EXHIBIT 10.48
CONFORMED COPY
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
dated as of October 30, 2002, and entered into by and among ALLERGAN, INC. (the
"Company"), the banks and other financial institutions signatory hereto that are
parties as Banks to the Credit Agreement referred to below (the "Banks"),
JPMORGAN CHASE BANK, as administrative agent (in such capacity, the
"Administrative Agent"), CITICORP USA INC., as syndication agent, and BANK OF
AMERICA, N.A., as documentation agent.
Recitals
A. The Company, the Banks, and the Agents have entered into that
certain Credit Agreement dated as of October 11, 2002, (the "Credit Agreement"),
by and among the Company, the Eligible Subsidiaries referred to therein, the
Banks party thereto, the Administrative Agent, Citicorp USA Inc., as syndication
agent, and Bank of America, N.A., as documentation agent. Capitalized terms used
in this Amendment without definition shall have the meanings given such terms in
the Credit Agreement.
B. The Company has requested certain amendments to the Credit
Agreement.
C. The Banks and the Administrative Agent are willing to agree to
the amendments requested by the Company, on the terms and conditions set forth
in this Amendment.
Agreement
NOW THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the Company, the Banks, and the Administrative
Agent agree as follows:
1. Amendments to Section 1.01 of the Credit Agreement. The
definition of Consolidated Net Worth contained in Section 1.01 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Consolidated Net Worth" means at any date (i) the
consolidated stockholders' equity of the Company and its Consolidated
Subsidiaries determined as of such date less (ii) (to the extent
reflected in determining such consolidated stockholders' equity) all
write-ups (other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern business made
within twelve months after the acquisition of such business)
subsequent to June 28, 2002 in the book value of any asset owned by
the Company or a Consolidated Subsidiary plus (iii) the amount of the
reduction in such consolidated stockholders' equity which results
directly from the lump sum payment made pursuant to the Settlement
Agreement between the Company, et.al., on the one hand, and Pharmacia
Corporation, et.al., and Columbia University, on the other hand, dated
October 2002, resolving intellectual property disputes involving
1
Lumigan(R) and the lump sum payment relating thereto; provided that
the amount of the addition pursuant to this clause (iii) shall not
exceed $100,000,000.
2. Representations and Warranties. The Company represents and
warrants that:
(a) Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing
under the laws of Delaware, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
(b) Corporate and Governmental Authorization. The execution,
delivery and performance by the Company of this Amendment and the
performance by the Company of the Credit Agreement, as amended by this
Amendment (the "Amended Credit Agreement"), are within the Company's
corporate powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any
governmental body, agency or official under any provision of law or
regulation applicable to the Company, and do not contravene, or
constitute a default under, any provision of law or regulation
applicable to the Company or of the restated certificate of
incorporation or by-laws of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company
or any of its Subsidiaries or result in the creation or imposition of
any Lien on any asset of the Company or any of its Subsidiaries.
(c) Binding Effect. This Amendment and the Amended Credit
Agreement constitute the legal, valid and binding obligations of the
Company.
(d) No Default. Immediately before and after giving effect to
this Amendment, no Default has occurred and is continuing.
3. Effectiveness. This Amendment shall be effective on the date
when this Amendment shall have been signed by, and counterparts hereof shall
have been delivered to the Administrative Agent (by hand delivery, mail or
telecopy), the Company and the Required Banks.
2
4. Effect of Amendment; Ratification. From and after the date on
which this Amendment becomes effective, all references to the Credit Agreement
shall mean the Credit Agreement as amended hereby. Except as expressly amended
hereby or waived herein, the Credit Agreement and the Notes shall remain in full
force and effect, and all terms and provisions thereof are hereby ratified and
confirmed. The Company confirms that as amended hereby, each of the Amended
Credit Agreement and the Notes is in full force and effect.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
6. Counterparts; Integration. This Amendment maybe signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Amendment constitutes the entire agreement and understanding among the parties
hereto and supersedes and any all prior agreements and understandings, oral or
written, related to the subject matter hereof.
3
IN WITNESS WHEREOF, each of the undersigned has duly executed
this First Amendment to Credit Agreement as of the date set forth above.
ALLERGAN, INC.
By: /s/ Eric K. Brandt
Name: Eric K. Brandt
Title: Corporate Vice President and Chief
Financial Officer
By: /s/ James M. Hindman
Name: James M. Hindman
Title: Senior Vice President, Treasury,
Risk and Investor Relations
JPMORGAN CHASE BANK
By: /s/ Dawn Lee Lum
Name: Dawn Lee Lum
Title: Vice President
CITICORP USA, INC.
By: /s/ Deborah Ironson
Name: Deborah Ironson
Title: Vice-President
S-1
BANK OF AMERICA, N.A.
By: /s/ Joseph L. Corah
Name: Joseph L. Corah
Title: Principal
BANK ONE, NA
By: /s/ Joseph Perdenza
Name: Joseph Perdenza
Title: Director
S-2