To: Bausch & Lomb B.V. (the Company) Koolhovenlaan 110 The Netherlands Attn: Financial Controller Fax: +31 20 6554 651
Exhibit
(10)-bb
To: Bausch
& Lomb B.V. (the Company)
Xxxxxxxxxxxxx
000
0000
XX
Xxxxxxxx-Xxxx
The
Netherlands
Attn: Financial
Controller
Fax: x00
00
0000 000
Monday,
February 20, 2006
Dear
Sirs,
US$375,000,000
credit agreement (the
Agreement)
dated 29 November 2005 between (among others) the Company, the Guarantor and
Citibank International plc as facility agent
| 1. |
Background
|
| (a) |
This
letter is supplemental to and amends the
Agreement.
|
| (b) |
Pursuant
to Clause 25 (Amendments and Waivers) of the Agreement, the Majority
Lenders have consented to the amendments to the Agreement contemplated
by
this letter. Accordingly, we are authorised to execute this letter
on
behalf of the Finance Parties.
|
| 2. |
Interpretation
|
| (a) |
Capitalised
terms defined in the Agreement have the same meaning when used in this
letter unless expressly defined in this
letter.
|
| (b) |
The
provisions of Clause 1.2 (Construction) of the Agreement apply to this
letter as though they were set out in full in this letter except that
references to the Agreement are to be construed as references to this
letter.
|
| (c) |
Effective
Date
means the date on which the Facility Agent gives notification to the
Obligors that it has received a copy of this letter countersigned by
the
Company and the Guarantor; provided that the Facility Agent must provide
such notification as soon as reasonably practicable but no later than
one
(1) business day after the Facility Agent has received a copy of the
fully
countersigned letter.
|
3. Amendments
| (a) |
Subject
to subparagraph (b) below, the Agreement will be amended from the
Effective Date in accordance with subparagraph (c)
below.
|
| (b) |
The
Agreement will not be amended by this letter unless the Facility Agent
has
received a copy of this letter countersigned by the Company and the
Guarantor.
|
| (c) |
The
Agreement will be amended as follows:
|
| (i) |
Clause
19.11(a)(ii) (BLIO Matters) of the Agreement will be amended by deleting
the reference to “1 March” in the last line thereof and replacing it with
“31 May”;
|
| (ii) |
the
definition of BLIO
Announcements
in
Clause 19.11(b) of the Agreement shall be amended
by:
|
| (A) |
deleting
“and” at the end of subparagraph (i);
|
| (B) |
deleting
subparagraph (ii) and replacing it with the
following:
|
|
“(ii)
filings
with the SEC on Form 8-K dated 27 October, 2005, 29 November, 2005
and 22
December, 2005 and on Form 12(b)-25 dated 3 November,
2005,”;
|
| (C) |
deleting
the full stop after the words “Guarantor's related investigation" and
replacing it with a semi-colon; and
|
| (D) |
inserting
new subparagraphs (iii) and (iv) as
follows:
|
|
“(iii)
press
release dated 22 December, 2005 relating to the Guarantor’s Subsidiary,
Bausch & Lomb Korea Co. Ltd. (BL
Korea),
and the Guarantor’s related investigation;
and
|
|
(iv)
press
release dated 26 January, 2006 relating to the Guarantor’s expected
reporting of preliminary 2005 fourth quarter results and 2005 full
year
results in March 2006, and the Guarantor’s related investigation.”;
|
| (E) |
the
definition of BLIO
Matters
in
Clause 19.11(b) of the Agreement shall be deleted in its entirety and
replaced with the following:
|
“BLIO
Matters
means
the events including, without limitation, the allegations of improper
management, improper accounting and unpaid taxes of BLIO, and improper sales
practices at BL Korea, and the Guarantor’s related investigations, which have
resulted, or may result, in the need for the Guarantor to:
|
(i)
delay
delivery of its financial statements to the Facility Agent under this
Agreement;
|
(ii)
delay
certain of its filings with the SEC; and
|
(iii)
restate
its financial statements for prior periods, and that such a restatement,
if necessary, will also require unrelated out-of-period entries made
in
prior periods to be reclassified to the appropriate prior period.”;
and
|
| (F) |
the
definition of Waiver
Termination Date
in
Clause 19.11(b) of the Agreement shall be deleted in its entirety and
replaced with the following:
|
“Waiver
Termination Date
means
the earlier of:
(i)
6.00
p.m.
(Rochester, New York time) on 31 May, 2006;
|
(ii)
the
date on which the Guarantor delivers the certificate required under
Clause
17.10(a)(iii) (Reporting requirements) of the Agreement confirming,
inter
alia, compliance with the terms of the Agreement, together with the
filing
of the Guarantor’s 2005 annual report on Form 10-K;
|
|
(iii)
the
date (if any) on which holders of any Debt owed by the Guarantor or
any of
its Subsidiaries in a principal or notional amount of at least
US$50,000,000 shall accelerate or give notice of acceleration of such
Debt; and
|
|
|
(iv)
3 April, 2006, but only in the event that the Guarantor fails to
file its
2005 annual report on Form 10-K on or before 6.00 p.m. (Rochester,
New
York time) on 31 March, 2006 and has failed to pay the fee set out
in the
Fee Letter dated 17 February 2006”.
|
| 3. |
Further
Waiver
|
The
Guarantor’s 2005 annual report on Form 10-K will contain financial statements
for 2005 and restated financial statements for certain prior periods, including
but not limited to the Guarantor’s 2004 fiscal year. Accordingly, in addition to
the BLIO Matters not resulting in or constituting a breach of the Agreement
or
Event of Default during the Waiver Period, as set forth in Clause 19.11(a),
the
Majority Lenders further agree,
upon
the filing of that annual report on Form 10-K, in accordance with the terms
of
this letter, that any representation under Clause 16.6 (Financial statements)
of
the Agreement which is incorrect in any material respect, or any Event of
Default arising therefrom shall be permanently and irrevocably waived, to the
extent related to the matters described in the BLIO Announcements.
| 4. |
Guarantee
|
The
Guarantor:
| (a) |
agrees
to the amendment of the Agreement as contemplated by this letter;
and
|
| (b) |
with
effect from the Effective Date, confirms that the guarantee given by
it
under the Agreement will:
|
| (i) |
continue
in full force and effect; and
|
| (ii) |
extend
to the liabilities and obligations of the Company to the Finance Parties
under the Finance Documents as amended by this
letter.
|
| 5. |
Amendment
fee
|
| (a) |
In
the event that the Guarantor has not filed its 2005 annual report on
Form
10-K by 31 March, 2006 at 6.00 p.m. (Rochester, New York time), the
Company must pay to the Facility Agent for the account of the Lenders
which consented on or before 17 February, 2006 to the amendments to
the
Agreement contemplated by this letter (the Consenting
Lenders)
a
one-time fee equal to 0.05 per cent. of the total Commitments of the
Consenting Lenders. Such fee shall be payable no later than 3 April,
2006,
to the account notified to the Company by the Facility Agent for this
purpose. The Facility Agent shall provide the Obligors with a listing
of
the Consenting Lenders by 20 February, 2006.
|
| (b) |
All
amounts payable under this letter are exclusive of any value added
tax or
other taxes of any nature and will not be subject to counterclaim or
set-off for, or be otherwise affected by, any claim or dispute relating
to
any matter whatsoever and all such payments shall be made free and
clear
and without deduction for or on account of any present or future taxes,
charges, deductions or withholdings.
|
| 6. |
Miscellaneous
|
| (a) |
This
letter is a Finance Document and a Fee
Letter.
|
| (b) |
From
the Effective Date, the Agreement and this letter will be read and
construed as one document.
|
| (c) |
Except
as otherwise provided in this letter, the Finance Documents remain
in full
force and effect.
|
| (d) |
Except
to the extent expressly waived in this letter, no waiver of any provision
of any Finance Document is given by the terms of this letter and the
Finance Parties expressly reserve all their rights and remedies in
respect
of any breach of, or other Default under, the Finance
Documents.
|
| 7. |
Governing
law
|
This
letter is governed by English law.
/s/
Xxxxxxxxxxxx Xxxx /s/
Xxxx
Xxxxxx
For
CITIBANK
INTERNATIONAL PLC
as
Facility Agent for and on behalf of the Finance Parties
We
agree
with the terms of this letter.
/s/
Xxxxxx Xxxxxx
For
XXXXXX
& LOMB B.V.
Date: February
24, 2006
/s/Xxxxxxx
X. XxXxxxxx
For
BAUSCH
& LOMB INCORPORATED
Date: February
24, 2006
