LETTER WAIVER
Exhibit
(10)-aa
Dated
as
of February 17, 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. Capitalized terms not otherwise defined in this
Letter
Waiver have the same meanings as specified in the Credit Agreement.
Reference
is made to the Borrow's (1) press releases, dated October 26, 2005 and November
3, 2005, and (2) filings with the U.S. Securities and Exchange Commision
on Form
8-K, dated October 27, 2005, November 29, 2005 and December 22, 2005, and
on
Form 12(b)-25, dated November 3, 2005, related to its subsidiary, BL Industria
Otica, Ltda ("BLIO"),
(3)
press release dated December 22, 2005, related to its subsidiary Bausch &
Lomb Korea Co. Ltd. ("BL
Korea"),
press
release dated January 26, 2006 related to the Borrower's expected reporting
of
preliminary 2005 fourth quarer results and 2005 full year results in March
2006
and the Borrower's related investigations (collectively the "Announcements").
The
events, include, without limitation, allegations of improper management,
improper accounting and unpaid taxes of BLIO, and improper sales practices
at BL
Korea, and have resulted in the need for the Borrower to delay delivery of
its
2005 fourth quarter and 2005 full year financial statements to you under
the
Credit Agreement, have resulted in the delay of certain of the Borrower's
filings with the Securities and Exchange Commission and will require the
Borrower to restate its financial statements for prior periods, and that
such a
restatement will also require that out-of-period entries made in prior periods,
unrelated to the BLIO or BL Korea events, be reclassified to the appropriate
prior period. The Borrower has requested, and the Required Lenders have agreed,
to waive the impact of the matters described in the Announcements, including,
without limitation, the impact of the events described in the foregoing
sentence, to the extent that any restatements of the Borrower's financial
statements for prior financial periods do not result in redutions in profits
after tax of the Borrower of more than $50,000,000 in aggregate and, with
respect to the delay in delivery of the financial statements required to
be
delivered under the Credit Agreement, to the extent that any delay in delivery
or filing does not extend beyond May 31, 2006 (the "Waived
Matters").
Your
execution of this Letter Waiver evidences your agreement to waive, solely
for
the period commencing on July 26, 2005 through the Waiver Termination Date
(as
defined below), and solely with respect to Waived Matters, any breach of
the
Credit Agreement (including, without limitation, any misrepresentation or
any
breach of covenant) or any Event or Default that may arise
therefrom.
On
the
Waiver Termination Date, without any further action by the Agent and the
Lenders, all of the terms and provisions set forth in the Credit Agreement
with
respect to Defaults thereunder that are waived under the immediately preceding
paragraph and not cured prior to the Waiver Termination Date shall have the
same
force and effect as if this Letter Waiver had not been entered into by the
parties hereto, and the Agent and the Lenders shall have all of the rights
and
remedies afforded to them under the Credit Agreement with respect to any
such
Defaults as though no waiver had been granted by them hereunder. The
"Waiver
Termination Date"
is the
earliest of (a) May 31, 2006 (6:00 p.m. (Rochester, New York time)), (b)
the
Borrower's delivery of the management certification required under the Credit
Agreement confirming compliance with the terms of the Credit Agreement (as
modified by this Letter Waiver and incorporating all waivers granted hereunder)
together with the filing of the Borrower's 2005 Annual Report on Form 10-K
(the
"2005
10-K"),
(c)
the date, if any, that holders of any Debt outstanding in a principal or
notional amount of at least $50,000,000 shall accelerate or give notice of
acceleration of such Debt and (d) April 3, 2006, but only if (x) the Borrower
fails to file its 2005 10-K on or prior to March 31, 2006 (by 6:00 p.m.
Rochester, New York time) and
(y)
the
Borrower has failed to pay to the Agent, for the ratable account for the
Lenders, the one-time fee equal to 0.05% of the aggregate commitments as
described below.
The
2005
10-K will contain financial statements for 2005 and restated financial
statements for certain prior periods. Accordingly, in addition to the waiver
granted above, your execution of this Letter Waiver evidences (a) your agreement
to permanently and irrevocably waive the reporting requirements of Section
5.01(h)(i) and (ii) of the Credit Agreement for 2005 and those portions of
2006
prior to the filing of the 2005 10-K and (b) your acknowledgement that the
Borrower's filing of the 2005 10-K will satisfy Borrower's reporting
requirements under, and constitutes the timely delivery of such reports required
under, Section 5.01(h)(i) and (ii) of the Credit Agreement for the period
from
July 26, 2005 through the date the 2005 10-K is filed. In addition, since
the
2005 10-K will contain restate financial statements for certain prior periods,
including but not limited to the Borrower's 2004 fiscal year, upon the filing
of
that annual report, you agree to permanently and irrevocably waive any
misrepresentation of Section 4.01(e) of the Credit Agreement, or any Event
of
Default arising therefrom, to the extent related to the matters described
in the
Announcements.
As
further consideration for this Letter Waiver, in the event that the
Borrower
has not filed the 2005 10-K by March 31, 2006 at 6:00 p.m. (Rochester, New
York
time), the
Borrower
will agree to pay a one-time fee equal to 0.05% of their aggregate commitments
to each Lender that has executed this Letter Waiver. Payment of such amounts
will be due on April 3, 2006.
This
Letter Waiver shall become effective as of the date first above written when,
and only when, the Agent shall have received counterparts of this Letter
Waiver
executed on behalf of the 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. The effectiveness of this Letter Waiver is conditioned upon
the
accuracy of the factual matters described herein in all material respects.
This
Letter Waiver is subject to the provisions of Section 8.01 of the Credit
Agreement.
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
effectieness 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 Waived matters, nothing in this Letter Waiver shall constitute
an
admission (1) of liability with respect to the Waived matters, (2) that a
breach
of any representation, warranty, covenant or other provisions of the Credit
Agreement has occurred or (3) that an 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
Title:
Vice President & Treasurer
Signed:
February 24, 2006
Agreed
as
of the date first above written:
CITIBANK,
NA.,
as
Agent
and as Lender
By__/s/
Xxxxxx X. Kane____________
Title:
Vice President and Managing Director
KEYBANK
NATIONAL ASSOCIATION
By__/s/
Xxxxxxxx X. Meil__________
Title:
Vice President
BARCLAYS
BANK PLC
By__/s/
Xxxxx Barton______________
Title:
Associate Director
THE
BANK
OF TOKYO-MITSUBISHI TRUST
COMPANY
By___/s/
Xxxxxx Xxxxxxx __________
Title:
Assistant Vice President
JPMORGAN
CHASE BANK, N.A.
By__/s/
Xxxxx Yoder______________
Title:
Vice President
MIZUHO
CORPORATE BANK, LTD.
By___/s/
Xxxxxxx Ventura__________
Title:
Deputy General Manager
U.S.
BANK
NATIONAL ASSOCIATION
By___/s/
Xxxx Cosgrove___________
Title:
Assistant Vice President
ALLIED
IRISH BANKS, P.L.C.
By___/s/
Germain Reusch________ By___/s/
Xxxxxx Magyer________
Title:
Director Title:
Vice President
HSBC
BANK
USA, NATIONAL ASSOCIATION
By___/s/
Xxxx Carrol_____________
Title:
Vice President
THE
NORTHERN TRUST COMPANY
By
/s/
Xxxxxx X. Xxxxxxx
Title:
Vice President
