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EXHIBIT 10.9
AMENDMENT NO. 1
TO CREDIT AGREEMENT
Amendment, dated as of September 30, 1994 to the Credit Agreement
dated as of December 22, 1993 (the "Agreement") among Allergan, Inc. (the
"Borrower"), the Banks listed on the signature pages hereof, Morgan Guaranty
Trust Company of New York (the "Agent") and Bank of America National Trust and
Savings Association (the "Co-Agent") in the original aggregate principal amount
of $150,000,000.
The parties hereto desire to amend the Agreement subject to the terms
and conditions of this Amendment, as hereinafter provided. Accordingly, the
parties hereto agree as follows:
1. Definitions. Except as otherwise defined herein, capitalized terms
used herein have the respective meanings assigned to them in the Agreement.
2. Amendments.
(A) The definition of "Commitment" set forth in Section 1.01
of the Agreement is amended to read in its entirety as follows:
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages of Amendment No. 1 dated September 30, 1994 to
the Agreement, as such amount may be reduced from time to time
pursuant to Section 2.09.
(B) The definition of "Commitment Fee Rate" set forth in
Section 1.01 of the Agreement is deleted.
(C) The definition of "Level III Status" set forth in Section
1.01 of the Agreement is amended to read in its entirety as follows:
"Level III Status" exists at any date if, at such
date, (i) the Borrower's outstanding senior unsecured
long-term debt securities are rated BBB+ or higher by S&P and
Baa1 or higher by Moody's and (ii) neither Level I Status nor
Level II Status exists.
(D) The definition of "Level IV Status" set forth in Section
1.01 of the Agreement is amended to read in its entirety as follows:
"Level IV Status" exists at any date if, at such
date, (i) the Borrower's outstanding senior unsecured
long-term debt securities are rated BBB or higher by S&P and
Baa2 or higher by Moody's and (ii) none of Level I Status,
Level II Status or Level III Status exists.
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(E) Section 1.01 of the Agreement is amended by
alphabetically inserting the term "Level V Status", which shall read in its
entirety as follows:
"Level V Status" exists at any date if, at such date,
none of Level I Status, Level II Status, Level III Status or
Level IV Status exists.
(F) The definition of "Termination Date" set forth in Section
1.01 of the Agreement is amended by deleting the reference to "December 22,
1998" and by inserting "September 30, 1999" in lieu thereof.
(G) The definition of "CD Margin" set forth in Section
2.07(b) of the Agreement is amended to read in its entirety as follows:
"CD Margin" means (i) 0.295% for any day on which
Level I Status exists, (ii) 0.325% for any day on which Level
II Status exists, (iii) 0.375% for any day on which Level III
Status exists, (iv) 0.425% for any day on which Level IV
Status exists and (v) 0.500% for any day on which Level V
Status exists.
(H) The definition of "Euro-Dollar Margin" set forth in
Section 2.07(c) of the Agreement is amended to read in its entirety as follows:
"Euro-Dollar Margin" means (i) 0.170% for any day on
which Level I Status exists, (ii) 0.20% for any day on which
Level II Status exists, (iii) 0.250% for any day on which
Level III Status exists, (iv) 0.30% for any day on which Level
IV Status exists and (v) 0.375% for any day on which Level V
Status exists.
(I) The definition of "Facility Fee Rate" set forth in Section
2.08(a) of the Agreement is amended to read in its entirety as follows:
"Facility Fee Rate" means (i) 0.080% per annum for
any day on which Level I Status exists, (ii) 0.10% per annum
for any day on which Level II Status exists, (iii) 0.125% per
annum for any day on which Level III Status exists, (iv)
0.175% per annum for any day on which Level IV Status exists
and (v) 0.250% per annum for any day on which Level V Status
exists.
(J) Section 2.08(b) of the Agreement is deleted and left
intentionally blank.
(K) Section 5.07 of the Agreement is amended to read in its
entirety as follows:
SECTION 5.07 Subsidiary Debt. The Borrower will not
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permit any Subsidiary to incur or suffer to exist any Debt
(excluding Debt owed to the Borrower or a Wholly-Owned
Subsidiary) in excess of 20% of Consolidated Net Worth at any
time in the aggregate for all Subsidiaries.
3. Representations. The Borrower hereby confirms and repeats
each of the representations and warranties set forth in the Agreement on
and as of the date of this Amendment as if made on and as of such date and
as if each reference therein to the Agreement referred to the Agreement as
modified hereby, and represents and warrants that no Event of Default or other
event which, with the giving of notice or the lapse of time, or both, would
constitute such an Event of Default has occurred and is continuing.
4. Agreement as Amended. Except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the terms
thereof.
5. Governing Law. This Amendment, and the Agreement as amended
hereby, shall be construed in accordance with and governed by the laws of the
State of New York.
6. Severability. In case any one or more of the provisions
contained in this Amendment would be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
7.Counterparts; Effective Date. This amendment may be executed in
any number of counterparts, each of which shall constitute an original but all
of which when taken together shall constitute one and the same instrument.
This Amendment shall become effective as of the date first above written upon
receipt by the Agent of (i) counterparts hereof executed by each of the parties
hereto and (ii) the Notes, duly executed and delivered by the Borrower,
evidencing the increased Commitments of the Banks and the obligation of the
Borrower to repay any Loans.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized officers as of the day and year first
above written.
ALLERGAN, INC.
By: /s/ JEFFREY L. EDWARDS
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Vice President & Treasurer
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Commitments
$48,375,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ ADAM J. SILVER
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Adam J. Silver
Title: Associate
$46,125,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ MARK F. MILNER
----------------------------------
Mark F. Milner
Title: Managing Director
$46,125,000 CITICORP USA, INC.
By: /s/ BARBARA A. COHEN
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Barbara A. Cohen
Title: Vice President
$28,125,000 ABN AMRO BANK N.V.
LOS ANGELES INTERNATIONAL
BRANCH
By: /s/ JOHN A. MILLER
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John A. Miller
Title: Vice President
By: /s/ ELLEN M. COLEMAN
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Ellen M. Coleman
Title: Assistant Vice President
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$28,125,000 UNION BANK OF SWITZERLAND
By: /s/ THOMAS G. JACKSON
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Thomas G. Jackson
Title: First Vice President
By: /s/ PETER S. HUMBER
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Peter S. Humber
Title: Vice President
$28,125,000 WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ TERRY L. AKINS
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Terry L. Akins
Title: Senior Vice President
Total Commitments
$225,000,000
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, As Agent
By: /s/ ADAM J. SILVER
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Adam J. Silver
Title: Associate
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
As Co-Agent
By: /s/ MARK F. MILNER
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Mark F. Milner
Title: Managing Director