AMENDED AND RESTATED SUPPLEMENTAL INDENTURE NO. 8
Exhibit
(4)-k
AMENDED
AND RESTATED
SUPPLEMENTAL
INDENTURE NO. 8
This
Amended and Restated Supplemental Indenture No. 8 (“Supplemental Indenture”),
effective as of November 8, 2006, is between Bausch & Lomb Incorporated (the
“Company”) and Citibank, N.A., as trustee (the “Trustee”), and amends and
restates Supplemental Indenture No. 8, dated as of November 8, 2006 between
the
Company and the Trustee and the Indenture, dated as of September 1, 1991,
between the Company and the Trustee, as amended by Supplemental Indenture,
dated
as of May 13, 1998, Supplemental Indenture No. 2, dated July 29, 1998,
Supplemental Indenture No. 3, dated November 21, 2002, Supplemental
Indenture No. 4, dated August 1, 2003, Supplemental Indenture No. 5, dated
August 4, 2003, Supplemental Indenture No. 6, dated December 20, 2004, and
Supplemental Indenture ▇▇. ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇, ▇▇▇▇ (▇▇ so amended, the
“Original Indenture”), with respect to the following series of Securities issued
under the Original Indenture and various indentures supplemental
thereto:
6.95%
Notes due 2007 (CUSIP No. ▇▇▇▇▇▇▇▇▇)
5.90%
Notes due 2008 (CUSIP No. ▇▇▇▇▇▇▇▇▇)
2004
Senior Convertible Securities due August 1, 2023 (CUSIP No.
▇▇▇▇▇▇▇▇▇)
Floating
Rate Convertible Senior Notes due August 1, 2023 (CUSIP No.
▇▇▇▇▇▇▇▇▇)
6.56%
Medium-term Notes, Series B due 2026 (CUSIP No. ▇▇▇▇▇▇▇▇▇)
7.125%
Debentures due 2028 (CUSIP No. ▇▇▇▇▇▇▇▇▇)
The
foregoing Securities are referred to herein as the “Affected Securities” and no
series of Securities are amended or otherwise affected by this Supplemental
Indenture other than the Affected Securities. Capitalized terms used in this
Supplemental Indenture and not defined are used with the meanings given to
such
terms in the Original Indenture. This Supplemental Indenture is effective as
of
the date hereof.
WHEREAS,
Section 902 of the Original Indenture provides that the Company and the Trustee
may enter into a supplemental indentures for the purposes of adding any
provisions to or changing in any manner or eliminating any of the provisions
of
the Original Indenture or of modifying in any manner the rights of the Holders
of Securities of each series with the consents of the Holders of not less than
a
majority in principal amount of each series affected by such supplemental
indenture; and
WHEREAS,
the Company has received written consents of the Holders of not less than a
majority in principal amount of each series of the Affected Securities to the
amendments to the Original Indenture set forth in this Supplemental Indenture
and related waivers with respect to such series;
WHEREAS,
original Supplemental Indenture No. 8 inadvertently omitted a clause from the
amendments to Section 704 which was approved by the Holders of not less than
a
majority in principal amount of each series of Affected Securities; and
WHEREAS,
all other things necessary in order to execute and deliver this Amended and
Restated Supplemental Indenture and effect the amendments set forth herein
have
been obtained;
NOW,
THEREFORE, in order to amend the terms of the Original Indenture with respect
to
all outstanding Securities of each series of the Affected Securities, in
consideration of the premises, it is mutually agreed by the Company and the
Trustee, for the equal and ratable benefit of all Holders of the Affected
Securities, as follows:
1. Supplemental
Indenture.
This
Supplemental Indenture supplements and amends the Original Indenture, as
modified by the applicable supplemental indenture(s) with respect to each series
of Affected Securities, as set forth below:
(a) The
2004
Senior Convertible Securities due August 1, 2023, issued pursuant to
Supplemental Indenture No. 6, dated as of December 20, 2004 (the “Senior
Convertible Securities”);
(b) The
Floating Rate Convertible Senior Notes due August 1, 2023, issued pursuant
to Supplemental Indenture No. 5, dated as of August 4, 2003 (the “Convertible
Senior Notes”);
(c) The
7.125% Debentures due 2028, issued pursuant to Supplemental Indenture
No. 2, dated July 29, 1998 (the “2028 Debentures”);
(d) The
6.95%
Notes due 2007, issued pursuant to Supplemental Indenture No. 3, dated November
21, 2002 (the “2007 Notes”);
(e) The
5.90%
Notes due 2008, issued pursuant to Supplemental Indenture No. 4, dated August
1,
2003 (the “2008 Notes”); and
(f) The
6.56%
Medium-Term Notes, Series B due 2026, issued pursuant to the original
indenture.
The
Senior Convertible Securities and the Convertible Senior Notes are sometimes
collectively referred to in the Supplemental Indenture as the “Convertible
Securities” and the 2028 Debentures, the 2007 Notes and the 2008 Notes are
sometimes collectively referred to herein as the “Notes”.
2. Definitions.
Section
101 of the Original Indenture is hereby amended to add the following definitions
in appropriate alphabetical order:
“Consent
Fee” means the payment defined as such with respect to the Affected Securities
in the Solicitation Documents.
“Covenant
Reversion Date” means 5:30 p.m., New York City time, on the earlier of
(i) the Business Day following the Company’s failure to pay the Consent
Fee, if due, for the Affected Securities in accordance with the Solicitation
Documents, and (ii) January 31, 2007.
“Solicitation
Documents” means the Company’s Consent Solicitation Statement, dated as of
September 20, 2006, and the related Consent Form, each as may be amended
and supplemented from time to time.
2. Defaults.
(a) Clause
(4) of Section 501 of the Original Indenture is hereby amended to read in its
entirety as follows:
(4) except
as
otherwise provided in this Section 501, default in the performance, or
breach, of any covenant or warranty of the Company in this Indenture (other
than
a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a period of
60
days after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
10%
in principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or
(b) The
following language is hereby added at the end of Section 501:
Notwithstanding
any of the foregoing, the failure of the Company to comply with Sections 704
and
1004 of this ▇▇▇▇▇▇▇▇▇, ▇▇ §▇▇▇ of the Trust Indenture Act, before 5:30 p.m.,
New York City time on the Covenant Reversion Date shall not constitute an Event
of Default under clause (4) above.
3. Reports
by Company.
Section
704 of the Original Indenture is hereby amended to read in its entirety as
follows:
Section
704: Reports
by Company.
The
Company shall, except as otherwise provided in this Section 704,
file
with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission. Notwithstanding
any other provision of this Section 704 or this Indenture, the documents and
reports referred to in this Section 704 that the Company would have been
required to file with the Commission or the Trustee on any date on or before
the
Covenant Reversion Date but for this sentence will not be required to be filed
the Company until the Covenant Reversion Date and the filing by the Company
of
its Annual Report on Form 10-K for December 31, 2005 shall satisfy the
requirement to file reports for any periods prior to December 31,
2005.
4. Statement
by Officers as to Default.
Section
1004 of the Original Indenture is hereby amended to read in its entirety as
follows:
Section
1004: Statement
by Officers as to Default.
The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall
be
in default, specifying all such defaults and the nature and status thereof
of
which they may have knowledge. Notwithstanding any other provision of this
Section 1004 or this Indenture, the Company will have no obligation to
deliver an Officer’s Certificate, as referred to in the preceding sentence,
relating to the breach of a covenant contained in Sections 704 or 1004 of this
Indenture that occurred prior to the Covenant Reversion Date.
5. Waiver
of Past Defaults.
Pursuant to Section 513 of the Original Indenture, the Holders of a majority
in
aggregate principal amount of the relevant series of the Affected Securities
have waived all defaults with respect to any breaches of Sections 501(4),
704 and 1004 of the Original Indenture and any defaults that shall have occurred
with prior to the effective date of this Supplemental Indenture are deemed
to
have been cured for all purposes.
6. Miscellaneous.
(a) Recitals
by the Company. The recitals in this Supplemental Indenture are made by the
Company only and not by the Trustee, and all of the provisions contained in
the
Original Indenture in respect of the rights, privileges, immunities, powers
and
duties of the Trustee shall be applicable in respect of the Affected Securities
and of this Supplemental Indenture as fully and with like effect as if set
forth
herein in full.
(b) Ratification
and Incorporation of Original Indenture. As supplemented hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
(c) Executed
in Counterparts. This Supplemental Indenture may be executed in several
counterparts, each of which shall be deemed to be an original, and such
counterparts shall together constitute but one and the same
instrument.
(d) Governing
Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CHOICE
OF LAW PRINCIPLES THEREOF.
IN
WITNESS WHEREOF, each party hereto has caused this instrument to be signed
in
its name and behalf by its duly authorized officers, to be effective as of
the
day and year first above written.
BAUSCH
& LOMB INCORPORATED
By:
/s/▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President and Treasurer
January
23, 2007
Attest:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇
▇.
▇▇▇▇▇▇
Title: Secretary
CITIBANK,
N.A.,
as
Trustee
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇
▇.
▇▇▇▇▇▇, ▇▇.
Title: Vice
President
January
24, 2007
Attest:
/s/
▇▇▇▇▇ ▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇
Title: Vice
President