Exhibit 10.13


 


THIRD AMENDMENT

TO CREDIT AGREEMENT


 


This Third Amendment to Credit Agreement is entered into as of December
29, 2003 (the “Amendment”), by and among OCULAR SCIENCES, INC. (“Borrower”),
and COMERICA BANK, a Michigan banking corporation, successor by merger to
Comerica Bank-California, as the Agent for the Lenders (“Bank”).


 


RECITALS


 


Borrower, Bank, and Lenders are parties to that certain Credit Agreement
dated as of April 16, 2002, as amended from time to time, including by that
certain First Amendment to Credit Agreement entered into as of March 30, 2003
and that certain Second Amendment to Credit Agreement entered into as of
October 22, 2003 (collectively, the “Agreement”). The parties desire to amend
the Agreement as set forth herein.


 


NOW, THEREFORE, the parties agree as follows:


 


1.                                       The
following defined term in the Agreement hereby is amended and restated in its
entirety to read as follows:


 


“Collateral
means all property which at any time is subject or is to become subject to any
Lien granted or created under any of the Collateral Documents; provided,
however, that any shares of capital stock or other securities, or
warrants or options to acquire capital stock or other securities of Ocular
Japan (collectively, the “Japan Securities”) shall not at any time constitute
part of the Collateral; provided, further, that to the extent any
consensual Lien in the Japan Securities is granted to any person, such Lien
shall be (i) at least pari passu and pro rata with any Lien to be
granted to Bank with respect to the Japan Securities, and (ii) subject to an
intercreditor agreement in form and content reasonably satisfactory to Bank.”


 


2.                                       Section
4.1(t) of the Agreement hereby is amended and restated in its entirety to read
as follows:


 


“(t) No Negative Pledges.  Except with respect to the OSJ Facility,
neither Borrower nor any of its Subsidiaries are parties to or subject to any
agreement, document or instrument which would restrict or prevent them from
granting first priority Liens upon their assets to the Agent and the Lender
Group, except the agreements, documents or instruments existing on the Closing
Date pursuant to which Liens not prohibited by the terms of this Agreement have
been created.”


 


3.                                       New
Section 5.3(c)(xi) hereby is added to the Agreement to
read as follows:


 


“(xi)         Investments
by Borrower under the OSJ Facility.”


 
















 


4.                                       Section
5.3(g)(iii) of the Agreement hereby is amended and
restated in its entirety to read as follows:


 


“(iii)        except
as set forth in the OSJ Facility on the date of this Amendment, enter into any
agreement restricting the ability of any Subsidiary of Borrower to declare or
make any dividend payment or other distribution of assets, properties, cash,
rights, obligations or securities to its stockholders (other than as permitted
in Section 5.3(m));”


 


5.                                       Section
5.3(1) of the Agreement hereby is amended and restated in its entirety to read
as follows:


 


“(1)         Negative
Pledge.  Except
with respect to the OSJ Facility, enter into, or be subject to, any agreement,
document or instrument under which Borrower or any of its Subsidiaries, except
as provided hereunder, agrees and covenants with the Person party thereto that
Borrower or such Subsidiary shall not grant first priority Liens upon their
assets to any other Person.”


 


6.                                       Section
5.3(m) of the Agreement hereby is amended and restated in its entirety to read
as follows:


 


“(m)        Payment
Restrictions Affecting Subsidiaries.  Except with respect to the OSJ Facility,
cause, permit or suffer any Subsidiary to become or remain subject to any
contractual obligation that in any manner limits or restricts its right to pay
dividends or make distributions, whether in cash or in property, to its
stockholders or to make loans or sell assets to Borrower or any of its
Subsidiaries or to enter into any other lawful transaction with Borrower or any
of its Subsidiaries, except limitations and restrictions set forth in the Loan
Documents.”


 


7.                                       Bank
shall cause to be filed, within ten (10) days of the date of this Amendment, a
UCC Financing Statement Amendment, amending the Collateral description to
conform to amended definition herein.


 


8.                                       Unless
otherwise defined, all capitalized terms in this Amendment shall be as defined
in the Agreement. Except as amended, the Agreement remains in full force and effect.
The Pledge Agreement remains in full force and effect.


 


9.                                       Borrower
represents and warrants that the representations and warranties contained in
the Agreement and the Pledge Agreement are true and correct as of the date of
this Amendment, and that no Event of Default has occurred or is continuing.


 


10.                                 This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one instrument.


 


2
















 


11.                                 As a
condition to the effectiveness of this Amendment, Bank shall have received, in
form and substance satisfactory to Bank, the following:


 


(a)           this
Amendment, duly executed by Borrower;


 


(b)           an
amount equal to all Bank Expenses incurred to date; and


 


(c)           such
other documents, and completion of such other matters, as Bank may reasonably
deem necessary or appropriate.


 


 


[Balance of Page Intentionally Left Blank]


 


3
















 


IN WITNESS WHEREOF, the undersigned
have executed this Amendment as of the first date above written.


 


	
   

  	
  OCULAR
  SCIENCES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Steven M. Neil

  	
   

  
	
   

  	
  Name:

  	
  Steven
  M. Neil

  	
   

  
	
   

  	
  Title:
  CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMERICA
  BANK, successor by merger to Comerica Bank-California,

  as Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  John Esposito

  	
   

  
	
   

  	
  Name:
  

  	
  John
  Esposito

  	
   

  
	
   

  	
  Title:
  

  	
  Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  NORTHERN TRUST COMPANY,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Patricia A. Williams

  	
   

  
	
   

  	
  Name:
  

  	
  Patricia
  A. Williams

  	
   

  
	
   

  	
  Title:
  

  	
  Vice
  President

  	
   

  
									



 


 


[Signature
Page to Third Amendment to Credit Agreement]


 


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