EXHIBIT 10.56
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of May 26, 2004, 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 (as heretofore amended,
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 modifications to the provisions
of the Credit Agreement.
C. The Banks and the Administrative Agent are willing to agree to the
modifications 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. Amendment to Section 1.01 of the Credit Agreement.
(a) The definition of "Termination Date" contained in Section 1.01 of the
Credit Agreement is hereby amended by changing the date specified
therein from "October 11, 2007" to "May 26, 2009".
(b) The definition of "Adjusted Cash" contained in Section 1.01 of the
Credit Agreement is hereby amended by adding the following immediately
prior to the period at the end of such definition:
"; provided that if the Company gives written notice to the
Administrative Agent that it will prefinance the redemption of its
Zero Coupon Convertible Senior Notes Due 2022 then for the period from
the date of such notice to the earlier of (x) November 30, 2007 and
(y) the date that all of the Zero Coupon Convertible Notes Due 2022
have been paid in full or converted, (a) the percentage of cash and
cash equivalents of the Company included in calculating Adjusted
Cash shall be increased from 70% to 100% and (b) the limitation on the
amount of Adjusted Cash with respect to cash and cash equivalents
owned by the Company shall be increased from $150,000,000 to
$500,000,000."
2. Changes in Commitments. With effect from and including the
Amendment Effective Date, (i) each Person listed on the signature pages hereof
which is not a party to the Credit Agreement (each, a "NEW BANK") shall become a
Bank party to the Credit Agreement, (ii) the Commitment of each Bank shall be
the amount set forth opposite the name of such Bank on the Commitment Schedule
annexed hereto (the "NEW COMMITMENT SCHEDULE") and (iii) the New Commitment
Schedule shall replace the Commitment Schedule to the Credit Agreement. On the
Amendment Effective Date, any Bank not listed in the New Commitment Schedule
(each, an "EXITING BANK", and each New Bank or Bank other than an Exiting Bank,
a "CONTINUING BANK") shall cease to be a Bank party to the Credit Agreement, and
all accrued fees and other amounts payable under the Credit Agreement for the
account of each Exiting Bank shall be due and payable on such date; provided
that the provisions of Sections 7.06, 8.03, 8.04 and 11.03 of the Credit
Agreement shall continue to inure to the benefit of each Exiting Bank after the
Amendment Effective Date.
3. 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.
2
4. Effectiveness. This Amendment shall be effective as of the date
hereof (the "AMENDMENT EFFECTIVE DATE"), subject to satisfaction of the
following conditions:
(a) the Administrative Agent shall have received from each of the
Company and the Banks a counterpart hereof signed by such party or
facsimile or other written confirmation (in form satisfactory to the
Administrative Agent) that such party has signed a counterpart hereof;
(b) the Administrative Agent shall have received an opinion of
Douglas S. Ingram, Esq., Executive Vice President, General Counsel and
Secretary of the Company, dated as of the Amendment Effective Date, in form
and substance reasonably satisfactory to the Administrative Agent; and
(c) the Administrative Agent shall have received from the Company
(i) for the account of the Continuing Banks, 0.05% of the amount of their
respective Commitments after giving effect to this Amendment and (ii) all
other amounts due and payable to the Administrative Agent.
5. 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.
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
7. Counterparts; Integration. This Amendment may be 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 any and 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
Fourth Amendment to Credit Agreement as of the date set forth above.
ALLERGAN, INC.
By: /s/ Eric K. Brandt
------------------------------------
Name: Eric K. Brandt
Title: Executive Vice President,
Finance, Strategy & Corporate
Development (Principal Financial
Officer)
By: /s/ James M. Hindman
------------------------------------
Name: James M. Hindman
Title: Sr. Vice President, Treasury,
Risk and Investor Relations
JPMORGAN CHASE BANK
By: /s/ Laura J. Cumming
------------------------------------
Name: Laura J. Cumming
Title: Vice President
CITICORP USA, INC.
By: /s/ Carolyn Wendler
------------------------------------
Name: Carolyn Wendler
Title: Managing Director and Vice
President
BANK OF AMERICA, N.A.
By: /s/ Kevin R. Wagley
------------------------------------
Name: Kevin R. Wagley
Title: Principal
S-1
BANK ONE, NA
By: /s/ L. Richard Schiller
------------------------------------
Name: L. Richard Schiller
Title: Director
MORGAN STANLEY BANK
By: /s/ Daniel Twenge
------------------------------------
Name: Daniel Twenge
Title: Vice President
Morgan Stanley Bank
S-2
COMMITMENT SCHEDULE
LENDER COMMITMENT
JPMorgan Chase Bank $75,000,000
Citicorp USA, Inc. $120,000,000
Bank of America, N.A. $120,000,000
Bank One, NA $45,000,000
Morgan Stanley Bank $40,000,000
ABN-AMRO Bank N.V. $0
S-3