LETTER WAIVER
Exhibit
(10)-z
EXECUTION
COPY
Dated
as
of November 23, 2005
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 Borrower's (1) press releases, dated October 26, 2005 and
November 3, 2005, and (2) filings with the U.S. Securities and Exchange
Commission on Form 8-K, dated October 27, 2005, and on Form 12(b)-25, dated
November 3, 2005, related to its subsidiary, BL Industria Otica, Ltda
("BLIO")
and
the Borrower's related investigation (collectively the "BLIO
Announcements").
The
events include, without limitation, allegations of improper management, improper
accounting and unpaid taxes of BLIO, which may result in the need for the
Borrower to
delay
delivery of its financial statements to you under the Credit Agreement, delay
certain of its filings with the Securities and Exchange Commission and
to
restate its financial statements for prior periods, and that such a restatement,
if necessary, would also require that out-of-period entries made in prior
periods, unrelated to the BLIO 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 BLIO 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 reductions
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, the extent that such delay does not
extend
beyond March 1, 2006 (the
"Waived
BLIO Matters").
We
hereby
request that you evidence your agreement to waive, solely for the period
commencing on the date first above written through Waiver Termination Date
(as
defined below), solely with respect to Waived BLIO Matters, any breach of
the
Credit Agreement (including, without limitation, any misrepresentation, any
breach of covenant and any Event of Default) by execution of this Letter
Waiver.
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 hereunder 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
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.
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 by us 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
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 Waived BLIO matters, nothing in this Letter Waiver shall
constitute an admission (1) of liability with respect to the Waived BLIO
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 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
Agreed
as
of the date first above written:
CITIBANK,
NA.,
as
Agent
and as Lender
By
/s/
Xxxxxx X. Xxxx
Title:
Managing Director
KEYBANK
NATIONAL ASSOCIATION
By
/s/
Xxxxxxxx X. Xxxx
Title:
Vice President
BARCLAYS
BANK PLC
By____________________________
Title:
THE
BANK
OF TOKYO-MITSUBISHI TRUST
COMPANY
By
/s/
Xxxxxx Xxxxxxx
Title:
Assistant Vice President
JPMORGAN
CHASE BANK, N.A.
By
/s/
Xxxxx Xxxxx
Title:
Vice President
MIZUHO
CORPORATE BANK, LTD.
By
/s/
Xxxxxxx Xxxxxxx
Title:
General Manager
U.S.
BANK
NATIONAL ASSOCIATION
By
/s/
Xxxxx Xxxxxxxxxxx
Title:
Vice President
ALLIED
IRISH BANKS, P.L.C.
By
/s/
Xxxxxxxx Xxxxxx /s/
Xxxxxxx X’Xxxxxx
Title:
Director Title:
Senior Vice
President
HSBC
BANK
USA, NATIONAL ASSOCIATION
By
/s/
Xxxx Xxxxxxx
Title:
Vice President
THE
NORTHERN TRUST COMPANY
By
/s/
Xxxxxx X. Xxxxxxx
Title:
Vice President
