LETTER WAIVER
Exhibit
(10)-qq
Dated
as
of January 26, 2007
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 (the “First Letter Waiver”), February 17, 2006 (the
“Second Letter Waiver”), May 15, 2006 (the “Third Letter Waiver”), August 23,
2006 (the “Fourth Letter Waiver”) and December 8, 2006 (effective December 15,
2006 and referred to herein as the “Fifth Letter Waiver” and collectively, with
the First Letter Waiver, the Second Letter Waiver, the Third Letter Waiver
and
the Forth Letter Waiver, the “Waivers”). Capitalized terms not otherwise defined
in this Letter Waiver have the same meanings as specified in the Credit
Agreement and the Waivers.
Reference
is made to each of Borrower’s Announcements and the events described under the
prior Waivers, and the prior definitions of Announcements are amended hereby
to
include Borrower’s Current Report on Form 8-K, filed December 21, 2006 (grant of
second additional trading period from New York Stock Exchange (the “NYSE”) and
compliance with certain NYSE corporate governance disclosure
requirements).
In
light
of these events described in the Announcements, and other confidential
information which Borrower has disclosed to Agent and Lenders orally 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 that the term “Waiver
Termination Date” as
defined in the Waivers is superseded and is hereby defined for all purposes
as
the earlier of (i) April 30, 2007 or (ii) the effective date of any Form 25
to
strike Borrower's securities from listing filed by the NYSE with the U.S.
Securities and Exchange Commission as a result of Borrower's failure to file
its
2005 10-K within additional trading periods granted by the NYSE.
The
terms of the Third Letter Waiver, the Fourth Letter Waiver and the Fifth Letter
Waiver shall remain in full force and effect, as modified by this Letter Waiver,
including, without limitation, paragraphs (and any subparagraphs) three and
five
of the Third Letter Waiver; provided,
however,
that
the sixth paragraph of the Third Letter Waiver shall be deleted in its entirety
and replaced with the following:
“In
addition to the foregoing:
(i)
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(a) (as related
to filings required by the Trust Indenture Act of 1939 (the “TIA”) for fiscal
years 2004 and 2005), 5.01(f) or 5.01(h) of the Credit Agreement with respect
to
periods covered 2005 10-K; and
(ii) when
filed with the SEC, Borrower’s 2006 Annual Report on Form 10-K (“2006 10-K”)
will contain the selected quarterly financial information for fiscal year 2006.
In addition to the waiver granted above, automatically and without further
action by the parties hereto, upon the filing by Borrower of the 2006 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(k) of the
Credit Agreement and any breach of Borrower’s covenants and agreements set forth
in Sections 5.01(a) (as related to filings required by the TIA for fiscal year
2006), 5.01(f) or 5.01(h) of the Credit Agreement with respect to periods
covered by the 2006 10-K.”
In
addition, the Required Lenders hereby agree to amend Section 6.01(d) of the
Credit Agreement to delete the figure “$50,000,000” and substitute therefor the
figure “$70,000,000”.
The
amount of the Monthly Fee, as defined in paragraph seven of the Third Letter
Waiver, shall remain as set forth therein. However, payment of the Monthly
Fee
will be
made on February 1, 2007, March 1, 2007 and April 2, 2007; provided, however,
in
the event Borrower files its 2006 Form 10-K on or before February 28, 2007,
then
it will have no obligation to make the March and April payments, and if the
Borrower files its 2006 Form 10-K on or before March 31, 2007, then it will
have
no obligation to make the April payment.
This
Letter Waiver shall become effective as of January 31, 2007 if, as of that
date,
the Agent has 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.
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.
The
Waivers, as modified by each other and this Letter Waiver, shall represent
the
entire agreement with respect to the matters contained herein and, except where
otherwise noted herein or therein, 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 or other electronic means 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
Xxxxxx
Xxxxxx
Vice
President and Treasurer
Agreed
as
of the date first above written:
CITIBANK,
NA.,
as
Agent
and as Lender
By
/s/
Xxx Xxxx
Name:
Xxx
Xxxx
Title:
Managing Director
KEYBANK
NATIONAL ASSOCIATION
By
/s/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Senior Vice President
BARCLAYS
BANK PLC
By
/s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Associate Director
BANK
OF
TOKYO-MITSUBISHI UFJ TRUST
COMPANY
(f/k/a Bank of Tokyo-Mitsubishi Trust
Company)
By
/s/
Xxxxxx Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Assistant Vice President
JPMORGAN
CHASE BANK, N.A.
By
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Vice Preisdent
MIZUHO
CORPORATE BANK, LTD.
By
/s
Xxxxxxx Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Deputy General Manager
U.S.
BANK
NATIONAL ASSOCIATION
By
/s/
Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
Assistant Vice President
ALLIED
IRISH BANKS, P.L.C.
By
/s/
Xxxxxxxx Xxxxxx
Name:
Xxxxxxxx Xxxxxx
Title:
Director
By
/s/
Xxxxxxx X’Xxxxxx
Name:
Xxxxxxx X’Xxxxxx
Title:
Senior Vice President
HSBC
BANK
USA, NATIONAL ASSOCIATION
By
/s/
Xxxx Xxxxxxx
Name:
Xxxx Xxxxxx
Title:
First Vice President
THE
NORTHERN TRUST COMPANY
By
/s/
Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Second Vice President
