AMENDMENT NO. 3 TO CREDIT AGREEMENT

AMENDMENT NO. 3 TO CREDIT AGREEMENT

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Exhibit 10.1

Execution Version

DEAL CUSIP NUMBER: 00000XXX0

REVOLVER CUSIP NUMBER: 00000XXX0

This AMENDMENT NO. 3 TO CREDIT AGREEMENT (this “Amendment”) is entered into as of June 30, 2014 among (i) THE XXXXXX COMPANIES, INC., a Delaware corporation (the “Company”), (ii) COOPERVISION INTERNATIONAL HOLDING COMPANY, LP, an entity organized under the laws of England and Wales and registered in Barbados as an External Company under the laws of Barbados (the “Foreign Borrower” and together with the Company, each, a “Borrower” and collectively, the “Borrowers”), (iii) the Lenders (defined below) executing signatures page hereto, and (iv) KEYBANK NATIONAL ASSOCIATION, as the administrative agent (the “Administrative Agent”).

RECITALS:

A. The Borrowers, the Administrative Agent and the lenders party thereto (each, a “Lender” and collectively, the “Lenders”) are parties to the Credit Agreement, dated as of January 12, 2011, as amended by the Amendment No. 1 to Credit Agreement, dated as of May 31, 2012, and as further amended by the Amendment No. 2 to Credit Agreement, dated as of September 12, 2013 (as the same may from time to time be further amended, restated or otherwise modified, the “Credit Agreement”).

B. The Borrowers, the Administrative Agent and the Lenders party hereto desire to amend the Credit Agreement to modify certain provisions thereof.

AGREEMENT:

In consideration of the premises and mutual covenants herein and for other valuable consideration, the Borrowers, the Administrative Agent and the Lenders party hereto agree as follows:

Section 1. Definitions. Unless otherwise defined herein, each capitalized term used in this Amendment and not defined herein shall be defined in accordance with the Credit Agreement.

Section 2. Amendments and Limited Waivers.

2.1 Amendments to Section 1.01.

a. Section 1.01 of the Credit Agreement is hereby amended by inserting the following new definitions in alphabetical order:

“Target” means, collectively, Sauflon Pharmaceuticals Limited, a company organized under the laws of England and Wales, and various of its subsidiaries.

“Target Acquisition” means the acquisition of all or a controlling portion of the Equity Interests of Target by a Subsidiary of the Company pursuant to the Target Acquisition Documents.

“Target Acquisition Documents” means those certain Sale and Purchase Agreements pursuant to which the Target Acquisition will be consummated, together with all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof or entered into in connection therewith, in each case, as amended, supplemented or otherwise modified from time to time to the extent not prohibited or restricted by this Agreement.

b. The definition of the term “Permitted Foreign Subsidiary Loans and Investments” set forth in Section 1.01 of the Credit Agreement is hereby amended and restated in full as follows:

“Permitted Foreign Subsidiary Loans and Investments” means (i) the loan evidenced by the CVIHC Note; (ii) other loans and Investments by a Credit Party (other than the Foreign Borrower) to or in a Foreign Subsidiary made on or after the Closing Date, so long as the aggregate amount of all such other loans and Investments by all Credit Parties does not, at any time, exceed the Permitted Foreign Subsidiary Basket Amount at such time; (iii) Indebtedness of a Foreign Subsidiary owing to any Person (other than the Company or any of its Domestic Subsidiaries), and any guaranty of such Indebtedness by a Credit Party, so long as the aggregate principal amount of all such Indebtedness pursuant to clauses (i) and (ii) does not at any time exceed the Foreign Subsidiary Basket Amount then in effect; and (iv) in addition to any loans or Investments permitted pursuant to clauses (i), (ii) or (iii) above, loans and Investments by a Credit Party to or in a Foreign Subsidiary to pay all or part of the consideration and related fees, costs and expenses in connection with the Target Acquisition; provided that for purposes of determining compliance with clauses (ii) and (iii) hereof, in the event that an item of proposed Investment or Indebtedness to or in a Foreign Subsidiary meets the criteria of one or more of the categories of Investments or Indebtedness permitted under Section 7.05 or Section 7.04, respectively, as of the date of incurrence thereof, the Company shall, in its sole discretion, classify all or a portion of such Investment or Indebtedness under clause (ii) or clause (iii) hereof, as applicable, or under such category of Investments or Indebtedness permitted under Section 7.04 or Section 7.05, as applicable, and neither the Permitted Foreign Subsidiary Basket Amount nor the Foreign Subsidiary Basket Amount, as applicable, shall be reduced to the extent any such Investment or Indebtedness to or in a Foreign Subsidiary is classified under such category of Investment or Indebtedness permitted under Section 7.04 or Section 7.05, as applicable.

c. The definition of the term “Unrestricted Cash” set forth in Section 1.01 of the Credit Agreement is hereby amended and restated in full as follows:

“Unrestricted Cash” means, at any time of determination, the sum of (i) the aggregate amount of all cash deposits of the Company and its Subsidiaries maintained in any demand deposit account, and (ii) the aggregate monetary value of all money market funds of the Company and its Subsidiaries maintained in any account of a securities intermediary, to the extent such cash deposits and money market funds are free of any Lien or other encumbrance (other than (x) customary Liens arising in the ordinary course of business which the depository institution may have with respect to any right of offset against funds in such account, and (y) customary holds for uncollected deposits).

2.2 Amendments to Section 7.02. Section 7.02 of the Credit Agreement is hereby amended by (a) deleting the word “and” at the end of clause (g), (b) re-lettering the existing clause (h) thereof as clause (i) and (c) adding the following new clause (h) immediately following clause (g):

(h) the transfer or sale of any assets acquired by the Company or any of its Subsidiaries in connection with the Target Acquisition; and

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2.3 Amendment to Section 7.03. Section 7.03 of the Credit Agreement is hereby amended by (a) deleting the “.” at the end of clause (l) and replacing it with “; and” and (b) adding the following new clause (m) at the end thereof:

(m) Liens on assets of Target securing Indebtedness assumed in connection with the Target Acquisition and permitted under Section 7.04(c).

2.4 Amendments to Section 7.04.

a. Section 7.04(c) of the Credit Agreement is hereby amended and restated in full as follows:

(c) Indebtedness assumed in connection with a Permitted Acquisition, provided that (i) such Indebtedness was not incurred in contemplation of such Permitted Acquisition, (ii) other than with respect to any Indebtedness assumed in connection with the Target Acquisition, no Default or Event of Default shall then exist or at the time such Indebtedness is assumed by such Borrower will exist and (iii) such Borrower and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 7.07 both immediately before and after giving pro forma effect to the assumption of such Indebtedness;

b. Section 7.04 of the Credit Agreement is hereby amended by (a) deleting the word “and” at the end of clause (i), (b) deleting the “.” at the end of clause (j) and replacing it with “; and” and (c) adding the following new clause (k) at the end thereof:

(k) Indebtedness issued or incurred by the Company or any Subsidiary in order to finance or refinance all or part of the consideration and related costs, fees and expenses in connection with the Target Acquisition, whether such Indebtedness is issued to one or more sellers of Target or otherwise and whether such Indebtedness is issued or incurred prior to or subsequent to the consummation of the Target Acquisition, provided that, in each case, (i) the aggregate principal amount of Indebtedness issued or incurred under this clause (k) does not exceed the aggregate purchase price for Target pursuant to the Target Acquisition Documents plus the amount of any fees, costs and expenses related to such acquisition or such issuance or incurrence of Indebtedness and (ii) the Company and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 7.07 both immediately before and after giving pro forma effect to the incurrence of such Indebtedness.

2.5 Amendments to Section 7.05. Section 7.05 of the Credit Agreement is hereby amended by (a) deleting the word “and” at the end of clause (m), (b) deleting the “.” at the end of clause (n) and replacing it with “; and” and (c) adding the following new clause (o) at the end thereof:

(o) any Guaranty Obligations of the Company or any Subsidiary (i) constituting Indebtedness permitted pursuant to Section 7.04(c) and (ii) with respect to Indebtedness incurred pursuant to Section 7.04(k).

2.6 Amendments to Section 7.06. Section 7.06 of the Credit Agreement is hereby amended by (a) deleting the word “and” at the end of clause (d), (b) deleting the “.” at the end of clause (e) and replacing it with “; and” and (c) adding the following new clause (f) at the end thereof:

(f) after consummation of the Target Acquisition, Target may declare and pay or make Capital Distributions to the holders of minority interests in Target in connection with the acquisition by the Company, directly or indirectly, of Target’s Equity Interests held by such holders of minority interests.

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2.7 Limited Waivers. Solely to the extent relating to the consummation of the Target Acquisition, the Lenders hereby waive (a) the requirement under clause (ii) of the definition of “Permitted Acquisition” that no Default or Event of Default shall exist prior to or immediately after giving effect to the Target Acquisition (provided that the requirements specified in the provisos of Section 7.04(c) and Section 7.04(k) of the Credit Agreement, as amended by this Amendment, shall not be waived by this Section 2.7), (b) the requirements under clause (v) of the definition of “Permitted Acquisition” that the Borrower deliver historical financial statements of Target and a certificate of an Authorized Officer demonstrating the computation of the financial covenants set forth in Section 7.07 on a pro forma basis and (c) the requirements under Section 7.08 of the Credit Agreement in connection with any Indebtedness issued or incurred pursuant to Section 7.04(k) of the Credit Agreement, as amended by this Amendment.

Section 3. Effectiveness. This Amendment shall be effective on the date upon which each of the following conditions precedent has been satisfied (the “Effective Date”):

3.1 This Amendment shall have been executed by the Borrowers, each Subsidiary Guarantor, the Administrative Agent and the Required Lenders, and counterparts hereof as so executed shall have been delivered to the Administrative Agent.

3.2 The Administrative Agent shall have received all documented out-of-pocket expenses (including reasonable fees and disbursements of counsel to the Administrative Agent, to the extent invoiced on or prior to the Effective Date) in connection with the preparation, negotiation and effectiveness of this Amendment and the other documents being executed or delivered in connection herewith.

Section 4. Miscellaneous.

4.1 Representations and Warranties. Each Borrower and each Subsidiary Guarantor, by signing below, hereby represents and warrants to the Administrative Agent and the Lenders that:

a. each Borrower and each Subsidiary Guarantor has the legal power and authority to execute and deliver this Amendment;

b. the officers executing this Amendment on behalf of each Borrower and each Subsidiary Guarantor have been duly authorized to execute and deliver the same and bind such Borrower or such Subsidiary Guarantor with respect to the provisions hereof;

c. no Default or Event of Default exists under the Credit Agreement, nor will any occur immediately after the execution and delivery of this Amendment;

d. this Amendment constitutes the legal, valid and binding agreement and obligation of the Borrowers and each Subsidiary Guarantor, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law); and

e. each of the representations and warranties set forth in Article V of the Credit Agreement is true and correct in all material respects as of the date hereof, except to the extent that any thereof expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of the date when made.

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4.2 Credit Agreement Unaffected. Each reference to the Credit Agreement in any Loan Document shall hereafter be construed as a reference to the Credit Agreement as amended or waived hereby. Except as herein otherwise specifically provided, all provisions of the Credit Agreement shall remain in full force and effect and be unaffected hereby. This Amendment shall be a Loan Document.

4.3 Subsidiary Guarantor Acknowledgment. Each Subsidiary Guarantor, by signing this Amendment:

a. consents and agrees to and acknowledges the terms of this Amendment;

b. acknowledges and agrees that all of the Loan Documents to which such Subsidiary Guarantor is a party or is otherwise bound shall continue in full force and effect and that all of such Subsidiary Guarantor’s obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment; and

c. acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Subsidiary Guarantor is not required by the terms of the Credit Agreement or any other Loan Document to which such Subsidiary Guarantor is a party to consent to the amendments to the Credit Agreement effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of such Subsidiary Guarantor to any future amendments or modifications to the Credit Agreement.

4.4 Entire Agreement. This Amendment, together with the Credit Agreement and the other Loan Documents, integrates all the terms and conditions mentioned herein or incidental hereto and supersedes all oral representations and negotiations and prior writings with respect to the subject matter hereof.

4.5 Counterparts This Amendment may be executed in any number of counterparts, by different parties hereto in separate counterparts and by facsimile signature, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.

4.6 Governing Law. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). TO THE FULLEST EXTENT PERMITTED BY LAW, THE BORROWERS HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK GOVERNS THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS.

4.7 JURY TRIAL WAIVER. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS

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AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY AMENDMENTS, WAIVERS OR OTHER MODIFICATIONS RELATING TO ANY OF THE FOREGOING), OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

[Signature pages follow.]

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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the date first above written.


THE XXXXXX COMPANIES, INC., as a Borrower

By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Treasurer

COOPERVISION INTERNATIONAL HOLDING COMPANY, LP, as a Borrower

By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Treasurer of CooperVision, Inc., acting as General Partner

KEYBANK NATIONAL ASSOCIATION, as the Administrative Agent, Co-Lead Arranger, the Swing Line Lender, a Lender and an LC Issuer

By:	/s/ Xxxxxxxx X. Xxxx
Name:	Xxxxxxxx X. Xxxx
Title:	Senior Vice President

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Each of the undersigned Subsidiary Guarantors acknowledges the terms of and consents to the foregoing:

COOPERVISION, INC.

By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Treasurer

COOPERSURGICAL, INC.

By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Treasurer

TCC ACQUISITION CORP.

By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Treasurer

XXXXXX MEDICAL, INC.

By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Treasurer

ORIGIO, INC.

By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Treasurer

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Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto


Name of Institution:	DNB CAPITAL LLC

	By:	/s/ Xxxxxxx Xx
		Name:	Xxxxxxx Xx
		Title:	Vice President

		/s/ Xxxxx X. Xxxxxxxxxx
		Name:	Xxxxx X. Xxxxxxxxxx
		Title:	Senior Vice President

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto


Name of Institution:	UBS AG, STAMFORD BRANCH

	By:	/s/ Xxxx Xxxxx
		Name:	Xxxx Xxxxx
		Title:	Director

		/s/ Xxxxxxxx Xxxxxxxx
		Name:	Xxxxxxxx Xxxxxxxx
		Title:	Associate Director

Signature Page to

Amendment No. 3 dated as of June 30, 2014

to the

Credit Agreement among THE XXXXXX COMPANIES, INC. and COOPERVISION

INTERNATIONAL HOLDING COMPANY, LP, as the Borrowers,

Key Bank National Association, as the Administrative Agent, and

the Lenders Party Thereto

Name of Institution:

JPMORGAN CHASE BANK, N.A.

/s/ Xxxx Xxxxx

Xxxx Xxxxx

Vice President