, dated as of
July __, 1998 (this "AGREEMENT"), between BAUSCH &
LOMB INCORPORATED, a New York corporation (the
"COMPANY"), and [XXXXXX XXXXXXX & CO. INCORPORATED]
[[UNION BANK OF SWITZERLAND AG, LONDON BRANCH]]
[[[X.X. XXXXXX SECURITIES INC.]]] (["XXXXXX XXXXXXX"]
[["UBS"]] [[["X.X. XXXXXX"]]]and, in its capacity as
the remarketing dealer hereunder, the "REMARKETING
DEALER") [[and WARBURG DILLON READ, LLC, ("WDR" and
in its capacity as calculation agent the "CALCULATION
AGENT")]].
The Company proposes to issue and sell its[ ___% Putable/Callable Notes
due ______ __, 2011] [[___% Putable/Callable Notes due ______ __, 2013]] [[[___%
Putable/Callable Notes due ______ __, 2025]]] (the "NOTES"), described in the
Prospectus Supplement, dated July __, 1998 (the "PROSPECTUS SUPPLEMENT"), to the
Prospectus (the "BASE PROSPECTUS"), dated February 13, 1998 included in the
registration statement on Form S-3 filed with the Securities and Exchange
Commission (the "COMMISSION") (Registration No.333-45223). The Notes are to be
issued pursuant to an indenture dated as of September 1, 1991 (as supplemented,
the "INDENTURE"), between the Company and Citibank, N.A., as Trustee, in an
aggregate principal amount of $100,000,000. The Notes will be issued and the
terms thereof established in accordance with the Indenture, the form of note
(the "FORM OF NOTE"), the Prospectus Supplement and the Base Prospectus. The
interest rate on the Notes will be ___% upon issuance and may be reset in
accordance with Section 4(d) and the Form of Note attached hereto as Appendix A.
Capitalized terms used but not defined herein shall have the same meanings as in
the Form of Note or the Indenture.
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
SECTION 1. Appointment of Remarketing Dealer. (a) The Company hereby
appoints [Xxxxxx Xxxxxxx] [[UBS]] [[[X.X. Xxxxxx]]] as the Remarketing Dealer
for the purpose of remarketing the Notes and calculating the Coupon Reset Rate
(as defined below).
(b) All acts taken by the Remarketing Dealer [[or the Calculation
Agent]] under this Agreement or in connection with the Notes, including the
calculation of the Coupon Reset Rate, shall be deemed to have been taken [[by
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each of]] by the Remarketing Dealer [[and the Calculation Agent]] solely in its
capacity as an agent acting on behalf of the Company under this Agreement and
shall not create or imply any obligation to, or any agency or trust relationship
with, any holder or beneficial owner of Notes.
SECTION 2. Representations and Warranties. (a) Each party represents
and warrants to the other party that:
(i) Status. It is duly organized and validly existing under
the laws of the jurisdiction of its organization or incorporation and,
if relevant under such laws, in good standing.
(ii) Powers. It has the power to execute, deliver and perform
its obligations under this Agreement and has taken all necessary action
to authorize such execution, delivery and performance.
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to it,
any provision of its constitutional documents, any order or judgment of
any court or other agency of government applicable to it or any of its
assets or any contractual restriction binding on or affecting it or any
of its assets.
(iv) Consents. All governmental and other consents that are
required to have been obtained by it with respect to this Agreement
have been obtained and are in full force and effect and all conditions
of any such consents have been complied with.
(v) Obligations Binding. Its obligations under this Agreement
constitute its legal, valid and binding obligations, enforceable in
accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity
or at law)).
(vi) Absence of Litigation There is not pending or, to its
knowledge, threatened against it or any of its Affiliates any action,
suit or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely
to affect the legality, validity or enforceability against it of this
Agreement or its ability to perform its obligations under this
Agreement.
(vii) Xxx-Xxxxxxxx.Xx is acting for its own account, and it had
made its own independent decisions to enter into this Agreement and as
to whether this Agreement is appropriate or proper for it based upon
its own judgment and upon advice from such advisers as it has deemed
necessary.
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It is not relying on any communication (written or oral) of the other
party as investment advice or as a recommendation to enter into this
Agreement; it being understood that information and explanations
related to the terms and conditions of this Agreement shall not be
considered investment advice or a recommendation to enter into this
Agreement. No communication (written or oral) received from the other
party shall be deemed to be an assurance or guarantee as to the
expected results of this Agreement.
(viii) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of this Agreement. It is also capable of
assuming, and assumes, the risks of this Agreement.
(ix) Status of Parties. The other party is not acting as a
fiduciary for or an adviser to it in respect of this Agreement.
(b) The Company represents and warrants to the Remarketing Dealer
that: no Event of Default under the Indenture has occurred and is continuing and
no such event or circumstance would occur as a result of its entering into or
performing its obligations under this Agreement.
SECTION 3. The Company hereby covenants with [Xxxxxx Xxxxxxx] [[UBS]]
[[[X.X. Xxxxxx]]] and the Remarketing Dealer as follows:
(a) Maintain Authorizations. The Company shall use all reasonable
efforts to maintain in full force and effect all consents of any governmental or
other authority that are required to be obtained by it with respect to this
Agreement and shall use all reasonable efforts to obtain any that may become
necessary in the future.
(b) Comply with Laws. The Company shall comply in all material
respects with all applicable laws and orders to which it may be subject if
failure so to comply would materially impair its ability to perform its
obligations under this Agreement.
(c) Purchase of Notes. Expect as described in Section 4(g) hereof,
without the prior approval of the Remarketing Dealer, the Company may not
purchase any of the Notes provided, however, that after the Coupon Reset Date
the Company may purchase the Notes without the prior approval of the Remarketing
Dealer.
(d) Book-entry Form. At all times prior to, and including, the Coupon
Reset Date, notwithstanding any provisions to the contrary set forth in the
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Indenture, (i) the Company shall use its best efforts to maintain the Notes in
book-entry form with The Depository Trust Company or any successor thereto and
to appoint a successor depository to the extent necessary to maintain the Notes
in book-entry form (The Depository Trust Company or any such successor, "DTC")
and (ii) the Company shall waive any discretionary right it otherwise may have
under the Indenture to cause the Notes to be issued in certificated form.
(e) Compliance With Coupon Reset Process. If requested by the
Remarketing Dealer, the Company shall enforce, for the benefit of the
Remarketing Dealer, compliance by the holders and beneficial owners of the Notes
with the terms of the Notes and the Indenture relating to the purchase rights of
the Remarketing Dealer.
(f) During the five Business Day period ending on the Coupon Reset
Date, the Company will not, without the consent of the Remarketing Dealer,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities with a maturity of
more than one year.
SECTION 4. Appointment and Obligations of the Remarketing Dealer[[and
the Calculation Agent]] . (a) On the terms, but subject to the conditions, of
this Agreement, [Xxxxxx Xxxxxxx] [[WDR]] [[[X.X. Xxxxxx]]] hereby accepts the
appointment as the exclusive Remarketing Dealer [[Calculation Agent]] with
respect to the Notes.
(b) It is expressly understood and agreed by the parties hereto that
the obligations of the Remarketing Dealer hereunder to purchase the Notes to be
remarketed on the Coupon Reset Date are conditioned on (i) the issuance and
delivery of such Notes pursuant to the terms and conditions of the Underwriting
Agreement and (ii) the Remarketing Dealer's election on the Notification Date to
purchase the Notes for remarketing on the Coupon Reset Date.
(c) Prior to 4:00 p.m., New York time, on a Business Day not later
than 15 calendar days prior to the Coupon Reset Date (the "NOTIFICATION DATE"),
the Remarketing Dealer may notify the Company and the Trustee in writing (the
"REMARKETING NOTIFICATION") that the Remarketing Dealer elects to purchase all
but not less than all of the Notes on the Coupon Reset Date. If, and only if,
the Remarketing Dealer gives the Remarketing Notification, the Notes shall be
subject to mandatory purchase by the Remarketing Dealer for remarketing on the
Coupon Reset Date, subject to the conditions described herein. The Remarketing
Notification may be revoked by the Remarketing Dealer at any time prior to 4:00
p.m., New York time, on the third Business Day preceding the Coupon Reset Date.
(d) If the Remarketing Dealer gives the Remarketing Notification, the
following steps (the "COUPON RESET PROCESS") shall be taken in order to
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determine the interest rate to be paid on the Notes from and including the
Coupon Reset Date to the Maturity Date. The Company [[,]] and the Remarketing
Dealer [[and the Calculation Agent]] shall use reasonable efforts to cause the
actions contemplated below to be completed in as timely a manner as possible.
Notwithstanding the foregoing, the Coupon Reset Process shall not start or occur
if any Termination Event occurs and, if the Coupon Reset Process has commenced
at the time of any Termination Event, the Coupon Reset Process shall
automatically terminate upon the occurrence of such Termination Event.
(i) The Company shall provide the Remarketing Dealer
[[Calculation Agent]] with (A) a list (the "DEALER LIST"), no later
than five Business Days prior to the Coupon Reset Date, containing the
names and addresses of no fewer than three and no more than five
dealers and one of which shall be the Remarketing Dealer [[Calculation
Agent]], from which the Company desires the Remarketing Dealer
[[Calculation Agent]] to obtain the Bids (as defined below) for the
purchase of such Notes, and (B) a copy of any other material reasonably
requested by the Remarketing Dealer [[Calculation Agent]] to facilitate
a successful Coupon Reset Process.
(ii) Within one Business Day following receipt by the
Remarketing Dealer [[Calculation Agent]] of the Dealer List, the
Remarketing Dealer [[Calculation Agent]] shall provide to each dealer
("DEALER") on the Dealer List (A) a copy of the Prospectus Supplement
and the Base Prospectus, (B) a copy of the Form of Note and (C) a
written request that each such Dealer submit a Bid to the Remarketing
Dealer no later than 3:00 pm, New York time, on the third Business Day
prior to the Coupon Reset Date (the "BID DATE"). "BID" shall mean an
irrevocable written offer given by a Dealer for the purchase of all of
the Notes settling on the Coupon Reset Date, and shall be quoted by
such Dealer as a stated yield to maturity on the Notes ("YIELD TO
Maturity"). Each Dealer shall also be provided with (A) the name of the
Company, (B) an estimate of the Purchase Price (which shall be stated
as a US Dollar amount and be calculated by the Remarketing Dealer
[[Calculation Agent]] in accordance with paragraph (iii) below), (C)
the principal amount and Maturity Date of the Notes and (D) the method
by which interest will be calculated on the Notes.
(iii) The purchase price that would be paid by any Dealer for
the Notes (the "PURCHASE PRICE") shall be equal to (A) the total
principal amount of the Notes, plus (B) a premium (the "NOTES PREMIUM")
which shall be equal to the excess, if any, on the Coupon Reset Date of
(1) the discounted present value to the Coupon Reset Date of a bond
with a maturity of ______ __, [2011] [[2013]] [[[2025]]] which has an
interest rate of ___%, semiannual interest payments on each ______ __
and
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______ __, commencing ______ __ ____, and a principal amount equal
to the principal amount of the Notes, and assuming a discount rate
equal to the Treasury Rate over (2) the principal amount of Notes. The
"TREASURY RATE" means the per annum rate equal to the offer side yield
to maturity of the current on-the-run ____ -year United States Treasury
security per Telerate page 500, or any successor page, no later than
3:00 pm, New York time, on the Bid Date (or such other date and time
that may be agreed upon by the Company and the Remarketing Dealer) or,
if such rate does not appear on Telerate page 500, or any successor
page, at such time, the rates on GovPx End-of-Day Pricing at 3:00 p.m.,
New York time, on the Bid Date (or such other date and time that may be
agreed upon by the Company and the Remarketing Dealer).
(iv) The Remarketing Dealer [[Calculation Agent]] shall provide
written notice to the Company and the [[Remarketing Dealer]] as soon as
practicable on the Bid Date setting forth (A) the names of each of the
Dealers from whom such Remarketing Dealer received Bids on the Bid
Date, (B) the Bid submitted by each such Dealer and (C) the Purchase
Price as determined pursuant to paragraph (iii) above. Except as
provided below, the Remarketing Dealer [[the Calculation Agent]] shall
thereafter select from the Bids received the Bid with the lowest Yield
to Maturity (the "SELECTED BID"); provided, however, that (A) if the
Remarketing Dealer [[the Calculation Date]] has not received a timely
Bid from a Dealer on or before the Bid Date, the Selected Bid shall be
the lowest of all Bids received by such time. The Remarketing Dealer
[[the Calculation Date]] shall set the Coupon Reset Rate equal to the
interest rate which would amortize the Notes Premium fully over the
term of the Notes at the Yield to Maturity indicated by the Selected
Bid, and (B) if any two or more of the lowest Bids are equivalent, the
Company shall in its discretion select any of such equivalent Bids (and
such selected Bid shall be the Selected Bid). In all cases, [Xxxxxx
Xxxxxxx] [[WDR]] [[[X.X. Xxxxxx]]] shall have the right to match the
Bid with the lowest Yield to Maturity whereby [Xxxxxx Xxxxxxx] [[WDR]]
[[[X.X. Xxxxxx]]]'s Bid shall be the Selected Bid.
(v) Immediately after calculating the Coupon Reset Rate, the
Remarketing Dealer [[Calculation Agent]] shall provide written notice
to the Company [[, the Remarketing Dealer]] and the and the Trustee,
setting forth such rate. At the request of the Holders, the Remarketing
Dealer shall provide to the Holders the Coupon Reset Rate. The Coupon
Reset Rate for such Notes will be effective from and including the
Coupon Reset Date.
(e) If the Remarketing Dealer gives the Remarketing Notification,
unless a Termination Event (as defined below) occurs, (i) not later than 2:00
p.m., New York time, on the Business Day prior to the Coupon Reset Date, the
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Remarketing Dealer shall deliver to the Trustee in immediately available funds
an amount equal to 100% of the principal amount of the Notes for payment to the
beneficial owners of the Notes, (ii) the Company shall make, or cause the
Trustee to make, payment of interest and principal to each beneficial owner of
Notes due on the Coupon Reset Date by book-entry through DTC by 1:00 p.m., New
York City time, on the Coupon Reset Date and (iii) each beneficial owner of
Notes will be required to deliver and will be deemed to have delivered such
Notes to the Remarketing Dealer against payment therefor at 1:00 p.m., New York
time, on the Coupon Reset Date by book-entry through DTC. No holder or
beneficial owner of Notes or any interest therein will have any right or claim
against the Remarketing Dealer's decision whether or not to give the Remarketing
Notification or performance or nonperformance with respect thereto.
(f) If any Termination Event occurs or if the Remarketing Dealer fails
to make the payment required under Section 4(e)(i) other than due to the
occurrence of a Market Disruption Event, the Company shall repurchase the entire
principal amount of the Notes on the Coupon Reset Date at a price equal to 100%
of the principal amount of the Notes plus all accrued and unpaid interest, if
any, on the Notes to but excluding the Coupon Reset Date; provided, that any
such repurchase by the Company as a result of clause (ii) above shall not
constitute a waiver of any claim for breach of this Agreement that the Company
may have against the Remarketing Dealer. In any such case, payment shall be made
by the Company by book-entry through DTC by 1:00 p.m., New York City time, on
the Coupon Reset Date against delivery through DTC of the Notes.
(g) If the Remarketing Dealer gives the Remarketing Notification, then
not later than the fourth Business Day following the Notification Date, the
Company may irrevocably elect, in its sole and absolute discretion, by notice in
writing to the Remarketing Dealer and the Trustee, to terminate the Coupon Reset
Process.
(h) Upon the occurrence of a Settlement Event (as defined below), the
Company shall pay to the Remarketing Dealer the Settlement Amount promptly
following calculation thereof.
(i) For purposes of this Agreement:
"AFFILIATE" shall mean, in relation to any party, any entity
controlled, directly or indirectly, by the party, any entity that controls,
directly or indirectly, the party or any entity directly or indirectly under a
common control with the party. For this purpose, "control" of any entity or
party means ownership of a majority of the voting power of the entity or party.
"MARKET DISRUPTION EVENT" shall mean any of the following events, if
such events occur or are continuing on any day from, and including, the
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Notification Date to, and including, the Coupon Reset Date in the judgment of
the Remarketing Dealer: (a) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the establishment of
minimum prices on such exchange; (b) a general moratorium on commercial banking
activities declared by either federal or New York State authorities; (c) an
outbreak or escalation of hostilities or other calamity or crisis or material
change in existing national or international financial, political, economic or
securities market conditions; (d) an outbreak or escalation, of major
hostilities involving the, United States of America or the declaration of a
national emergency or war by the United States of America; (e) any material
disruption of the U.S. Treasury securities market, U.S. corporate bond market or
U.S. federal wire system or (f) the occurrence of any material adverse change,
in the condition, financial or otherwise, earnings or business of the Company
and its subsidiaries, considered as a whole, whether or not arising in the
ordinary course of business; provided, in each case, that in the judgment of the
Remarketing Dealer the effect of the foregoing makes it impracticable or
inadvisable to conduct the Coupon Reset Process or to remarket the Notes or to
enforce contracts for the sale of the Notes.
"REFERENCE DEALER" shall mean a market dealer, selected in good faith
by [Xxxxxx Xxxxxxx] [[WDR]] [[[X.X. Xxxxxx]]], subject to the approval of the
Company which shall not unreasonably withheld, that makes markets in derivative
transactions for corporate and U.S.
Treasury securities in the normal course of business.
"SETTLEMENT AMOUNT" shall mean the fair market value, as of the date of
the termination of this Agreement, of the option to receive the Notes Premium on
the Coupon Reset Date from a financial institution rated Aa/AA by Xxxxx'x or
S&P, respectively. If this Agreement terminates on or after 15 calendar days
prior to the Coupon Reset Date, then the Settlement Amount shall be deemed to
equal the Notes Premium (calculated as if the Coupon Reset Date were the date of
termination of the Agreement). Fair market value shall be determined by [Xxxxxx
Xxxxxxx] [[WDR]] [[[X.X. Xxxxxx]]], by requesting bids from five Reference
Dealers, one of which shall be [Xxxxxx Xxxxxxx] [[WDR]] [[[X.X. Xxxxxx]]],
within five Business Days of the date this Agreement terminates. [Xxxxxx
Xxxxxxx] [[WDR]] [[[X.X. Xxxxxx]]] shall (i) if five bids were made, disregard
the lowest and the highest bid and (ii) average such bids to determine the fair
market value; provided that, if [Xxxxxx Xxxxxxx] [[WDR]] [[[X.X. Xxxxxx]]] has
not received a bid within 10 Business Days following the request for such bid,
the fair market value shall be the average of the bids that have been received
by 5:00 p.m. as of the tenth Business Day following [Xxxxxx Xxxxxxx] [[WDR]]
[[[X.X. Xxxxxx]]]'s initial request for such bids. If [Xxxxxx Xxxxxxx] [[WDR]]
[[[X.X. Xxxxxx]]] determines that the bids provided do not reflect a reasonably
accurate valuation of the Settlement Amount, the Settlement Amount shall equal
the amount that [Xxxxxx Xxxxxxx] [[WDR]] [[[X.X. Xxxxxx]]] and the Company
-9-
reasonably determine in good faith to be the total losses and costs of the
Remarketing Dealer in connection with this Agreement.
"SETTLEMENT EVENT" means any of the following: (a) at any time on or
prior to the sale of the Notes on the Coupon Reset Date, (i) an Event of Default
(as defined in the Indenture) has occurred and is continuing under Sections 501
(3) or (4) under the Indenture (in which case, the occurrence of a Settlement
Event is at the Remarketing Dealer's option), (ii) a default, event of default
or other similar condition or event (however described) in respect of the
Company or any of its subsidiaries (individually or collectively) has occurred
under one or more agreements or instruments relating to indebtedness of the
Company or any of its subsidiaries in an aggregate amount of not less than
$20,000,000 which has resulted in such indebtedness becoming due and payable,
under such agreements or instruments, before it would otherwise have been due
and payable (in which case, the occurrence of a Settlement Event is at the
Remarketing Dealer's option), (iii) the Company or any of its subsidiaries has
defaulted in making one or more payments on the due date thereof in an aggregate
amount of not less than $20,000,000 under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period) (in which
case, the occurrence of a Settlement Event is at the Remarketing Dealer's
option), (iv) an Event of Default has occurred and is continuing under Sections
501(6) or (7) under the Indenture (in which case, the occurrence of a Settlement
Event is automatic), or (v) the Notes shall have been assigned a rating below
Investment Grade by any of the Rating Agencies (in which case, the occurrence of
the Settlement Event is at the Remarketing Dealer's option), (b) if less than
two Dealers have submitted Bids in a timely manner (in which case, the
occurrence of a Settlement Event is automatic), or (c) the Company terminates
the Coupon Reset Process pursuant to Section 4(g) (in which case, the occurrence
of a Settlement Event is automatic), or (d) a Defeasance or a Covenant
Defeasance with respect to the Notes occurs pursuant to Section 1302 or 1303,
respectively, of the Indenture (in which case, the occurrence of a Settlement
Event is automatic), or (e) the Remarketing Dealer fails to make the payment
required under Section 4(e)(i) due to the occurrence of a Market Disruption
Event (in which case, the occurrence of a Settlement Event is automatic). For
purposes of the foregoing, "RATING AGENCY" shall mean Standard & Poor's
Corporation and its successors and Xxxxx'x Investor's Services, Inc. and its
successors; and "INVESTMENT GRADE" shall mean that the Company's long-term,
unsecured debt is rated BBB- or higher by S&P and Baa3 or higher by Xxxxx'x.
"TERMINATION EVENT" means (i) the Remarketing Dealer does not give the
Remarketing Notification, (ii) the Remarketing Dealer validly revokes the
Remarketing Notification, (iii) prior to the Notification Date the Remarketing
Dealer resigns and no successor has been appointed or (iv) any Settlement Event.
-10-
SECTION 5. Fees and Expenses. For its services in performing its duties
set forth herein, the Remarketing Dealer shall not receive any fees or
reimbursement of expenses from the Company other than as provided in Sections
4(h) and 8.
SECTION 6. Resignation of the Remarketing Dealer. The Remarketing
Dealer may resign at any time as Remarketing Dealer, such resignation to be
effective ten Business Days after the delivery to the Company and the Trustee of
notice of such resignation. The Company may appoint a new Remarketing Dealer
other than the incumbent Remarketing Dealer if the incumbent Remarketing Dealer
resigns. If a new Remarketing Dealer is appointed pursuant to this Section 6,
the Company shall provide the Trustee with notice thereof.
SECTION 7. Appointment of Successor Remarketing Dealer. Any successor
Remarketing Dealer appointed by the Company or by a court pursuant to the
provisions of Section 6 shall execute and deliver to the incumbent Remarketing
Dealer and to the Company an instrument accepting such appointment and thereupon
such successor Remarketing Dealer shall, without any further act or instrument,
become vested with all the rights, immunities, duties and obligations of the
incumbent Remarketing Dealer, with like effect as if originally named as initial
Remarketing Dealer hereunder, and the incumbent Remarketing Dealer shall
thereupon be obligated to transfer and deliver, and such successor Remarketing
Dealer shall be entitled to receive and accept, copies of any available records
maintained by the incumbent Remarketing Dealer in connection with the
performance of its obligations hereunder.
SECTION 8. Indemnification. The Company shall indemnify and hold
harmless [Xxxxxx Xxxxxxx] [[WDR]] [[[X.X. Xxxxxx]]], the Remarketing Dealer and
their respective officers and employees from and against all actions, claims,
damages, liabilities and losses, and costs and expenses related thereto
(including reasonable legal fees and costs) relating to or arising out of
actions or omissions in any capacity hereunder, except actions, claims, damages,
liabilities, losses, costs and expenses caused by the bad faith, gross
negligence or wilful misconduct of such indemnified party. This Section 8 shall
survive the termination of the Agreement and the payment in full of all
obligations under the Notes and this Agreement, whether by purchase, repurchase,
redemption or otherwise.
SECTION 9. Merger, Consolidation or Sale of Business by Remarketing
Dealer. Any corporation or other entity into which the Remarketing Dealer may be
merged, converted or consolidated, or any corporation or other entity resulting
from any merger, conversion or consolidation to which such Remarketing Dealer
may be a party, or any corporation or other entity to which such Remarketing
Dealer may sell or otherwise transfer all or substantially all of its business,
shall, to the extent permitted by applicable law, become the Remarketing Dealer
under
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this agreement without the execution of any document or any further act by
the parties hereto.
SECTION 10. Notices. Any notice or other communication required to be
given hereunder shall be delivered in person, sent by letter, telecopy or telex
or communicated by telephone (subject, in the case of communication by
telephone, to written confirmation dispatched within 24 hours) to the addresses
given below or such other address as each party hereto may subsequently
designate in writing.
-12-
To the Company:
Bausch & Lomb Incorporated
Xxx Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Attention: ____________
Telephone No.: (716) ___-____
Facsimile No.: (716) ___-____
To the Trustee:
Citibank, N.A.
_________________________
_________________________
Attention: ___________
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
To the Remarketing Dealer:
[MorganStanley & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: DPG
Telephone No.:(000)000-0000
Telecopy No.:(000)000-0000]
[[Union Bank of Switzerland Ag, London Branch
000 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Facsimile No: ____________]]
-13-
[[[X.X.Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Syndicate Department
Facsimile No.: (000) 000-0000]]]
If to the Calculation Agent:
[[Warbur Xxxxxx Read LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn:
Syndicate Dept.
Facsimile No.: (000) 000-0000]]
Any notice hereunder given by telecopy or telex shall be deemed to have been
given when transmitted. Any notice hereunder given by letter shall be deemed to
have been given five business days after mailing such notice.
SECTION 11. Benefit of Agreement. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their successors
and assigns, and no other person shall acquire or have any rights under or by
virtue hereof. The terms "SUCCESSORS" and "ASSIGNS" shall not include any
purchasers of any Notes merely because of such purchase.
SECTION 12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements entered into and performed in such State.
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SECTION 13. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provision of any constitution, statute, rule or public policy
or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement invalid, inoperative or unenforceable to any
extent whatsoever.
SECTION 14. Counterparts. This Agreement may be executed in several
counterparts,each of which shall be regarded as an original and all of which
shall constitute one and the same instrument.
SECTION 15. Amendments. This Agreement may be amended by any instrument
in writing executed and delivered by each of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been entered into as of the day
of July __, 1998.
BAUSCH &LOMB INCORPORATED
By:____________________________
Name:
Title:
[XXXXXX XXXXXXX & CO. INCORPORATED]
[[WARBURG DILLON READ LLC,
AS CALCULATION AGENT]]
[[[X.X. XXXXXX SECURITIES INC.]]]
By:______________________________
Name:
Title:
UNION BANK OF SWITZERLAND AG,
LONDON BRANCH
By:_______________________________
Name:
Title:
