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EXHIBIT 10.1
AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT No. 3 (this "Amendment") dated as of May 28, 2004 to the
Credit Agreement referenced below is by and among Advanced Medical Optics, Inc.,
a Delaware corporation (the "Borrower"), the Guarantor, the Lenders party hereto
and Bank of America, N.A., as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"). All capitalized terms used herein but not
otherwise defined herein shall have the meanings provided to such terms in the
Credit Agreement (as defined below).
W I T N E S S E T H
WHEREAS, a $100 million revolving credit facility has been established in
favor of the Borrower pursuant to the terms of that certain Amended and Restated
Credit Agreement (as amended, modified and supplemented from time to time, the
"Credit Agreement") dated as of June 17, 2003 among the Borrower, the Lenders
from time to time party thereto, Bank of America, N.A., as Administrative Agent,
Foreign Currency Fronting Lender and L/C Issuer, General Electric Capital
Corporation, as Syndication Agent, Bank One, NA, as Documentation Agent, and
General Electric Capital Corporation and Banc of America Securities LLC, as
Co-Lead Arrangers;
WHEREAS, the Borrower has requested the Lenders to amend the Credit
Agreement as set forth herein; and
WHEREAS, the Lenders have agreed to amend the Credit Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendments. The Credit Agreement is amended in the following
respects:
(a) The definition of "Consolidated EBITDA" in Section 1.01 is
hereby amended by (i) deleting the word "and" appearing at the end of
clause (iv) thereof and substituting "," therefor, (ii) deleting the ","
appearing at the end of clause (v) thereof and substituting ", and"
therefor and adding a new clause (vi) which shall read as follows:
(vi) (A) the cash charges related to the conversion of those certain
3 -1/2% convertible debt securities of the Borrower issued on June
24, 2003 into Equity Interests, such cash charges in an amount not
to exceed $30 million in the aggregate for such period or any future
period and (B) the non-cash charges related to the conversion of
those certain 3 -1/2% convertible debt securities of the Borrower
issued on June 24, 2003 into Equity Interests, such non-cash charges
in an amount not to exceed $100 million in the aggregate for such
period or any future period,
(b) Subsection (a) in the definition of "Consolidated Interest
Charges" in Section 1.01 is hereby amended to read as follows:
(a) all interest, premium payments, debt discount, fees, charges and
related expenses of the Borrower and its Subsidiaries in connection
with borrowed money (including capitalized interest) or in
connection with the deferred purchase price of assets, in each case
to the extent treated as interest expense in accordance with GAAP,
whether or not paid in cash during such period (excluding (A) those
certain cash charges related to the conversion of those certain 3
-1/2% convertible debt securities of the Borrower issued on June 24,
2003 into Equity Interests, such cash charges in an amount not to
exceed $30 million in the aggregate for such period or any future
period and (B) those certain non-cash charges related to the
conversion of those certain 3 -1/2% convertible debt securities of
the Borrower issued on June 24, 2003 into Equity Interests, such
non-cash charges in an amount not to exceed $100 million in the
aggregate for such period or any future period), and
(c) The "." appearing at the end of Section 7.06(f)(iii) is hereby
deleted and replaced with "; and" and a new subsection (g) is hereby added
at the end of Section 7.06 and shall read as follows:
(g) the Borrower may make distributions (whether in cash or
securities) in an amount not to exceed $30 million in the aggregate
to certain holders of those certain 3 -1/2% convertible debt
securities of the Borrower issued on June 24, 2003 in order to
induce such holders to convert such convertible debt securities into
Equity Interests.
2. Conditions Precedent. This Amendment shall be effective upon receipt
by the Administrative Agent of counterparts of this Amendment executed by the
Borrower, the Guarantor and the Required Lenders.
3. Miscellaneous.
(a) The Credit Agreement, and the obligations of the Loan Parties
thereunder and under the other Loan Documents, are hereby ratified and
confirmed and shall remain in full force and effect according to their
terms. On and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Notes
and each of the other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as
amended by this Amendment.
(b) The Guarantor (a) acknowledges and consents to all of the
terms and conditions of this Amendment, (b) affirms all of its obligations
under the Loan Documents and (c) agrees that this Amendment and all
documents executed in connection herewith do not operate to reduce or
discharge its obligations under its Guaranty or the other Loan Documents.
(c) The Borrower and the Guarantor hereby represent and warrant as
follows:
(i) Each Loan Party has taken all necessary action to
authorize the execution, delivery and performance of this Amendment.
(ii) This Amendment has been duly executed and delivered by
the Loan Parties and constitutes each of the Loan Parties' legal,
valid and binding obligations, enforceable in accordance with its
terms, except as such enforceability may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium
or similar laws affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(iii) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or
governmental authority or third party is required in connection with
the execution, delivery or performance by any Loan Party of this
Amendment.
(d) The Loan Parties represent and warrant to the Lenders that (i)
the representations and warranties of the Loan Parties set forth in Article V of
the Credit Agreement and in each other Loan Document are true and correct in all
material respects as of the date hereof with the same effect as if made on and
as of the date hereof, except to the extent such representations and warranties
expressly relate solely to an earlier date, and (ii) no event has occurred and
is continuing which constitutes a Default or an Event of Default.
(e) The Borrower agrees to pay all reasonable costs and expenses
of the Administrative Agent in connection with the preparation, execution and
delivery of this Amendment, including without limitation the reasonable fees and
expenses of Xxxxx & Xxx Xxxxx, PLLC.
(f) This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of an executed
counterpart of this Amendment by telecopy shall be effective as an original and
shall constitute a representation that an executed original shall be delivered.
(g) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date and year first
above written.
BORROWER: ADVANCED MEDICAL OPTICS, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX, XX.
---------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President, Treasurer
GUARANTOR: AMO HOLDINGS, LLC
By: /s/ XXXXXXX X. XXXXXXX, XX.
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President, Treasurer
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
LENDERS: BANK OF AMERICA, N. A., as a Lender
By: /s/ XXXXX X. XXXX
---------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ XXXXXX XXXXXX
--------------------------
Name: Xxxxxx Xxxxxx
Title: Duly Authorized Signatory
BANK ONE, NA
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
UNION BANK OF CALIFORNIA, N.A.
By:___________________________________
Name:_________________________________
Title:________________________________
THE GOVERNOR AND COMPANY OF BANK
OF IRELAND
By:___________________________________
Name:_________________________________
Title:________________________________
MUIRFIELD TRADING LLC
By: /s/ XXXXX X. XXXXX
------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
LONG GROVE CLO, LIMITED
By: /s/ XXXX XXXXXX
-----------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
US BANK
By: /s/ XXXXXX X. XXXXX
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
