during such period related to
the conversion of the Existing Convertible Senior
Subordinated Notes and the 2004 Convertible Senior
Subordinated Notes,
(i) The definition of "Extraordinary Receipt" in Section
1.01 is hereby amended to read as follows:
"Extraordinary Receipt" means any proceeds of
insurance (including, without limitation, any key man life
insurance but excluding proceeds of business interruption
insurance to the extent such proceeds constitute compensation
for lost earnings) and condemnation awards (and payments in
lieu thereof) received by or paid to or for the account of
any Person not in the ordinary course of business.
(j) The definition of "Fee Letter" in Section 1.01 is hereby
amended to read as follows:
"Fee Letter" means the letter agreement dated
December 3, 2004 among the Borrower, Xxxxxx Xxxxxxx, Bank of
America and BAS, as amended.
(k) The first sentence of the definition of "Pro Forma
Basis" in Section 1.01 is hereby amended to read as follows:
"Pro Forma Basis" means, for purposes of calculating
the financial covenants set forth in Section 8.11(a), (b) and
(d) (including for purposes of determining the Applicable
Rate), that any Disposition or Acquisition shall be deemed to
have occurred as of the first day of the most recent four
fiscal quarter period preceding the date of such transaction
for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b).
(l) The last sentence of the definition of "Pro Rata Share"
in Section 1.01 is hereby amended to read as follows:
The initial Pro Rata Share of each Term Loan Lender
with respect to the Initial Term Loan and the Delayed Draw
Term Loan Commitment is set forth opposite such Term Loan
Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Term Loan Lender becomes a party
hereto, as applicable.
(m) The definition of "Required Lenders" in Section 1.01 is
hereby amended to read as follows:
"Required Lenders" means, as of any date of
determination, (a) Lenders holding in the aggregate more than
50% of the Revolving Credit Commitments and the outstanding
Term Loan (and during the Availability Period, with respect
to the Term Loan, without duplication, the Delayed Draw Term
Loan Commitments) or (b) if the commitment of each Revolving
Credit Lender to make Revolving Credit Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 9.02 or otherwise,
Lenders holding in the aggregate more than 50% of the
Revolving Credit Outstandings (with the aggregate amount of
each Revolving Credit Lender's risk participation and funded
participation in L/C Obligations, Foreign Currency Fronting
Loans and Swing Line Loans being deemed "held" by such Lender
for purposes of this definition) and the outstanding Term
Loan (and during the Availability Period, with respect to the
Term Loan, without duplication, the Delayed Draw Term Loan
Commitments); provided that the Commitment of, and the
portion of the Revolving Credit Outstandings and the portion
of the outstanding Term Loan (and during the Availability
Period, with respect to the Term Loan, without duplication,
the Delayed Draw Term Loan Commitments) held or deemed held
by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders.
(n) The definition of "Syndication Agents" in Section 1.01
is hereby deleted in its entirety and replaced with the following
definition of "Syndication Agent":
"Syndication Agent" means Xxxxxx Xxxxxxx.
(o) The definition of "Term Loan" in Section 1.01 is hereby
amended to read as follows:
"Term Loan" means the collective reference to the
Initial Term Loan and the Delayed Draw Term Loan.
(p) The definition of "Term Loan Commitment" in Section 1.01
is hereby deleted in its entirety.
(q) The following definitions are hereby added to Section
1.01 in the appropriate alphabetical order and shall read as follows:
"AMO Brazil" means AMO Brasil Ltda., a company
organized under the laws of Brazil.
"AMO Canada" means AMO Canada Company, a company
organized under the laws of Canada.
"AMO Holdings" means AMO Holdings, Inc. (f/k/a AMO
Holdings, LLC), a Delaware corporation.
"AMO International Holdings" means AMO
International Holdings, an unlimited liability company
incorporated under the laws of the Republic of Ireland.
"Delayed Draw Term Loan" shall have the meaning
specified in Section 2.01(b).
"Delayed Draw Term Loan Commitment" means, as to
each Term Loan Lender, its obligation to make its portion of
the Delayed Draw Term Loan to the Borrower pursuant to
Section 2.01(b), in the principal amount set forth opposite
such Term Loan Lender's name on Schedule 2.01. The aggregate
principal amount of the Delayed Draw Term Loan Commitments of
all of the Lenders as in effect on the First Amendment
Effective Date is ONE HUNDRED MILLION DOLLARS ($100,000,000).
The Delayed Draw Term Loan Commitments of each Term Loan
Lender shall terminate at the end of the Availability Period
with respect to the Delayed Draw Term Loan Commitments.
"First Amendment" means that certain First Amendment
to Second Amended and Restated Credit Agreement dated as of
January 7, 2005 among the Borrower, the Guarantors, the
Lenders, Xxxxxx Xxxxxxx Senior Funding, Inc., as Syndication
Agent, and the Administrative Agent.
"First Amendment Effective Date" means January 7,
2005.
"Initial Term Loan" shall have the meaning specified
in Section 2.01(b).
"Xxxxxx Xxxxxxx" means Xxxxxx Xxxxxxx Senior Funding,
Inc. and its successors.
"Newco 1" shall have the meaning specified in
Section 8.05(k).
"Newco 2" shall have the meaning specified in
Section 8.05(k).
"VISX" means VISX Incorporated, a Delaware
corporation.
"VISX Acquisition" means the purchase by the
Borrower of VISX and its Subsidiaries pursuant to and in
accordance with the terms of the VISX Purchase Agreement.
"VISX Acquisition Date" means the date of the
consummation of the VISX Acquisition in accordance with the
terms of the Credit Agreement.
"VISX Acquisition Date Certificate" means a
certificate from the Borrower in the form of Exhibit I-1.
"VISX Acquisition Documents" means the VISX Purchase
Agreement and such other agreements, instruments and
documents relating to the VISX Acquisition.
"VISX Purchase Agreement" means that certain
Agreement and Plan of Merger dated as of November 9, 2004
among the Borrower, Vault Merger Corporation and VISX.
(r) Section 1.03(c) is hereby amended to read as follows:
(c) Notwithstanding the above, the parties hereto
acknowledge and agree that all calculations of the financial
covenants in Section 8.11(a), (b) and (d) (including for
purposes of determining the Applicable Rate) shall be made on
a Pro Forma Basis.
(s) Section 2.01(b) is hereby amended to read as follows:
(b) On the Closing Date, the Lenders made available
to the Borrower a term loan in Dollars in an aggregate
principal amount equal to TWO HUNDRED FIFTY MILLION DOLLARS
($250,000,000). As of the First Amendment Effective Date, the
outstanding principal amount of such Loan equals One Hundred
and Ninety-Three Million Nine Hundred and Ninety-Two Thousand
Five Hundred Forty-Three and Eighty-Six/One Hundredths
Dollars ($193,992,543.86) (the "Initial Term Loan"). Subject
to the terms and conditions set forth herein, each Term Loan
Lender with a Delayed Draw Term Loan Commitment severally
agrees to make a portion of a term loan (the "Delayed Draw
Term Loan") available to the Borrower in Dollars during the
Availability Period in the aggregate amount of such Term Loan
Lender's Delayed Draw Term Loan Commitment. Amounts repaid or
prepaid on the Term Loan may not be reborrowed. The Term Loan
may consist of Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.
(t) The second sentence of Section 2.02(c) is hereby amended
to read as follows:
During the existence of a Default, (i) no Revolving
Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans (whether in Dollars or any Foreign
Currency) without the consent of (A) the Revolving Credit
Lenders holding more than fifty percent (50%) of the
Revolving Credit Commitments (other than Defaulting Lenders)
or (B) if the commitment of each Revolving Credit Lender to
make Revolving Credit Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 9.02 or otherwise, Lenders holding in the
aggregate more than 50% of the Revolving Credit Outstandings
(with the aggregate amount of each Revolving Credit Lender's
risk participation and funded participation in L/C
Obligations, Foreign Currency Fronting Loans and Swing Line
Loans being deemed "held" by such Lender for purposes
hereof), and such Lenders may demand that (1) any or all of
the then outstanding Eurocurrency Rate Loans be converted
immediately to Base Rate Loans and (2) any or all of the then
outstanding Eurocurrency Rate Loans denominated in a Foreign
Currency be prepaid, or redenominated into Dollars in the
amount of the Dollar Equivalent thereof, on the last day of
the then current Interest Period with respect thereto and
(ii) no Term Loan may be requested as, converted to or
continued as Eurocurrency Rate Loans without the consent of
the Lenders (other than Defaulting Lenders) holding in the
aggregate at least a majority of the outstanding Term Loan,
if any, and such Lenders may demand that any or all of the
then outstanding Term Loan that are Eurocurrency Rate Loans
be converted immediately to Base Rate Loans.
(u) Section 2.03(a)(ii)(B) is hereby amended by replacing the
reference to "Required Lenders" therein with a reference to "Revolving
Credit Lenders holding in the aggregate more than 50% of the Revolving
Credit Commitments".
(v) Section 2.03(a)(iv) is hereby amended by replacing the
reference to "Required Lenders" therein with a reference to "Revolving
Credit Lenders holding in the aggregate more than 50% of the Revolving
Credit Commitments".
(w) A new Section 2.07(f) is hereby added following Section
2.07(e) to read as follows:
(f) The Borrower may, upon notice to the
Administrative Agent, terminate the Delayed Draw Term Loan
Commitments; provided that any such notice shall be received
by the Administrative Agent not later than 1:00 p.m. two
Business Days prior to the date of termination. The
Administrative Agent will promptly notify each Lender with a
Delayed Draw Term Loan Commitment of any such notice of
termination of the Delayed Draw Term Loan Commitments. All
commitment fees with respect to the Delayed Draw Term Loan
Commitments accrued until the effective date of any
termination of the Delayed Draw Term Loan Commitments shall
be paid on the effective date of such termination.
(x) Section 2.08(b) is hereby amended to read as follows:
(b) Term Loan. The Borrower shall repay the
outstanding principal amount of the Term Loan in installments
on the dates and in the amounts set forth in the table below
(as such installments may hereafter be adjusted as a result
of prepayments made pursuant to Section 2.05 or Section
2.06), unless accelerated sooner pursuant to Section 9.02:
------------------------------ ------------------------------
Principal Amortization
Payment (% of Term Loan
outstanding on such payment
Payment Dates date, unless otherwise noted)
------------------------------ ------------------------------
March 31, 2005 0.25%
------------------------------ ------------------------------
June 30, 2005 0.25%
------------------------------ ------------------------------
September 30, 2005 0.25%
------------------------------ ------------------------------
December 31, 2005 0.25%
------------------------------ ------------------------------
March 31, 2006 0.25%
------------------------------ ------------------------------
June 30, 2006 0.25%
------------------------------ ------------------------------
September 30, 2006 0.25%
------------------------------ ------------------------------
December 31, 2006 0.25%
------------------------------ ------------------------------
March 31, 2007 0.25%
------------------------------ ------------------------------
June 30, 2007 0.25%
------------------------------ ------------------------------
September 30, 2007 0.25%
------------------------------ ------------------------------
December 31, 2007 0.25%
------------------------------ ------------------------------
March 31, 2008 0.25%
------------------------------ ------------------------------
June 30, 2008 0.25%
------------------------------ ------------------------------
September 30, 2008, 25.0% of the Term Loan
December 31, 2008 and outstanding on
March, 29, 2009 September 30, 2008
------------------------------ ------------------------------
Maturity Date Outstanding Principal
Balance of Term Loan
------------------------------ ------------------------------
(y) The first sentence of Section 2.10(a) is hereby amended
to read as follows:
The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with
its Pro Rata Share, a commitment fee in Dollars per annum
equal to the product of (i) the Applicable Rate times (ii)
the actual daily amount by which the Revolving Credit
Facility exceeds the sum of (x) the Outstanding Amount of
Revolving Credit Loans and (y) the Outstanding Amount of L/C
Obligations; provided, however, that no commitment fee shall
accrue on the Revolving Credit Commitment of a Defaulting
Lender so long as such Lender shall be a Defaulting Lender.
(z) The second sentence of Section 2.10(b) is hereby amended
to read as follows:
The Borrower shall pay to the Administrative Agent, BAS and
Xxxxxx Xxxxxxx for their own respective accounts fees in the
amounts and at the times specified in the Fee Letter.
(aa) A new Section 2.10(c) is hereby added following Section
2.10(b) to read as follows:
(c) Delayed Draw Term Loan Commitment Fee. The
Borrower shall pay to the Administrative Agent for the
account of each Lender having a Delayed Draw Term Loan
Commitment in accordance with its pro rata share of the
Delayed Draw Term Loan Commitment, a commitment fee in
Dollars per annum equal to the product of (i) (A) for the
period from the First Amendment Effective Date through
February 28, 2005, 0.25%, (B) for the period from March 1,
2005 through April 30, 2005, 0.50%, and (C) for the period
from May 1, 2005 through June 30, 2005, 1.00%, times (ii) the
aggregate amount of the Delayed Draw Term Loan Commitments of
the Lenders. The commitment fee shall accrue at all times
during the Availability Period with respect to the Delayed
Draw Term Loan Commitments, including at any time during
which one or more of the conditions in Article V is not met,
and shall be calculated for the applicable period and due and
payable quarterly in arrears on March 31, 2005 and June 30,
2005 and upon termination of the Delayed Draw Term Loan
Commitments pursuant to Section 2.07(f) or the date that the
portion of the Term Loan available under the Delayed Draw
Term Loan Commitments has been funded to the Borrower.
(bb) Section 3.05(d) is hereby amended to read as follows:
(d) any assignment of a Eurocurrency Rate Loan on a
day other than the last day of the Interest Period therefor
as a result of an assignment by Bank of America or Xxxxxx
Xxxxxxx as part of the primary syndication of the Term Loan
during the 180-day period immediately following the First
Amendment Effective Date;
(cc) A new Section 5.02(e) is hereby added following Section
5.02(d) and shall read as follows:
(e) With respect to the funding of the Delayed Draw
Term Loan, (i) receipt by the Administrative Agent on the
VISX Acquisition Date of a Pro Forma Compliance Certificate
from the Borrower demonstrating that, upon giving effect to
the VISX Acquisition, the Loan Parties are in compliance with
the financial covenants set forth in Section 8.11(a), (b) and
(d) as of the most recent fiscal quarter for which the
Borrower has delivered financial statements pursuant to
Section 7.01(a) or (b), (ii) receipt by the Administrative
Agent of the VISX Acquisition Date Certificate, (iii) receipt
by the Administrative Agent of a copy, certified by a
Responsible Officer of the Borrower as true and complete, of
the VISX Purchase Agreement, together with all exhibits and
schedules thereto, (iv) receipt by the Administrative Agent
of reasonably satisfactory evidence that (A) the VISX
Acquisition will be consummated on the VISX Acquisition Date
in compliance with applicable law and regulatory approvals
and in accordance with the VISX Acquisition Documents and (B)
the portion of the purchase price for the VISX Acquisition
paid in cash shall not exceed $185 million, (v) receipt by
the Administrative Agent of (A) the unaudited balance sheet
of VISX and its Subsidiaries as of the fiscal quarter most
recently ended prior to the VISX Acquisition Date (and at
least thirty (30) days prior to the VISX Acquisition Date)
and the related statements of income or operations and cash
flows for VISX and its Subsidiaries for such fiscal quarter
and (B) pro forma forecasts of income or operations and cash
flows for the first year subsequent to the VISX Acquisition
prepared by management of the Borrower after giving effect to
the VISX Acquisition, each in form reasonably satisfactory to
the Administrative Agent, (vi) receipt by the Administrative
Agent of (A) searches of Uniform Commercial Code filings in
each jurisdiction where any collateral to be acquired by any
Loan Party in the VISX Acquisition is located or where a
filing would need to be made in order to perfect the
Administrative Agent's security interest in such collateral,
copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than
Liens permitted pursuant to Section 8.01 hereof, (B) duly
executed or authorized, as necessary, UCC filings, mortgages,
notices of grant of security interest in patents, trademarks
and/or copyrights and related documents as are reasonably
necessary, in the Administrative Agent's reasonable
discretion, to attach and perfect the Administrative Agent's
security interest in such collateral (in each case, only to
the extent required by this Agreement and the other Loan
Documents) and (C) a duly executed Joinder Agreement for each
entity that will become a Domestic Subsidiary after giving
effect to the VISX Acquisition along with a favorable opinion
of U.S. counsel with respect to any such entity that is a
Material Subsidiary, (vii) receipt of all necessary material
governmental and third party consents and approvals (without
the imposition of any conditions that are not reasonably
acceptable to the Joint Lead Arrangers) with respect to the
VISX Acquisition, which consents and approvals shall remain
in effect, and expiration of all applicable waiting periods
with respect to the VISX Acquisition without any material
adverse action being taken by any competent authority, and
(viii) no Default or Event of Default shall exist immediately
prior to or after giving effect to the VISX Acquisition.
(dd) Section 6.25 is hereby amended by deleting the period
(".") at the end of the second sentence thereof and replacing it with
"which would be reasonably expected to have a Material Adverse
Effect."
(ee) Section 7.02(p) is hereby amended by replacing the
reference to "Sections 7.01(a) and (b)" therein with a reference to
"Sections 7.01(a) and (b) (but only with respect to the second fiscal
quarter of such Fiscal Year)."
(ff) Section 7.11 is hereby amended to read as follows:
7.11 Use of Proceeds.
Use the proceeds of the Credit Extensions (a) to
refinance existing Indebtedness, (b) to partially finance the
VISX Acquisition, (c) to provide for working capital to the
Borrower and its Subsidiaries, (d) to pay fees and expenses
related to the VISX Acquisition and (e) for other general
corporate purposes not in contravention of any Law or of any
Loan Document; provided, however, that in no event shall any
proceeds from any Loan be used to pay, prepay or redeem the
principal amount of the Indebtedness under the Existing
Convertible Senior Subordinated Notes Documents, the
Indebtedness under the 2004 Convertible Senior Subordinated
Notes Documents or any other Indebtedness that is
subordinated to any Obligations or to purchase, redeem or
acquire any Equity Interests of the Borrower; provided
further that the proceeds of the Delayed Draw Term Loan shall
be used only to finance a portion of the VISX Acquisition on
the VISX Acquisition Date and to pay fees and expenses
related thereto.
(gg) Section 7.12(v) is hereby amended to read as follows:
(v) with respect to any Material Subsidiary, within
90 days after such formation or acquisition, deliver upon the
request of the Administrative Agent, to the Administrative
Agent in its sole discretion, a signed copy of a favorable
opinion, addressed to the Administrative Agent and the other
Secured Parties, of counsel for the Loan Parties acceptable
to the Administrative Agent as to the matters contained in
clauses (i), (iii) and (iv) above, as to such guaranties,
guaranty supplements, mortgages, pledges, assignments,
security agreement supplements, intellectual property
security agreement supplements and security agreements being
legal, valid and binding obligations of each Loan Party party
thereto enforceable in accordance with their terms, as to the
matters contained in clause (iv) above, as to such
recordings, filings, notices, endorsements and other actions
being sufficient to create valid perfected Liens on such
properties, and as to such other matters as the
Administrative Agent may reasonably request;
(hh) Section 7.23 is hereby deleted in its entirety from the
Credit Agreement.
(ii) Clause (4) of Section 8.02(k) is hereby amended to read
as follows:
(4) immediately before and after giving effect to
the acquisition of a company or business pursuant to this
clause (k), the Borrower shall be in pro forma compliance
with the covenants contained in Section 8.11(a), (b) and (d),
calculated based on the financial statements most recently
delivered to the Lenders pursuant to Section 7.01 and as
though such acquisition had occurred at the beginning of the
four-quarter period covered thereby, as evidenced by a
certificate of a Responsible Officer of the Borrower
delivered to the Lenders demonstrating such compliance; and
(jj) New Sections 8.02(p), (q) and (r) are hereby added
following Section 8.02(o) and shall read as follows:
(p) Investments in the form of intercompany loans
and capital contributions made by the Borrower and AMO
Holdings to certain of their Foreign Subsidiaries in order
that such Foreign Subsidiaries could use the proceeds of such
intercompany loans and capital contributions to purchase
portions of the assets constituting the Surgical Business on
the Acquisition Date;
(q) the VISX Acquisition on or before June 30, 2005,
provided that the Loan Parties have complied with the
provisions of Sections 5.02(e)(i) through (viii); and
(r) Investments described in Section 8.05(k).
(kk) Section 8.03(h) is hereby amended to read as follows:
(h) unsecured Indebtedness of AMO International
Holdings owing to AMO Holdings in the aggregate principal
amount of $20,000,000 (it being understood and agreed that
the consideration giving rise to such Indebtedness shall not
be cash consideration but rather the partial cancellation of
AMO Holding's Equity Interests in AMO International
Holdings); provided that AMO Holdings shall have delivered
the promissory note evidencing such Indebtedness to the
Administrative Agent;
(ll) A new Section 8.05(k) is hereby added following Section
8.05(j) and shall read as follows:
(k) (i) AMO Holdings may (A) exchange the Equity
Interests of AMO International Holdings for the Equity
Interests of a newly formed Subsidiary ("Newco 2"); provided
that Newco 2 becomes the owner of the Equity Interests of AMO
International Holdings and (B) following the creation of
Newco 2, create a directly owned Subsidiary ("Newco 1") and
transfer the Equity Interests of Newco 2 to Newco 1 and (ii)
AMO International Holdings may issue a promissory note in the
principal amount of $20,000,000 to AMO Holdings in exchange
for the partial cancellation of AMO Holding's Equity
Interests in AMO International Holdings and AMO International
Holdings may sell the Equity Interests of AMO Canada and AMO
Brazil to AMO Holdings;
(mm) Section 9.01(b) is hereby amended by deleting the
reference to "7.23" therein.
(nn) Sections 11.01(h) and (i) are hereby amended to read as
follows:
(h) without the consent of the Revolving Credit
Lenders holding more than fifty percent (50%) of the
Revolving Credit Commitments (other than Defaulting Lenders),
(i) waive any Default or Event of Default for purposes of
Section 5.02 for purposes of any Borrowing of a Revolving
Credit Loan or L/C Credit Extension and (ii) amend, change,
waive, discharge or terminate Section 2.01(a), 2.02, 2.03 or
2.06 or any term, covenant or agreement contained in Article
VIII or Article IX;
(i) without the consent of the Term Loan Lenders
holding more than fifty percent (50%) of the outstanding Term
Loan (and during the Availability Period, without
duplication, the Delayed Draw Term Loan Commitments) (other
than Defaulting Lenders), (i) amend, change, waive, discharge
or terminate Section 2.06 so as to alter the manner or
application of proceeds of any mandatory prepayment required
by such Section 2.06 and (ii) amend, change, waive, discharge
or terminate Section 2.05(d) (although if additional
extensions of term loans are extended after the Closing Date
pursuant to this Agreement with the consent of the Required
Lenders, such extensions of term loans shall be included on a
pro rata basis in the various prepayments or repayments
required pursuant to Section 2.05 and Section 2.06);
(oo) Clause (iii) of Section 11.06(b) is hereby amended by
adding the words "(such approval not to be unreasonably withheld or
delayed)" immediately after the words "Foreign Currency Fronting
Lender" therein.
(pp) Schedule 2.01 is hereby amended by adding to such
schedule the language set forth on Schedule A attached hereto.
(qq) A new "Exhibit I-1" is hereby added in the form of
Exhibit I-1 attached hereto.
2. VISX Amendments. Upon the consummation of the VISX Acquisition in
accordance with the terms of the Credit Agreement, the Credit Agreement will be
automatically amended in the following respects:
(a) Clause (c) of the definition of "Change of Control" in
Section 1.01 will be amended to read as follows:
(c) the occurrence of a "Change of Control" (or any
comparable term) under, and as defined in any Permitted
Senior Unsecured Note Document; or
(b) Clause (vii) of the definition of "Consolidated EBITDA"
in Section 1.01 will be amended to read as follows:
(vii) (A) the cash charges related to the Surgical Business
Acquisition paid during such period so long as such cash
charges are made within 18 months of the consummation of the
Surgical Business Acquisition and do not exceed $10,000,000
in the aggregate, (B) the non-cash charges related to the
Surgical Business Acquisition made within 18 months of the
consummation of the Surgical Business Acquisition, (C) the
cash charges related to the VISX Acquisition paid during such
period so long as such cash charges are made within 18 months
of the consummation of the VISX Acquisition and do not exceed
$10,000,000 in the aggregate, (D) the amount of the severance
payments made to departing VISX employees during such period
so long as such severance payments are made within 12 months
of the consummation of the VISX Acquisition and do not exceed
$25,000,000 in the aggregate and (E) the non-cash charges
related to the VISX Acquisition made within 18 months of the
consummation of the VISX Acquisition and minus
(c) The last sentence of the definition of "Consolidated
EBITDA" in Section 1.01 will be amended to read as follows:
Notwithstanding any provision to the contrary
contained herein, for purposes of calculating the
Consolidated Total Leverage Ratio, the Consolidated Senior
Leverage Ratio, the Consolidated Fixed Charge Coverage Ratio
and the Consolidated Interest Coverage Ratio as of the end of
the fiscal quarters ending September 30, 2004, December 31,
2004, and March 31, 2005, Consolidated EBITDA for the four
fiscal quarter period ending as of the applicable fiscal
quarter shall be determined as follows:
Date of Fiscal Quarter End
--------------------------
September 30, 2004 $103,758,000 plus actual Consolidated
EBITDA for the fiscal quarter ending
September 30, 2004
December 31, 2004 $63,770,200 plus actual Consolidated
EBITDA for the two fiscal quarters
ending December 31, 2004
March 31, 2005 $35,785,100 plus actual Consolidated
EBITDA for the three fiscal quarters
ending March 31, 2005 (without
giving effect to the VISX
Acquisition) plus, without
duplication, actual Consolidated
EBITDA for VISX and its Subsidiaries
for the four fiscal quarters ending
Xxxxx 00, 0000
(x) Clause (i) of the definition of "Excess Cash Flow" in
Section 1.01 will be amended to read as follows:
(i) (A) cash charges in connection with the Surgical
Business Acquisition made during such period within 18 months
of the consummation of the Surgical Business Acquisition in
an amount not to exceed $10,000,000 in the aggregate, (B)
cash charges in connection with the VISX Acquisition made
during such period within 18 months of the consummation of
the VISX Acquisition in an amount not to exceed $10,000,000
in the aggregate and (C) the amount of the severance payments
made to departing VISX employees during such period within 12
months of the consummation of the VISX Acquisition in an
amount not to exceed $25,000,000 in the aggregate,
(e) The definition of "Foreign Currency Sublimit" in Section
1.01 will be amended to read as follows:
"Foreign Currency Sublimit" means, at any time, an
amount equal to the lesser of (a) $35,000,000 and (b) the
unused amount of the Aggregate Commitments under the
Revolving Credit Facility at such time. The Foreign Currency
Sublimit is part of, and not in addition to, the Revolving
Credit Commitments.
(f) The definition of "Letter of Credit Sublimit" in Section
1.01 will be amended to read as follows:
"Letter of Credit Sublimit" means, at any time, an
amount equal to the lesser of (a) $35,000,000 and (b) the
unused amount of the Aggregate Commitments under the
Revolving Credit Facility at such time. The Letter of Credit
Sublimit is part of, and not in addition to, the Revolving
Credit Facility.
(g) The definition of "Material Contract" in Section 1.01
will be amended to read as follows:
"Material Contract" means, with respect to any
Person, each contract to which such Person is a party
involving aggregate consideration payable to or by such
Person of $30,000,000 or more in any year or otherwise
material to the business, condition (financial or otherwise),
operations, performance, properties or prospects of such
Person.
(h) The definition of "Swing Line Sublimit" in Section 1.01
will be amended to read as follows:
"Swing Line Sublimit" means, at any time, an amount
equal to the lesser of (a) $20,000,000 and (b) the unused
amount of the Aggregate Commitments under the Revolving
Credit Facility as such time. The Swing Line Sublimit is part
of, and not in addition to, the Revolving Credit Commitments.
(i) The definition of "Threshold Amount" in Section 1.01
will be amended to read as follows:
"Threshold Amount" means $15,000,000.
(j) The following definitions will be added to Section 1.01
in the appropriate alphabetical order and will read as follows:
"Permitted Senior Unsecured Indebtedness" means the
senior unsecured Indebtedness of the Borrower (and senior
unsecured guaranties thereof by any Guarantor) incurred under
the Permitted Senior Unsecured Notes and the other Permitted
Senior Unsecured Note Documents which satisfies the following
requirements: (a) at least five (5) Business Days prior to
the issuance thereof, the Borrower shall have delivered to
the Administrative Agent the then current drafts of the
Permitted Senior Unsecured Note Documents and with any
changes thereto made after the initial delivery of such
Permitted Senior Unsecured Note Documents to be delivered to
the Administrative Agent prior to the incurrence of the
related Permitted Senior Unsecured Notes, (b) the final
maturity thereof is no earlier than six (6) months following
the Maturity Date, (c) the respective Permitted Senior
Unsecured Note Documents do not contain (i) any financial
maintenance covenants (or defaults having the same effect as
a financial maintenance covenant) or (ii) any cross-default
provisions to the Credit Facilities (other than cross payment
default provisions), (d) there are no scheduled amortization,
mandatory redemption or sinking fund provisions or similar
provisions prior to the maturity of the Permitted Senior
Unsecured Notes, (e) the other terms and conditions of each
incurrence of Permitted Senior Unsecured Notes shall be no
more onerous or restrictive on the Borrower and its
Subsidiaries, taken as a whole, than the terms and conditions
contained in this Agreement, (f) no Default or Event of
Default then exists or would result from the incurrence
thereof, and (g) prior to the incurrence of any Permitted
Senior Unsecured Notes, the Borrower shall have delivered to
the Administrative Agent a certificate of a Responsible
Officer certifying (and showing the calculations thereof in
reasonable detail) that the Borrower and its Subsidiaries
shall be in compliance with Sections 8.11(a), (b) and (d) on
a Pro Forma Basis after giving effect to the incurrence of
any such Permitted Senior Unsecured Notes.
"Permitted Senior Unsecured Notes" means senior
unsecured notes of the Borrower (which may be guarantied by
any Guarantor) issued pursuant to an effective registration
statement under the Securities Act of 1933, as amended, or
Rule 144A thereunder.
"Permitted Senior Unsecured Note Documents" means
all documentation (including, without limitation, any
indenture or purchase agreement) entered into in connection
with any issuance of Permitted Senior Unsecured Notes.
(k) Clause (i) of Section 2.06(a) will be amended by
replacing the reference to "$25,000,000" therein with a reference to
"$40,000,000".
(l) Clause (iii) of Section 2.06(a) will be amended to read
as follows:
(iii) the sale or issuance by the Borrower or any of
its Subsidiaries of any Equity Interests (including, without
limitation, receipt of any capital contribution) (other than
Net Cash Proceeds received from (x) the Borrower or any of
its Subsidiaries or (y) purchases of stock and exercise of
options by employees of the Borrower or any of its
Subsidiaries pursuant to employee benefit plans in an
aggregate amount not to exceed $50,000,000 in any Fiscal Year
and in any event excluding any issuance of Indebtedness
convertible into Equity Interests and any subsequent
conversion of such Indebtedness into Equity Interests);
provided that the Borrower shall not be required to make any
such prepayment if the Consolidated Total Leverage Ratio is
less than 2.25 to 1.0 as of the fiscal quarter end most
recently preceding the receipt of the Net Cash Proceeds from
the sale or issuance of any such Equity Interests, and
(m) Clause (iv) of Section 2.06(a) will be amended by
replacing the reference to "$7,500,000" therein with a reference to
"$20,000,000".
(n) The first sentence of Section 6.08(a) will be amended to
read as follows:
Set forth on Schedule 6.08(a) is a complete and accurate list
of all real property owned by the Loan Parties as of the VISX
Acquisition Date, showing the street address, county or other
relevant jurisdiction, state and record owner thereof.
(o) The first sentence of Section 6.08(b) will be amended to
read as follows:
Set forth on Schedule 6.08(b) is a complete and accurate list
as of the VISX Acquisition Date of all leases of real
property with respect to which the aggregate annual rental
payments are equal to or greater than $1,000,000 under which
any Loan Party is the lessee, showing the street address,
county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof.
(p) Section 6.08(c) will be amended by replacing the
reference to "Closing Date" therein with a reference to "VISX
Acquisition Date."
(q) Section 6.17 will be amended by replacing the reference
to "Acquisition Date" therein with a reference to "VISX Acquisition
Date".
(r) Section 6.25 will be amended by replacing the reference
to "Acquisition Date" therein with a reference to "VISX Acquisition
Date".
(s) Clause (x) of Section 7.12(iii) will be amended by
replacing the reference to "$1,500,000" therein with a reference to
"$3,000,000".
(t) Clause (x) of Section 7.12(iv) will be amended by
replacing the reference to "$1,500,000" therein with a reference to
"$3,000,000".
(u) Section 8.02(g) will be amended to read as follows:
(g) Investments, including intercompany loans, by
the Borrower or any Guarantor in any Foreign Subsidiary;
provided, however, that any such Investments, including
intercompany loans, made after the Closing Date by the
Borrower and the Guarantors shall not exceed $75,000,000 in
the aggregate at any one time outstanding;
(v) The language preceding the proviso in Section 8.02(k)
will be amended to read as follows:
other Investments for the acquisition of all of the
Equity Interests or all or substantially all of the assets of
any Person in an aggregate amount invested not to exceed (i)
if, at the time of such Investment and after giving pro forma
effect thereto, the Consolidated Total Leverage Ratio is
2.75:1 or greater, $100,000,000, and (ii) if, at the time of
such Investment and after giving pro forma effect thereto,
the Consolidated Total Leverage Ratio is less than 2.75:1,
$200,000,000;
(w) Section 8.02(l) will be amended to read as follows:
(l) other Investments in an aggregate amount
invested not to exceed (i) if, at the time of such Investment
and after giving pro forma effect thereto, the Consolidated
Total Leverage Ratio is 2.75:1 or greater, $50,000,000, and
(ii) if, at the time of such Investment and after giving pro
forma effect thereto, the Consolidated Total Leverage Ratio
is less than 2.75:1, $100,000,000; provided that immediately
before and after giving effect thereto, no Default shall have
occurred and be continuing or would result therefrom;
(x) The language preceding the proviso in Section 8.03(d)
will be amended to read as follows:
Indebtedness (whether secured or unsecured) of any Foreign
Subsidiaries, together with Indebtedness of any such Foreign
Subsidiaries incurred in connection with the sale of accounts
receivable pursuant to Section 8.05(h), in an aggregate
principal amount of no more than $75,000,000,
(y) Section 8.03(f) will be amended to read as follows:
(f) Indebtedness (i) in respect of capital leases
and purchase money obligations for fixed or capital assets
within the limitations set forth in Section 8.01(j) and (ii)
secured by Liens on fixed or capital assets and assumed in
connection with the acquisition of such fixed or capital
assets; provided, however, that the aggregate amount of all
such Indebtedness at any one time outstanding shall not
exceed $20,000,000;
(z) Section 8.03(l) will be amended to read as follows:
(l) so long as no Default has occurred and is
continuing or would result therefrom, other Indebtedness
incurred in the ordinary course of business in an aggregate
principal amount not to exceed $20,000,000 at any time
outstanding;
(aa) Section 8.03(p) will be amended to read as follows:
(p) the Additional Subordinated Indebtedness and/or
the Permitted Senior Unsecured Indebtedness in an aggregate
principal amount not to exceed $500,000,000; provided, that
an amount equal to the Net Cash Proceeds from the issuance of
such Additional Subordinated Indebtedness and/or Permitted
Senior Unsecured Indebtedness shall be used to prepay the
Term Loan until the Term Loan has been paid in full and,
after payment in full of the Term Loan, may be used for other
lawful corporate purposes.
(bb) Section 8.05(h) will be amended to read as follows:
(h) so long as no Default shall have occurred and be
continuing, other Dispositions so long as after giving effect
to such Disposition the aggregate cash proceeds for all such
Dispositions made since the Closing Date is at least 50% of
the total consideration for all such Dispositions and the
aggregate consideration for all such Dispositions does not
exceed $25,000,000 in any year or $75,000,000 in the
aggregate for all such Dispositions;
(cc) Section 8.06(f) will be amended to read as follows:
(f) the Borrower may purchase, redeem, retire or
otherwise acquire, directly or indirectly, its own Equity
Interests so long as:
(i) no Revolving Credit Loan, Swing Line
Loan or Foreign Currency Fronting Loan is
outstanding hereunder (or will be outstanding
immediately after giving effect thereto); and
(ii) (A) immediately before and after
giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or
would result therefrom and (B) any of (I) after
giving effect to any such purchase, redemption,
retirement or acquisition on a pro forma basis, the
Consolidated Total Leverage Ratio does not exceed
2.0 to 1.0, (II) after giving effect to any such
purchase, redemption, retirement or acquisition on a
pro forma basis, if the Consolidated Total Leverage
Ratio is greater than 2.0 to 1.0, but less than or
equal to 3.0 to 1.0, the sum of (a) the total amount
paid by the Borrower for all Equity Interests
purchased, redeemed, retired or acquired plus (b)
the total amount of Indebtedness subordinated to the
Obligations that has been prepaid, redeemed,
purchased, defeased or otherwise satisfied prior to
the scheduled maturity thereof pursuant to Section
8.16(v) hereof shall not exceed $250,000,000 in any
such fiscal year, or (III) after giving effect to
any such purchase, redemption, retirement or
acquisition on a pro forma basis, if the
Consolidated Total Leverage Ratio is greater than
3.0 to 1.0 and the Term Loan has been paid in full,
the sum of (a) the total amount paid by the Borrower
for all Equity Interests purchased, redeemed,
retired or acquired plus (b) the total amount of
Indebtedness subordinated to the Obligations that
has been prepaid, redeemed, purchased, defeased or
otherwise satisfied prior to the scheduled maturity
thereof pursuant to Section 8.16(v) hereof shall not
exceed $250,000,000 in any such fiscal year; and
(dd) Clause (I) in the second proviso in Section 8.09(a)
will be amended to read as follows:
(I) the matters referred to clauses (i) - (iv) above
contained in the Existing Convertible Senior Subordinated
Notes Documents, the 2004 Convertible Senior Subordinated
Notes Documents, the documentation governing any Additional
Subordinated Indebtedness or the Permitted Senior Unsecured
Note Documents,
(ee) Section 8.11(a) will be amended to read as follows:
(a) Maximum Consolidated Total Leverage Ratio.
Permit the Consolidated Total Leverage Ratio as of the end of
any fiscal quarter of the Borrower to be more than the ratio
set forth opposite such fiscal quarter below:
------------------------------------ -----------------
Quarter Ending Ratio
------------------------------------ -----------------
December 31, 2004 5.25:1.0
March 31, 2005 4.50:1.0
June 30, 2005 4.25:1.0
September 30, 2005 4.25:1.0
December 31, 2005 3.75:1.0
March 3l, 2006 3.75:1.0
June 30, 2006 3.75:1.0
September 30, 2006 3.75:1.0
December 31, 2006 3.25:1.0
March 31, 2007 3.25:1.0
June 30, 2007 3.25:1.0
September 30, 2007 3.25:1.0
December 31, 2007 3.25:1.0
March 3l, 2008 3.25:1.0
June 30, 2008 3.25:1.0
September 30, 2008 and thereafter 3.25:1.0
------------------------------------ -----------------
(ff) Section 8.11(b) will be amended to read as follows:
(b) Maximum Consolidated Senior Leverage Ratio.
Permit the Consolidated Senior Leverage Ratio as of the end
of any fiscal quarter of the Borrower to be more than the
ratio set forth opposite such fiscal quarter below:
-----------------------------------------------------
Quarter Ending Ratio
-----------------------------------------------------
December 31, 2004 2.75:1.0
March 31, 2005 2.50:1.0
June 30, 2005 2.50:1.0
September 30, 2005 2.50:1.0
December 31, 2005 2.00:1.0
March 31, 2006 2.00:1.0
June 30, 2006 2.00:1.0
September 30, 2006 2.00:1.0
December 31, 2006 1.75:1.0
March 31, 2007 1.75:1.0
June 30, 2007 1.75:1.0
September 30, 2007 and thereafter 1.75:1.0
-----------------------------------------------------
(gg) Section 8.11(c) will be amended to read as follows:
(c) Minimum Consolidated Fixed Charge Coverage
Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as
of the end of any fiscal quarter of the Borrower to be less
than the ratio set forth opposite such fiscal quarter below:
-------------------------------------- ------------------
Quarter Ending Ratio
-------------------------------------- ------------------
December 31, 2004 1.10:1.0
March 31, 2005 1.10:1.0
June 30, 2005 1.10:1.0
September 30, 2005 1.10:1.0
December 3l, 2005 1.25:1.0
March 31, 2006 1.25:1.0
June 30, 2006 1.25:1.0
September 30, 2006 1.25:1.0
December 31, 2006 1.50:1.0
March 31, 2007 1.50:1.0
June 30, 2007 1.50:1.0
September 30, 2007 1.50:1.0
December 31, 2007 1.50:1.0
March 3l, 2008 1.50:1.0
June 30, 2008 1.50:1.0
September 30, 2008 1.50:1.0
December 31, 2008 and thereafter 1.00:1.0
-------------------------------------- -------------
(hh) Section 8.12 will be amended to read as follows:
8.12 Capital Expenditures.
Make or become legally obligated to make any
expenditure in respect of the purchase or other acquisition
of any fixed or capital asset (excluding normal replacements
and maintenance which are properly charged to current
operations), except for capital expenditures not exceeding,
in the aggregate for the Borrower and it Subsidiaries during
each period set forth below, the amount set forth opposite
such period:
Period Amount
-----------------------------------------------------------
Fiscal Year 2004 $ 55,000,000
Fiscal Year 2005 $ 65,000,000
Fiscal Year 2006 and each fiscal year
thereafter $ 50,000,000
provided, however, that so long as no Specified Event of
Default has occurred and is continuing or would result from
such expenditure, 50% of any portion of any amount set forth
above, if not expended in the Fiscal Year for which it is
permitted above, may be carried over for expenditure in the
next following Fiscal Year; provided further, however, that
any amount so carried over shall be deemed to have been used
first in making capital expenditures in such next following
Fiscal Year for purposes of calculating compliance with this
Section 8.12.
(ii) Subclauses (iv) and (v) of Section 8.16(a) will be
amended to read as follows:
(iv) the prepayment, redemption, purchase,
defeasance or other satisfaction prior to the scheduled
maturity thereof of any other Indebtedness which is not
subordinated to the Obligations so long as:
(A) no Revolving Credit Loan, Swing Line
Loan or Foreign Currency Loan is outstanding
hereunder (or will be outstanding immediately after
giving effect thereto); and
(B) immediately before and after giving
effect thereto, no Default or Event of Default shall
have occurred and be continuing or would result
therefrom; and
(v) the prepayment, redemption, purchase, defeasance
or other satisfaction prior to the scheduled maturity thereof
of any Indebtedness subordinated to the Obligations so long
as:
(A) no Revolving Credit Loan, Swing Line
Loan or Foreign Currency Loan is outstanding
hereunder (or will be outstanding immediately after
giving effect thereto);
(B) any of (I) after giving effect to any
such prepayment, redemption, purchase, defeasance or
other satisfaction on a pro forma basis, the
Consolidated Total Leverage Ratio does not exceed
2.0 to 1.0, (II) after giving effect to any such
prepayment, redemption, purchase, defeasance or
other satisfaction on a pro forma basis, if the
Consolidated Total Leverage Ratio is greater than
2.0 to 1.0, but less than or equal to 3.0 to 1.0,
the sum of (a) the total amount paid by the Borrower
for all Equity Interests purchased, redeemed,
retired or acquired pursuant to Section 8.06(f)
hereof plus (b) the total amount of such
Indebtedness that has been prepaid, redeemed,
purchased, defeased or otherwise satisfied shall not
exceed $250,000,000 in any such fiscal year, or
(III) after giving effect to any such prepayment,
redemption, purchase, defeasance or other
satisfaction on a pro forma basis, if the
Consolidated Total Leverage Ratio is greater than
3.0 to 1.0 and the Term Loan has been paid in full,
the sum of (a) the total amount paid by the Borrower
for all Equity Interests purchased, redeemed,
retired or acquired pursuant to Section 8.06(f)
hereof plus (b) the total amount of such
Indebtedness that has been prepaid, redeemed,
purchased, defeased or otherwise satisfied shall not
exceed $250,000,000 in any such fiscal year; and
(C) immediately before and after giving
effect thereto, no Default or Event of Default shall
have occurred and be continuing or would result
therefrom.
(jj) Clause (A) in Section 9.01(f)(i) will be amended to
read as follows:
(A) fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration,
demand, or otherwise) in respect of any Indebtedness or
Guarantee (other than Indebtedness hereunder, Indebtedness
under Swap Contracts and any Indebtedness referred to in
Section 9.01(o), (p), (q) or (r) below) having an aggregate
principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under
any combined or syndicated credit arrangement) of more than
the Threshold Amount, or
(kk) Section 9.01 will be further amended by deleting the
period (".") at the end of clause (q) thereof, replacing it with ";
or" and by adding a new clause (r) after clause (q) to read as
follows:
(r) Permitted Senior Unsecured Indebtedness. There
shall occur an "Event of Default" (or any comparable term)
under, and as defined in, any Permitted Senior Unsecured Note
Document.
(ll) Schedule 2.01 will be amended to increase the Revolving
Credit Commitment of each Revolving Credit Lender set forth on
Schedule B attached hereto by the amount identified for such Lender
on Schedule B attached hereto.
(mm) Schedules 6.08(a), 6.08(b), 6.08(c), 6.13, 6.17 and
6.25 will be amended to read as of the VISX Acquisition Date as
provided on Schedules 6.08(a), 6.08(b), 6.08(c), 6.13, 6.17 and 6.25
attached to the VISX Acquisition Date Certificate.
3. Conditions Precedent. This Amendment shall be effective upon
satisfaction of the following conditions precedent:
(a) receipt by the Administrative Agent of this Amendment
executed by the Borrower, the Guarantors, the Lenders, the
Syndication Agent and the Administrative Agent;
(b) receipt by the Administrative Agent of favorable
opinions of U.S. counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, and in form and substance
reasonably satisfactory to the Administrative Agent and its legal
counsel;
(c) receipt by the Administrative Agent of (i) resolutions
of each Loan Party approving this Amendment and authorizing execution
and delivery thereof, certified by a Responsible Officer of such Loan
Party to be true and correct and in force and effect as of the date
hereof and (ii) with respect to AMO Holdings, certificates of the
types referenced in Sections 5.01(a)(viii) and (ix), with all
applicable attachments, dated in each case reasonably near the First
Amendment Effective Date, along with such documents and
certifications as the Administrative Agent may reasonably require to
evidence that AMO Holdings is duly organized or formed, and is
validly existing, in good standing and qualified to engage in
business in its state of organization or formation;
(d) receipt of a rating for the Loans from both Xxxxx'x and
S&P; and
(e) receipt on or before the First Amendment Effective Date
by the Administrative Agent, the Joint Lead Arrangers, any Lender
and/or their affiliates of all other fees and expenses required to be
paid on or before the First Amendment Effective Date.
For purposes of determining compliance with the conditions specified
in this Section 3, each Lender that has signed this Amendment shall be
deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender
unless the Administrative Agent shall have received notice from such
Lender prior to the proposed First Amendment Effective Date specifying
its objection thereto.
4. Miscellaneous.
(a) The Credit Agreement (as amended by this Amendment), and
the obligations of the Loan Parties thereunder and under the other
Loan Documents, are hereby ratified and confirmed and shall remain in
full force and effect according to their terms.
(b) Each Guarantor (i) acknowledges and consents to all of
the terms and conditions of this Amendment, (ii) affirms all of its
obligations under the Loan Documents, (iii) agrees that this
Amendment and all documents executed in connection herewith do not
operate to reduce or discharge its obligations under the Credit
Agreement or the other Loan Documents and (iv) hereby confirms and
agrees that its Guaranty shall continue and remain in full force and
effect after giving effect to this Amendment and that,
notwithstanding any contrary terms in such Guaranty, such Guaranty
now applies to the Credit Agreement as amended by this Amendment.
(c) The Borrower and the Guarantors hereby represent and
warrant as follows:
(i) Each Loan Party has taken all necessary action
to authorize the execution, delivery and performance of this
Amendment.
(ii) This Amendment has been duly executed and
delivered by the Loan Parties and constitutes each of the
Loan Parties' legal, valid and binding obligations,
enforceable in accordance with its terms, except as such
enforceability may be subject to (A) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium
or similar laws affecting creditors' rights generally and (B)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
(iii) No consent, approval, authorization or order
of, or filing, registration or qualification with, any court
or governmental authority or third party is required in
connection with the execution, delivery or performance by any
Loan Party of this Amendment, other than those of the Lenders
and the Administrative Agent and those that have already been
obtained and are in full force and effect as of the date
hereof.
(d) The Loan Parties represent and warrant to the Lenders
that (i) the representations and warranties of the Loan Parties set
forth in Article VI of the Credit Agreement and in each other Loan
Document are true and correct in all material respects as of the date
hereof with the same effect as if made on and as of the date hereof,
except to the extent such representations and warranties expressly
relate solely to an earlier date and (ii) no event has occurred and
is continuing which constitutes a Default or an Event of Default.
(e) The Borrower agrees to pay all reasonable costs and
expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including
without limitation the reasonable fees and expenses of Xxxxx & Xxx
Xxxxx, PLLC.
(f) This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be
an original, but all of which shall constitute one and the same
instrument. Delivery of an executed counterpart of this Amendment by
telecopy shall be effective as an original and shall constitute a
representation that an executed original shall be delivered.
(g) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Signature Pages Follow]
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
and year first above written.
BORROWER: ADVANCED MEDICAL OPTICS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Operations and Finance
and Chief Executive Officer
GUARANTORS: AMO HOLDINGS, INC.,
a Delaware corporation, formerly AMO
Holdings, LLC
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Chief Financial
Officer
VAULT MERGER CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxx Xxxxxx
---------------------
Name: Xxxxx Xxxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING INC., as
Syndication Agent and Lender
By: /s/ Jaap L. Tonckens
-------------------------------
Name: Jaap L. Tonckens
Title: Vice President
BANK OF AMERICA, N.A., as Swing Line
Lender, L/C Issuer, Foreign Currency
Fronting Lender and Lender
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
[JPMorgan Chase Bank, N.A.]
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Its Duly Authorized Signatory
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE GOVERNOR AND COMPANY OF BANK OF
IRELAND
By: /s/ Eogman Xxxxx
------------------------------
Name: Eogman Xxxxx
Title: Deputy Manager
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
PNC Bank, National Association
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
UBS LOAN FINANCE LLC, as Lender
By: /s/ Xxxxxxx X. Saint
-----------------------------
Name: Xxxxxxx X. Saint
Title: Director Banking Product
Services, US
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director Banking
Product Services, US
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
UFJ Bank Limited
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
BIRCHWOOD FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Monument Capital Ltd., as Assignee
By: Alliance Capital Management L.P.,
as Investment Manager
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ Xxxxxx XxXxxxxx
-------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
ACM Income Fund, Inc.
By: /s/ Xxxxxx XxXxxxxx
-------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
AIB Debt Management, Ltd.
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President, Investment
Advisor to AIB Debt
Management, Limited
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President, Investment
Advisor to AIB Debt
Management, Limited
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
AMMC CLO III, LIMITED
By: American Money Management Corp.,
as Collateral Manager
By: /s/ Xxxxxxx X. Eng
--------------------------------
Name: Xxxxxxx X. Eng
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Centurion CDO VII, Ltd.
By: American Express Asset Management
Group, Inc. as Collateral Manager
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director - Operations
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
NORTHWOODS CAPITAL IV, LIMITED
By: XXXXXX, XXXXXX & CO., L.P.,
AS COLLATERAL MANAGER
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
ARES ENHANCED LOAN INVESTMENT STRATEGY,
LTD.
By: Ares Enhanced Loan Management,
L.P., Investment Manager
By: Ares Enhanced Loan GP, LLC
Its General Partner
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Vice President
Ares VIII CLO Ltd.
By: Ares CLO Management VIII, L.P.,
Investment Manager
By: Ares CLO GP VIII, LLC
Its General Partner
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
AVENUE CLO FUND, LIMITED
By: /s/ Xxxxxxx X'Xxxxxxx
------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Portfolio Manager
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
BABSON CLO LTD. 2004-I
BABSON CLO LTD. 2004-II
ELC (CAYMAN) LTD. 2000-I
SEABOARD CLO 2000 LTD.
SUFFIELD CLO, LIMITED
XXXXX CLO LTD. 2000-I
By: Babson Capital Management LLC as
Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
MAPLEWOOD (CAYMAN) LIMITED
By: Babson Capital Management LLC as
Investment Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: Babson Capital Management LLC as
Investment Adviser
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
XXXX & XXXXXXX XXXXX FOUNDATION
By: Babson Capital Management LLC as
Investment Adviser
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LOAN FUNDING VIII LLC
By: Babson Capital Management LLC as
Investment Adviser
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SIMSBURY CLO, LIMITED
By: Babson Capital Management LLC under
delegated authority from Massachusetts
Mutual Life Insurance Company as
Collateral Adviser
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
BlackRock Global Floating Rate Income
Trust
Blackrock Senior Income Series
Senior Loan Portfolio
By: /s/ Xxx Xxxxxxx
-------------------------------
Name: Xxx Xxxxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Bank of America, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Carlyle Loan Investment, Ltd.
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Carlyle High Yield Partners II, Ltd.
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Carlyle High Yield Partners VI, Ltd.
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
ELT LTD.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
CITIBANK N.A.
By: /s/ Xxxxx Xxxxxxx-Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Attorney-in-Fact
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Citigroup Investments Corporate Loan
Fund Inc.
By: Travelers Asset Management
International Company LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: VP
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Columbus Loan Funding, Ltd.
By: Travelers Asset Management
International Company LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: VP
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
JUPITER LOAN FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
WINGED FOOT FUNDING TRUST
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Agent
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Atrium II
By: /s/ Andy Marghar
--------------------------------
Name: Andy Marghar
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
CSAM Funding IV
By: /s/ Andy Marghar
----------------------------------
Name: Andy Marghar
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
INVESTORS BANK & TRUST COMPANY AS
SUB-CUSTODIAN AGENT OF CYPRESSTREE
INTERNATIONAL LOAN HOLDING COMPANY LIMITED
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
CYPRESS TREE CLAIF FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
BRYN MAWR CLO, Ltd.
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
FOREST CREEK CLO, Ltd.
By: Deerfield Capital Management LLC
as its Collateral Manager
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
ROSEMONT CLO, Ltd.
By: Deerfield Capital Management LLC
as its Collateral Manager
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
SEQUILS-Cumberland I, Ltd.
By: Deerfield Capital Management LLC
as its Collateral Manager
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
XXXXX XXXXX FLOATING-RATE INCOME TRUST
By: XXXXX XXXXX MANAGEMENT, AS INVESTMENT
ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: XXXXX XXXXX MANAGEMENT, AS INVESTMENT
ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
XXXXX XXXXX VT FLOATING-RATE INCOME FUND
By: XXXXX XXXXX MANAGEMENT, AS INVESTMENT
ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
XXXXXXX & CO
BY: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
TOLLI & CO
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
ERSTE BANK
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: First Vice President
s
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Fidelity Advisor Series II: Fidelity
Advisor Floating Rate High Income Fund
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Aurum CLO 2002-1 Ltd.,
By Columbia Management Advisors, Inc.
as Investment Manager
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Flagship CLO III
By: Flagship Capital Management, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
SRF 2000, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
FIRST TRUST/FOUR CORNERS SENIOR FLOATING
RATE INCOME FUND II, as Lender
By: Four Corners Capital Management LLC,
As Collateral Manager
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
FIRST TRUST/FOUR CORNERS SENIOR FLOATING
RATE INCOME FUND, as Lender
By: Four Corners Capital Management LLC,
As Collateral Manager
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
FORTRESS PORTFOLIO TRUST, as Lender
By: Four Corners Capital Management LLC,
As Collateral Manager
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Franklin CLO I, Limited
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Franklin CLO III, Limited
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Franklin Floating Rate Daily Access Fund
By: /s/ Xxxxxxxx Xxx
--------------------------------
Name: Xxxxxxxx Xxx
Title: Asst. Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Franklin Floating Rate Master Series
By: /s/ Xxxxxxxx Xxx
--------------------------------
Name: Xxxxxxxx Xxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
GULF STREAM-COMPASS CLO 2004-1 LTD
By: Gulf Stream Asset Management LLC
As Collateral Manager
By: /s/ Xxxxx X. Love
-------------------------------
Name: Xxxxx X. Love
Title: Chief Credit Officer
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
LOAN FUNDING VII LLC
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Treasurer, Highland Capital
Management, L.P.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Bushnell CBNA Loan Funding
LLC, for itself or as agent
for Bushnell CFPI Loan Funding LLC
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: As Attorney-in-Fact
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
IKB Capital Corporation
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: President, IKB Capital Corporation
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
ING PRIME RATE TRUST
By: ING Investment Management, Co.
as its Investment Management
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx, CFA
Title: Vice President
ING SENIOR INCOME FUND
By: ING Investment Management, Co.
as its Investment Management
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx, CFA
Title: Vice President
SEQUILS-PILGRIM I, LTD.
By: ING Investments, LLC
as its Investment Management
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx, CFA
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
AIM FLOATING RATE FUND
By: INVESCO Senior Secured Management,
Inc., as Sub-Adviser
By: /s/ Xxxxxx X.X. Xxxxx
--------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc. As Portfolio Advisor
By: /s/ Xxxxxx X.X. Xxxxx
-------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management,
Inc. As Portfolio Advisor
By: /s/ Xxxxxx X.X. Xxxxx
--------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
CHAMPLAIN CLO, LTD.
By: INVESCO Senior Secured Management,
Inc. As Collateral Manager
By: /s/ Xxxxxx X.X. Xxxxx
-------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management,
Inc. As Investment Advisor
By: /s/ Xxxxxx X.X. Xxxxx
-------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
DIVERSIFIED CREDIT PORTFOLIO, LTD.
By: INVESCO Senior Secured Management,
Inc. As Investment Advisor
By: /s/ Xxxxxx X.X. Xxxxx
-------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
INVESCO EUROPEAN CDO I.S.A.
By: INVESCO Senior Secured Management,
Inc. As Collateral Manager
By: /s/ Xxxxxx X.X. Xxxxx
-------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
LOAN FUNDING IX LLC
By: INVESCO Senior Secured Management,
Inc. As Portfolio Manager
By: /s/ Xxxxxx X.X. Xxxxx
--------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
PETRUSSE EUROPEAN CLO S.A.
By: INVESCO Senior Secured Management,
Inc. As Collateral Manager
By: /s/ Xxxxxx X.X. Xxxxx
-------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
SAGAMORE CLO LTD.
By: INVESCO Senior Secured Management,
Inc. As Collateral Manager
By: /s/ Xxxxxx X.X. Xxxxx
--------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
SAGATOGA CLO I LIMITED
By: INVESCO Senior Secured Management,
Inc. As Asset Manager
By: /s/ Xxxxxx X.X. Xxxxx
-----------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management,
Inc. As Collateral Manager
By: /s/ Xxxxxx X.X. Xxxxx
-------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
KATONAH I, LTD.
By: /s/ Xxxxx Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Katonah Capital, L.L.C. as Manager
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
KATONAH III, LTD.
By: /s/ Xxxxx Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Katonah Capital, L.L.C. as Manager
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Venture IV CDO, Limited
By its investment advisor MJX Asset
Management LLC
By: [ILLEGIBLE]
-------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
MARINER SENIOR FLOATING RATE TRUST
By: [ILLEGIBLE]
---------------------------
Name:
Title:
Longhorn CDO III, Ltd.
By: Xxxxxxx Xxxxx Investment Managers, L.P.
as Collateral Manager
By: /s/ [ILLEGIBLE] Alex
---------------------------------
Name: [ILLEGIBLE] Alex
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Clydesdale CLO 2004 Ltd.
By: Nomura Corporate Research and
Asset Management Inc.
as Investment Manager
By: /s/ Xxxxxxxxx XxxXxxx
------------------------------
Name: Xxxxxxxxx XxxXxxx
Title: Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Nomura Bond and Loan Fund
By: UFJ Trust Bank Limited as Trustee
By: Nomura Corporate Research and Asset
Management Inc.
Attorney in Fact
By: /s/ Xxxxxxxxx XxxXxxx
----------------------------------
Name: Xxxxxxxxx XxxXxxx
Title: Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Nuveen Floating Rate Income Fund, as
a Lender
By: Symphony Asset Management LCC
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Portfolio Manager
Nuveen Senior Income Fund, as a Lender
By: Symphony Asset Management LCC
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Portfolio Manager
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Mainstay Floating Rate Fund, a series
of Eclipse Funds Inc.
By: New York Life Investment Investment
Management LLC
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Octagon Investment Partners VII, Ltd.
By: Octagon Credit Investors, LLC as
collateral manager
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Portfolio Manager
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Octagon Investment Partners V, Ltd.
By: Octagon Credit Investors, LLC as
Portfolio Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Portfolio Manager
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Loan Funding III LLC
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
SEQUILS-MAGNUM, LTD.
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Southport CLO, Limited
By: Pacific Investment Management
Company LLC, as itsInvestment
Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Waveland - INGOTS, LTD.
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
PPM MONARCH BAY FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
BOSTON HARBOR CLO 2004-I, LTD.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: V.P.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
XXXXXX STRAITS CLO 2004, LTD.
By: Royal Bank of Canada as Collateral
Manager
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
State Street Bank and Trust Company as
Trustee for GMAM Group Pension Trust I
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: CSO
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
XXXXXXXXX MODENA CLO, LTD.
By: Xxxxxxxxx Capital Partners, LLC
as its Asset Manager
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Managing Partner
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Windsor Loan Funding, Limited
By: Xxxxxxxxx Capital Partners, LLC
as its Investment Manager
By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Managing Partner
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
STONE TOWER CLO II LTD.
By: Stone Tower Debt Advisors LLC, as
its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
CELEBRITY CLO LIMITED
By: TCW Advisors, Inc., As Agent
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ G. Xxxxxx Xxxxx
------------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
FIRST 2004-I CLO, LTD.
By: TCW Advisors, Inc., its
Collateral Manager
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ G. Xxxxxx Xxxxx
--------------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
FIRST 2004-II CLO, LTD.
By: TCW Advisors, Inc., its
Collateral Manager
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ G. Xxxxxx Xxxxx
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
TCW SELECT LOAN FUND, LIMITED
By: TCW Advisors, Inc., its Collateral
Manager
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
--------------------------------
Title: Managing Director
By: /s/ G. Xxxxxx Xxxxx
-------------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
VELOCITY CLO, LTD.
By: TCW Advisors, Inc., its Collateral
Manager
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ G. Xxxxxx Xxxxx
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
XXX XXXXXX
SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Executive Director
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
XXX XXXXXX
SENIOR LOAN FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Executive Director
Schedule A
[to be attached]
Schedule B
[to be attached]
Exhibit I-1
FORM OF VISX ACQUISITION
DATE CERTIFICATE
Date: ________, 2005
To: Bank of America, N.A., as Administrative Agent
and the Lenders
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Credit
Agreement, dated as of June 25, 2004 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among Advanced Medical Optics, Inc., a Delaware corporation (the "Borrower"),
the Guarantors from time to time party thereto, the Lenders from time to time
party thereto and Bank of America, N.A., as Administrative Agent for such
Lenders and as Foreign Currency Fronting Lender, Swing Line Lender and L/C
Issuer.
The Borrower hereby represents that: (i) the VISX Acquisition has
been consummated on the date hereof in compliance in all material respects
with applicable law; (ii) no approval, consent, exemption, authorization, or
other action by, or notice to, or filing with, any Person or any Governmental
Authority that has not been obtained and is in full force and effect as of the
date hereof is necessary or required in connection with the consummation of
the VISX Acquisition; and (iii) the VISX Acquisition has been consummated on
the date hereof in accordance in all material respects with the VISX
Acquisition Documents.
The Borrower hereby represents and warrants that each of the
representations and warranties of the Borrower and each other Loan Party
contained in Sections 6.08(a), 6.08(b), 6.08(c), 6.13, 6.17 and 6.25 are true
and correct on and as of the date hereof after giving effect to the amended
Schedules 6.08(a), 6.08(b), 6.08(c), 6.13, 6.17 and 6.25 attached hereto and
the amendments contained in the First Amendment.
The Borrower hereby represents that the portion of the purchase price
for the VISX Acquisition paid in cash does not exceed $185 million.
ADVANCED MEDICAL OPTICS, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
