The Cooper Companies, Inc. (COO) 10-Q 2006 Q3 Quarterly report

Exhibit 10.1

AMENDMENT NO. 1

TO

THE AMENDED AND RESTATED CREDIT AGREEMENT

This Amendment No. 1 to the Amended and Restated Credit Agreement (this “Amendment”) is made as of July 31, 2006 (the “First Amendment Effective Date”), by and among THE COOPER COMPANIES, INC., a Delaware corporation (the “Borrower”), the lenders party to the Credit Agreement referred to below (the “Lenders”) and KEYBANK NATIONAL ASSOCIATION, as administrative agent for the Lenders (theAdministrative Agent”).

RECITALS:

A. The Borrower, the Administrative Agent and the Lenders are parties to the Amended and Restated Credit Agreement dated as of December 12, 2005 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).

B. The Borrower, the Administrative Agent and the Lenders desire to amend the Credit Agreement to modify certain provisions thereof in the manner and to the extent set forth therein.

C. Each capitalized term used herein shall be defined in accordance with the Credit Agreement.

AGREEMENT:

In consideration of the premises and mutual covenants herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Administrative Agent and the Lenders agree as follows:

1.Addition of Definitions. Section 1.01 of the Credit Agreement is hereby amended by inserting therein the following new definitions in correct alphabetical order:

“First Amendment” means Amendment No. 1 to the Amended and Restated Credit Agreement, dated as of July 31, 2006, among the Borrower, the Administrative Agent and the Lenders.

“First Amendment Effective Date” has the meaning assigned to such term in the First Amendment.

“Foreign Subsidiary Basket Amount” means (a) for the period commencing on the Closing Date and ending on October 31, 2007, $200,000,000, (b) for the period commencing on November 1, 2007 and ending on October 31, 2008, $175,000,000, and (c) for the period commencing on November 1, 2008 and on the Revolving Facility Termination Date, $125,000,000.

2.Amendment of Definition of Designated Hedge Agreement. Section 1.01 of the Credit Agreement is hereby amended by amending and restating the definition of “Designated Hedge Agreement” in its entirety as follows:

“Designated Hedge Agreement” means (i) each of the Hedge Agreements identified onSchedule 4 hereto, and (ii) any other Hedge Agreement (other than a Commodities Hedge Agreement) to which the Borrower or any of its Subsidiaries is a party and as to which a Lender or any of its Affiliates is a counterparty.

3.Deletion of Definition of Designated Hedge Certificate. Section 1.01 of the Credit Agreement is hereby amended by deleting the definition of “Designated Hedge Certificate” in its entirety.

4.Amendment to Definitions of Permitted Foreign Subsidiary Basket Amount and Permitted Foreign Subsidiary Loans and Investments. Section 1.01 of the Credit Agreement is hereby amended by amending the definitions of “Permitted Foreign Subsidiary Basket Amount” and “Permitted Foreign Subsidiary Loans and Investments” by replacing each occurrence of “$125,000,000” in each such definition with the phrase “the Foreign Subsidiary Basket Amount then in effect”.

5.Deletion of Exhibit H. Exhibit H to the Credit Agreement is hereby deleted in its entirety.

6.Amendment to Section 7.04(c). Section 7.04(c) of the Credit Agreement is hereby amended by replacing “$10,000,000” therein with “$100,000,000”.

7.Conditions Precedent. The amendments set forth above shall become effective upon the satisfaction of the following conditions precedent:

(a) this Amendment has been executed by the Borrower, the Administrative Agent and the Required Lenders, and counterparts hereof as so executed shall have been delivered to the Administrative Agent; and

(b) each Subsidiary Guarantor has executed and delivered to the Administrative Agent the Subsidiary Guarantor Acknowledgment and Agreement attached hereto.

8.Representations and Warranties. The Borrower hereby represents and warrants to Administrative Agent and the Lenders that (a) the Borrower has the legal power and authority to execute and deliver this Amendment; (b) the officials executing this Amendment have been duly authorized to execute and deliver the same and bind the Borrower with respect to the provisions hereof; (c) the execution and delivery hereof by the Borrower and the performance and observance by the Borrower of the provisions hereof do not violate or conflict with the organizational documents of the Borrower or any law applicable to the Borrower; (d) no Default or Event of Default exists under the Credit Agreement, nor will any occur immediately after the execution and delivery of this Amendment or by the performance or observance of any provision hereof; and (e) this Amendment constitutes a valid and binding obligation of the Borrower in every respect, enforceable in accordance with its terms.

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

10.Waiver. The Borrower and each Subsidiary Guarantor, by signing below, hereby waives and releases, to the fullest extent permitted by applicable law, the Administrative Agent and each of the Lenders and their respective directors, officers, employees, attorneys, affiliates and subsidiaries from any and all claims, offsets, defenses and counterclaims of which the Borrower and any Subsidiary Guarantor is

aware, such waiver and release being with full knowledge and understanding of the circumstances and effect thereof and after having consulted legal counsel with respect thereto.

11.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.

12.Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.

(a) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). TO THE FULLEST EXTENT PERMITTED BY LAW, THE BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK GOVERNS THIS AMENDMENT. Any legal action or proceeding with respect to this Amendment may be brought in the Supreme Court of the State of New York sitting in New York County or in the United States District Court of the Southern District of New York, and, by execution and delivery of this Amendment, the Borrower hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts.

(b) The Borrower hereby irrevocably waives any objection that it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Amendment brought in the courts referred to in Section 12(a) above and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

(c) 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 AMENDMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.

(Signature page follows.)

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

THE COOPER COMPANIES, INC.
By:	/s/ Carol R. Kaufman
Name:	Carol R. Kaufman
Title:	Senior Vice President of Legal Affairs,
Secretary and Chief Administrative Officer

KEYBANK NATIONAL ASSOCIATION, as Administrative Agent and as a Lender
By:	/s/ Marianne T. Meil
Name:	Marianne T. Meil
Title:	Senior Vice President

JPMORGAN CHASE BANK, N.A.
By:	/s/ Jana Chiat
Name:	Jana Chiat
Title:	Underwriter

ALLIED IRISH BANKS, P.L.C.

By:

Name:

Title:

BANK OF AMERICA
By:	/s/ John C. Plecque
Name:	John C. Plecque
Title:	Senior Vice President

BNP PARIBAS
By:	/s/ Katherine Wolfe
Name:	Katherine Wolfe
Title:	Managing Director

By:	/s/ Sandy Bertram
Name:	Sandy Bertram
Title:	Vice President

CALYON NEW YORK BRANCH
By:	/s/ Dianne M. Scott
Name:	Dianne M. Scott
Title:	Managing Director

By:	/s/ Gill S. Realon
Name:	Gill S. Realon
Title:	Director

CITICORP NORTH AMERICA, INC.
By:	/s/ James N. Buckman
Name:	James N. Buckman
Title:	Vice President

COMERICA BANK
By:	/s/ Elise Walker
Name:	Elise Walker
Title:	Vice President

GENERAL ELECTRIC CAPITAL CORPORATION
By:	/s/ David Campbell
Name:	David Campbell
Title:	Senior Vice President

HARRIS N.A.
By:	/s/ Todd Kostelnik
Name:	Todd Kostelnik
Title:	Vice President

HSBC BANK USA, NATIONAL ASSOCIATION
By:	/s/ Robert P. Reynolds
Name:	Robert P. Reynolds
Title:	First Vice President

MANUFACTURERS AND TRADERS TRUST COMPANY
By:	/s/ Jon M. Fogle
Name:	Jon M. Fogle
Title:	Vice President

NATIONAL CITY BANK
By:	/s/ Pamela K. Maloney
Name:	Pamela K. Maloney
Title:	Vice President

THE BANK OF NEW YORK

By:

Name:

Title:

THE GOVERNOR & COMPANY OF THE
BANK OF IRELAND

By:

Name:

Title:

SUNTRUST BANK
By:	/s/ Gregory M. Ratliff
Name:	Gregory M. Ratliff
Title:	Vice President

THE BANK OF NOVA SCOTIA
By:	/s/ Dana Maloney
Name:	Dana Maloney
Title:	Managing Director

UNION BANK OF CALIFORNIA, N.A.
By:	/s/ Henry G. Montgomery
Name:	Henry G. Montgomery
Title:	Vice President

WELLS FARGO HSBC TRADE BANK, N.A.
By:	/s/ Juan J. Sanchez
Name:	Juan J. Sanchez
Title:	Vice President

MIZUHO CORPORATE BANK

By:

Name:

Title:

THE ROYAL BANK OF SCOTLAND PLC
By:	/s/ A. Killingbuck
Name:	A. Killingbuck
Title:	Director