Amendment No. 2 to the Amended and Restated Credit Agreement



 Exhibit 10.37 
  
 AMENDMENT NO. 2 
 TO 
 THE AMENDED AND RESTATED CREDIT AGREEMENT 
  
 This Amendment No. 2 to the Amended and Restated Credit Agreement (this “Amendment”) is made as of
October 31, 2006, 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 (the Administrative 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 by Amendment No. 1 to the Amended and Restated
Credit Agreement, dated as of July 31, 2006, among the Borrower, the Lenders party thereto and the Administrative Agent, and as further 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 herein. 
  
 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.    Amendment to Section 7.07(b). Section 7.07(b) of the Credit Agreement is hereby
amended and restated in its entirety as follows: 
  
 (b)    Total Leverage Ratio. The Borrower will not permit at any time the Total Leverage Ratio to be greater than the maximum ratio specified below during the period opposite such maximum ratio: 
  

			
	 Period

	  	Maximum Ratio


	 Closing Date through October 30, 2006
	  	3.75 to 1.00
	 From October 31, 2006 through October 30, 2007
	  	3.25 to 1.00
	 From October 31, 2007 through October 30, 2009
	  	2.50 to 1.00
	 On October 31, 2009 and thereafter
	  	2.00 to 1.00

  
 2.    Conditions Precedent. The amendment 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. 
  
 3.    Representations and Warranties. The Borrower hereby represents and warrants to the Administrative Agent and the Lenders that (a) the Borrower has the legal power and authority to execute and deliver
this Amendment; (b) the officers 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; (e) this Amendment constitutes a valid and binding obligation of the Borrower in every
respect, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights
and by equitable principles (regardless of whether enforcement is sought in equity or at law); and (f) each of the representations and warranties of the Credit Parties contained in the Credit Agreement, as amended by this Amendment, and the
other Loan Documents are true and correct in all material respects as of the date hereof, except to the extent such representations and warranties relate to an earlier specified date, in which case such representations and warranties were true and
correct in all material respects as of such specified date. 
  
 4.    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. 
  
 5.    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. 
  
 6.    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. 
  
 7.    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 7(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:
	 	 /s/ Joseph Augustini

	 Name:
	 	 Joseph Augustini

	 Title:
	 	 Senior Vice President

		
	 By:
	 	 /s/ Margaret Brennan

	 Name:
	 	 Margaret Brennan

	 Title:
	 	 Senior Vice President

	
	 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/ F. Frank Herrera

	 Name:
	 	 F. Frank Herrera

	 Title:
	 	 Director

		
	 By:
	 	 /s/ Richard Laborie

	 Name:
	 	 Richard Laborie

	 Title:
	 	 Director

	
	 CITICORP NORTH AMERICA, INC.

		
	 By:
	 	 /s/ Carrie Stead

	 Name:
	 	 Carrie Stead

	 Title:
	 	 VP











			
	 COMERICA BANK

		
	 By:
	 	 /s/ Don R. Carruth

	 Name:
	 	 Don R. Carruth

	 Title:
	 	 Assistant Vice President

	
	 GENERAL ELECTRIC CAPITAL CORPORATION

		
	 By:
	 	 /s/ David R. Campbell

	 Name:
	 	 David R. Campbell

	 Title:
	 	 Senior Vice President

	
	 HARRIS N.A.

		
	 By:
	 	 /s/ Todd Kastelwik

	 Name:
	 	 Todd Kastelwik

	 Title:
	 	 Vice President

	
	 HSBC BANK USA, NATIONAL ASSOCIATION

		
	 By:
	 	 /s/ Robert P. Reynolds

	 Name:
	 	 Robert P. Reynolds

	 Title:
	 	 First VP & Senior Relationship Manager

	
	 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/ William D. Priester

	 Name:
	 	 William D. Priester

	 Title:
	 	 Director

	
	 THE BANK OF NOVA SCOTIA

		
	 By:
	 	 /s/ Nadine Bell

	 Name:
	 	 Nadine Bell

	 Title:
	 	 Senior Manager

	
	 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/ Alan Swetman

	 Name:
	 	 Alan Swetman

	 Title:
	 	 Head of Large Corporates South East










 SUBSIDIARY GUARANTOR ACKNOWLEDGMENT AND AGREEMENT 
  
 Each of the undersigned (collectively, the “Subsidiary
Guarantors” and, individually, each a “Subsidiary Guarantor”) consents and agrees to and acknowledges the terms of the foregoing Amendment No. 2 to the Amended and Restated Credit Agreement, dated as of
October 31, 2006 (the “Amendment”). Each Subsidiary Guarantor specifically acknowledges the terms of and consents to the amendments set forth in the Amendment. Each Subsidiary Guarantor further agrees that its obligations
pursuant to the Subsidiary Guaranty shall remain in full force and effect and be unaffected hereby. 
  
 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 any of the Subsidiary Guarantors 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. 
  
 EACH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS SUBSIDIARY GUARANTOR ACKNOWLEDGMENT AND AGREEMENT OR THE AMENDMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH SUBSIDIARY GUARANTOR HEREBY CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. 
  
 (Signature page follows.) 
  
  







 IN WITNESS WHEREOF, this Subsidiary Guarantor Acknowledgment and Agreement has been duly executed and
delivered as of the date of the Amendment. 
  

			
	
	 COOPERVISION, INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 COOPERVISION SURGICAL, INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 COOPERSURGICAL, INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 INLET MEDICAL, INCORPORATED

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 NEOSURG TECHNOLOGIES, INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 COOPERVISION TECHNOLOGY LLC

	
	 By: Cooper Captive, Inc. as sole member

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary











			
	
	 COOPERSURGICAL ACQUISITION CORP.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 MEDSCAND (U.S.A.) INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 MEDASONICS, INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 SAGE IN-VITRO FERTILIZATION, INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 UNIMAR, INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 PRISM ENTERPRISES, INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 TCC ACQUISITION CORP.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary











			
	 SUNSOFT CORPORATION

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 INLET MEDICAL, INCORPORATED

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary

	
	 NEOSURG TECHNOLOGIES, INC.

		
	 By:
	 	 /s/ Carol R. Kaufman

	 Name:
	 	 Carol R. Kaufman

	 Title:
	 	 Vice President & Secretary