LETTER WAIVER
Exhibit
(10)-cc
Dated
as
of May 15, 2006
To
the
banks, financial institutions
and
other
institutional lenders
(collectively,
the "Lenders")
parties
to the Credit Agreement
referred
to below and to Citibank, N.A.,
as
agent
(the "Agent") for the Lenders
Ladies
and Gentlemen:
We
refer
to the Five Year Credit Agreement dated as of July 26, 2005 (the "Credit
Agreement") among the undersigned and you, and the letter waivers thereunder
dated November 23, 2005 (referred to herein as the “First Letter Waiver”) and
February 17, 2006 (effective February 24, 2006 and referred to herein as the
“Second Letter Waiver”). Capitalized terms not otherwise defined in this Letter
Waiver have the same meanings as specified in the Credit Agreement, the First
Letter Waiver and the Second Letter Waiver.
Reference
is made to each of Borrower’s Announcements and the events described thereunder,
and the prior definitions of Announcements are amended hereby to include
Borrower’s: (i) press releases dated March 17, 2006, March 31, 2006, April 10,
2006, April 13, 2006 and May 15, 2006 and (ii) Borrower’s filings with the U.S.
Securities and Exchange Commission on Forms 12(b)-25, dated March 17, 2006
and
May 11, 2006, and on Forms 8-K, dated April 12, 2006, April 14, 2006, May 4,
2006, May 8, 2006 and May 15, 2006.
In
light
of these events described in the Announcements, and other confidential
information which Borrower disclosed to Agent and Lenders verbally and in
writing prior to the date hereof under the terms of confidentiality agreements
executed with each Lender (the “Confidential Disclosures”), Borrower has
requested, and the Required Lenders hereby agree:
(i)
to
waive, for the period from July 26, 2005 through the Waiver Termination Date
(as
defined below), any Default that may have been caused by the breach of a
representation or warranty or failure to perform any covenant under the
following Sections of the Credit Agreement: 4.01(e), 4.01(f), 4.01(k), 4.01(m),
5.01(a), 5.01(b), 5.01(f), 5.01(h)(i)-(ii), 5.01(h)(v), by reason of the events
or circumstances described in the Announcements and Confidential Disclosures,
provided,
however,
that
the waivers set forth in this clause (i) extend to matters related to BL
Industria Otica, Ltda and Bausch & Lomb Korea Co. Ltd. described in the
Announcements and Confidential Disclosures only to the extent that the impact
of
those matters do not result in reductions in profits after tax of Borrower
of
more than $50,000,000 in the aggregate;
(ii)
that, prior to the Waiver Termination Date, Borrower’s non-performance of the
covenants set forth in Section 5.01(h)(i) or (ii) by reason of the circumstances
or events described in the Announcements and Confidential Disclosures shall
not
create or constitute a Default or an Event of Default under the Credit
Agreement, and that no repayment of an Advance will be accelerated (as may
be
permitted under Section 6.01 of the Credit Agreement) as a result of any such
non-performance, and that Borrower’s filing of its Form 10-K Annual Report for
the fiscal year ended December 31, 2005 (the “2005 10-K”) prior to the Waiver
Termination Date shall cure in their entirety any such non-performance;
and
(iii)
to
waive any Default which may otherwise arise in the event that Borrower receives
“Notice of Default” due to default of performance, or breach of, any covenant or
warranty by Borrower under Section 501(4) of its Indenture with Citibank, N.A.,
dated September 1, 1991, as supplemented and amended (the “Indenture”), so that
receipt of a “Notice of Default” under the Indentures does not and will not
constitute a Default or other failure by Borrower to satisfy the conditions
precedent for any Borrowing or for each Lender to make an Advance under Section
3.02 of the Credit Agreement.
The
Waiver Termination Date as defined in the First
Letter Waiver and Second Letter Waiver are superseded and the term "Waiver
Termination Date" is hereby defined for all purposes as October 2,
2006.
Notwithstanding
the foregoing, in the event that Borrower receives notice of an “Event of
Default” due to default of performance, or breach of, any covenant or warranty
by Borrower under Section 501(4) of its Indenture, Borrower will immediately
provide a copy of such notice to the Agent, and if: (a) Borrower fails to cure
the defaults specified in such notice of an “Event of Default” within the 60-day
period, (b) the Notice of Default has not been waived as provided in the
Indenture, and (c) the Trustee, or holders of not less than 25% of the principal
amount of outstanding securities under any series with an outstanding principal
amount of at least $50,000,000 under the Indenture, have given to Borrower
notice that the principal amount of such securities plus any accrued interest,
is due and payable immediately, then the Agent upon request of the Required
Lenders, or with the consent of the Required Lenders, may (i) declare the
obligation of each Lender to make Advances (other than Advances by an Issuing
Bank or a Lender pursuant to Section 2.03(c) of the Credit Agreement), and
of
the Issuing Banks to issue Letters of Credit to be terminated, and/or (ii)
provide Borrower with a written notice declaring the Advances, all interest
thereon and all other amounts payable under the Credit Agreement to be due
and
payable.
In
addition to the foregoing, when filed with the SEC, Borrower’s 2005 10-K will
contain restatements of prior period financial statements, including, without
limitation, for the fiscal year 2004 (the “Restatements”). In addition to the
waiver granted above, automatically and without further action by the parties
hereto, upon the filing by Borrower of the 2005 10-K, your execution of this
Letter Waiver evidences your permanent and irrevocable waiver of any
misrepresentation of the matters set forth in Sections 4.01(e) and 4.01(k)
of
the Credit Agreement and any breach of Borrower’s covenants and agreements set
forth in Sections 5.01(f) or 5.01(h) of the Credit Agreement with respect to
periods covered thereby.
As
further consideration for this Letter Waiver, Borrower hereby agrees to pay
a
fee equal to 0.10% of their aggregate commitments (the “Monthly Fee”) to each
Lender that has executed this Letter Waiver on or before the Effective Date,
as
hereinafter defined. Payment of the Monthly Fee will be due and payable on
June
1, 2006 and on the first of each month thereafter that Borrower is delayed
in
filing its financial statements prior to the Waiver Termination Date.
This
Letter Waiver shall become effective as of the date first above written when
the
Agent shall have received counterparts of this Letter Waiver executed on behalf
of Borrower and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Letter Waiver
(“Effective Date”).
The
Credit Agreement and the Notes, except to the extent of the waiver specifically
provided above, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed. The execution, delivery and
effectiveness of this Letter Waiver shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of any Lender or
the
Agent under the Credit Agreement, nor constitute a waiver of any provision
of
the Credit Agreement.
If
you
agree to the terms and provisions of this Letter Waiver, please evidence such
agreement by executing and returning at least two counterparts of this Letter
Waiver to Xxxxx Xxxxxx, Xxxxxxxx & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
With
respect to the matters waived hereunder, nothing in this Letter Waiver shall
constitute an admission (1) of liability with respect to such matters, (2)
that
a breach of any representation, warranty, covenant or other provisions of the
Credit Agreement has occurred, or (3) that any Default or Event of Default
has
occurred under the Credit Agreement.
This
Letter Waiver shall represent the entire agreement with respect to the matters
contained herein and shall supersede any prior agreements whether written or
oral. This Letter Waiver may be executed in any number of counterparts and
by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall
constitute one and the same agreement. Delivery of an executed counterpart
of a
signature page to this Letter Waiver by telecopier shall be effective as
delivery of a manually executed counterpart of this Letter Waiver.
This
Letter Waiver shall be governed by, and construed in accordance with, the laws
of the State of New York.
Very
truly yours,
BAUSCH
& LOMB INCORPORATED
By:
/s/
Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Vice President & Treasurer
Agreed
as
of the date first above written:
CITIBANK,
NA.,
as
Agent
and as Lender
By___/s/
Xxxxx Lowther___________
Title:
Vice President
KEYBANK
NATIONAL ASSOCIATION
By_
/s/
Xxxxxxxx X. Meil________
Title:
Senior Vice President
BARCLAYS
BANK PLC
By_/s/
Nicolas Bell_______________
Title:
Director
THE
BANK
OF TOKYO-MITSUBISHI TRUST
COMPANY
By___/s/
Xxxxxx Xxxxxxx __________
Title:
Assistant Vice President
JPMORGAN
CHASE BANK, N.A.
By__/s/
Xxxxxxxx X. Xxxxx __________
Title:
Senior Vice President
MIZUHO
CORPORATE BANK, LTD.
By___/s/
Xxxxxxx Ventura___ _____
Title:
Deputy General Manager
U.S.
BANK
NATIONAL ASSOCIATION
By___/s/
Xxxxx X. Roudebush______
Title:
ALLIED
IRISH BANKS, P.L.C.
By___/s/
Germain Reusch________ By___/s/
Xxxxxxx O’Reilly________
Title:
Director Title:
Senior Vice President
HSBC
BANK
USA, NATIONAL ASSOCIATION
By___/s/
Xxxx Carrol_____________
Title:
Vice President
THE
NORTHERN TRUST COMPANY
By____/s/
Alex Nicolov___________
Title:
Second-Vice President
