Exhibit 10.40
EXECUTION COPY
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT dated as of June 7, 2002, to the Amended and Restated Credit
Agreement dated as of March 24, 1998 and amended as of December 8, 2000,
amending and restating the Credit Agreement dated as of May 10, 1996 and amended
as of March 5, 1998 (the "Credit Agreement") among ALLERGAN, INC. (the
"Company"), the ELIGIBLE SUBSIDIARIES referred to therein, the BANKS party
thereto, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Co-Agent and
JPMORGAN CHASE BANK, as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto desire (i) to amend the Minimum Consolidated
Net Worth Covenant in the Credit Agreement to reset the required amount to
adjust for the effect of the spin-off of the Company's ophthalmic surgical and
contact lens care businesses to launch an independent company called Advanced
Medical Optics, Inc. by means of a pro rata distribution to the Company's
stockholders of shares of a newly formed holding company (the "AMO Spin-off"),
(ii) to waive the application of Section 5.11 of the Credit Agreement to the
AMO Spin-off and (iii) to waive on a temporary basis compliance with Sections
5.07 and 5.08 of the Credit Agreement in connection with the AMO Spin-off;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Credit Agreement has the
meaning assigned to such term in the Credit Agreement. Each reference to "hereof
", "hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Credit Agreement shall, after this Amendment becomes effective, refer to the
Credit Agreement as amended hereby.
SECTION 2. Definitions. The following new definition is added to Section
1.01 of the Credit Agreement in its appropriate alphabetical position:
"AMO Spin-off" means the spin-off of the Company's ophthalmic surgical
and contact lens care businesses to launch an independent company called
Advanced Medical Optics, Inc. by means of a pro rata
distribution to the Company's stockholders of shares of a newly formed
holding company.
SECTION 3. Limited Waiver. (a) During the period this waiver remains in
effect in accordance with subsection (b) below, the Required Banks hereby waive
compliance by the Company with Sections 5.07 and 5.08 of the Credit Agreement,
and any Default by reason of a failure to comply therewith, but solely to the
extent that any failure to comply therewith is attributable to the incurrence in
anticipation of the AMO Spin-off by one or more Subsidiaries of the Company
(which Subsidiaries will cease to be Subsidiaries of the Company upon
consummation of the AMO Spin-off) of not more than $300,000,000 aggregate
principal amount of Debt or arises from the guarantee by the Company of such
Subsidiaries' obligations in connection with such Debt.
(b) The waiver pursuant to subsection (a) shall terminate, on, and shall be
of no force and effect after, the date which is the earlier of (i) the date of
consummation of the AMO Spin-off and (ii) September 30, 2002.
SECTION 4. Minimum Consolidated Net Worth. Effective immediately upon
consummation of the AMO Spin-off, Section 5.09 of the Credit Agreement is
amended to read as follows:
"SECTION 5.09. Minimum Consolidated Net Worth. Consolidated Net Worth
will at no time be less than the greater of (i) $400,000,000 and (ii) an
amount equal to 80% of the Consolidated Net Worth of the Company based upon
the first publicly available consolidated balance sheet of the Company and
its Consolidated Subsidiaries which reflects consummation of the AMO
Spin-off (the "Spin-off Balance Sheet"); provided that the foregoing amount
shall be:
(i) increased at the end of each of the Company's fiscal years
ending after the date of the Spin-off Balance Sheet, by 50% of
Consolidated Net Income (if positive) for such fiscal year (or, in the
case of the fiscal year in which the AMO Spin-Off is consummated, the
portion of such fiscal year subsequent to the date of the Spin-Off
Balance Sheet); and
(ii) increased by 100% of the amount by which Consolidated Net
Worth is increased from time to time after the date of the Spin-off
Balance Sheet as a result of the issuance or sale of the Company's
capital stock."
SECTION 5. Consolidations, Mergers and Sales of Assets. Section 5.11 of
the Credit Agreement shall not apply to the AMO Spin-off.
2
SECTION 6. Representations of Company. The Company represents and warrants
that (i) the representations and warranties of the Company set forth in Article
4 of the Credit Agreement will be true on and as of the Amendment Effective Date
(as defined below) and (ii) no Default will have occurred and be continuing on
the Amendment Effective Date.
SECTION 7. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 8. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 9. Effectiveness. (a) This Amendment shall become effective as of
the date hereof on the date (the "Amendment Effective Date") when the Agent
shall have received from each of the Company and the Required Banks a
counterpart hereof signed by such party or facsimile or other written
confirmation (in form satisfactory to the Agent) that such party has signed a
counterpart hereof.
(b) Except as expressly set forth herein, the waivers set forth in Sections
3 and 5 herein shall not constitute a waiver or amendment of any term or
condition of the Credit Agreement, and all such terms and conditions shall
remain in full force and effect and are hereby ratified and confirmed in all
respects.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
ALLERGAN, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Tit1e: Sr. V.P., Treasury, Risk & Investor Relations
By: /s/ Xxxx Prem
-------------------------------
Name: Xxxx Prem
Title: Assistant Treasurer
JPMORGAN CHASE BANK
By: _______________________________
Name:
Title:
BANK OF AMERICA, N.A.
By: _______________________________
Name:
Title:
CITICORP USA, INC.
By: _______________________________
Name:
Title:
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
ALLERGAN, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
JPMORGAN CHASE BANK
By: /s/ XXXX XXX XXX
-------------------------------
Name: XXXX XXX XXX
Title: VICE PRESIDENT
BANK OF AMERICA, N.A.
By: _______________________________
Name:
Title:
CITICORP USA, INC.
By: _______________________________
Name:
Title:
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
ALLERGAN, INC.
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
JPMORGAN CHASE BANK
By: ______________________________
Name:
Title:
BANK OF AMERICA, N.A.
By: /s/ XXXXXX X. XXXXX
-------------------------------
Name: XXXXXX X. XXXXX
Title: PRINCIPAL
CITICORP USA, INC.
By: _______________________________
Name:
Title:
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
ALLERGAN, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
JPMORGAN CHASE BANK
By: _______________________________
Name:
Title:
BANK OF AMERICA, N.A.
By: _______________________________
Name:
Title:
CITICORP USA, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice-President
4
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Credit Officer
BANK ONE, N.A.
By: _______________________________
Name:
Title:
MELLON BANK, N.A.
By: _______________________________
Name:
Title:
MIZUHO CORPORATE BANK, LTD.
By: _______________________________
Name:
Title:
UFJ BANK LIMITED
By: _______________________________
Name:
Title:
5
ABN AMRO BANK N.V.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
BANK ONE, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
MELLON BANK, N.A.
By: _______________________________
Name:
Title:
MIZUHO CORPORATE BANK, LTD.
By: _______________________________
Name:
Title:
UFJ BANK LIMITED
By: _______________________________
Name:
Title:
5
ABN AMRO BANK N.V.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
BANK ONE, N.A.
By: _______________________________
Name:
Title:
MELLON BANK. N.A.
By: /s/ XXXX XXXX
-------------------------------
Name: XXXX XXXX
Title: VICE PRESIDENT
MIZUHO CORPORATE BANK, LTD.
By: _______________________________
Name:
Title:
5
ABN AMRO BANK N.V.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
BANK ONE,N.A.
By: _______________________________
Name:
Title:
MELLON BANK, N.A.
By: _______________________________
Name:
Title:
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Sr. Vice President & G.H.
UFJ BANK LIMITED
By: _______________________________
Name:
Title:
5
