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EXHIBIT 10.26
AMENDMENT NO. 2
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Amendment No. 2 ("AMENDMENT"), dated as of February 23, 1999,
to that certain Credit Agreement, dated as of September 9, 1998, as amended by
Amendment No. 1 dated as of October 22, 1998 (the "CREDIT AGREEMENT"), among
BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (the "COMPANY" or the
"BORROWER"), the lenders party thereto (the "LENDERS"), and XXXXXXX XXXXX
CAPITAL CORPORATION, a New York banking corporation, as Lead Arranger, The Bank
of Nova Scotia, as Administrative Agent, Wachovia Bank, N.A., as Syndication
Agent, and The Industrial Bank of Japan, as Documentation Agent, with the title
for each of the aforementioned Lenders as set forth in an Acknowledgment dated
October 19, 1998 between the Company and Xxxxxxx Xxxxx Capital Corporation.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to those terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Company has requested the Lenders to amend
certain definitions and covenants in the Credit Agreement; and
WHEREAS, pursuant to Section 10.1 of the Credit Agreement, the
Lenders hereby agree to amend certain definitions and covenants of the Credit
Agreement as set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION ONE
AMENDMENTS
1. DEFINITIONS
Section 1.1 of the Credit Agreement is hereby amended by:
(i) deleting the table with the headings "Rating", "Eurodollar
Loans" and "ABR Loans" under the definition of Ap-
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plicable Margin and substituting the following table in lieu thereof:
"RATING EURODOLLAR LOANS ABR LOANS
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Rating I .240% 0%
Rating II .270% 0%
Rating III .300% 0%
Rating IV .525% 0%
Rating V .625% 0%
Rating VI .825% 0%";
(ii) deleting everything following subclause (ii) on the
second line of the definition of Excess Utilization Day and substituting in lieu
thereof the following:
"(a) with respect to Rating III and above, 50% of the
aggregate amount of the Revolving Credit Commitments hereunder (or with respect
to any day after termination of such Revolving Credit Commitments, 50% of the
aggregate amount of such Revolving Credit Commitments in effect on the date
immediately prior to the date on which such Revolving Credit Commitments
terminated)and (b) with respect to Rating IV and below, 25% of the aggregate
amount of the Revolving Credit Commitments hereunder (or with respect to any day
after termination of such Revolving Credit Commitments, 25% of the aggregate
amount of such Revolving Credit Commitments in effect on the date immediately
prior to the date on which such Revolving Credit Commitments terminated).";
(iii) deleting the table with the headings "Rating" and
"Facility Fee Rate" and substituting the following table in lieu thereof:
"RATING FACILITY FEE RATE
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Rating I .060%
Rating II .080%
Rating III .100%
Rating IV .100%
Rating V .125%
Rating VI .175%";
(iv) deleting "and Rating V" under the definition of Rating
Category and substituting the following language thereof: ", Rating V and Rating
VI";
(v) deleting Rating III, Rating IV and Rating V in the table
under the definition Rating I, Rating II, Rating III,
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Rating IV and Rating V and substituting the following Rating III, Rating IV,
Rating V and Rating VI in lieu thereof:
"Rating III lower than BBB+ and lower than Baal and
greater than or greater than or equal to
equal to BBB Baa2
(A2/P2, or higher)
Rating IV lower than BBB+ and lower than Baal and
greater than or greater than or equal to
equal to BBB Baa2
(A3/P2, or A2/P3, or lower)
Rating V lower than BBB and lower than Baa2 and
greater than or greater than or equal to
equal to BBB- Baa3
Rating VI lower than or equal lower than or equal to Ba1";
to BB+
(vi) deleting "and Rating V" from the name of the defined term
Rating I, Rating II, Rating III, Rating IV, and Rating V and substituting ",
Rating V and Rating VI "in lieu thereof;
(vii) deleting the reference to "Rating V" in subclause (iv)
under the definition of Rating I, Rating II, Rating III, Rating IV and Rating V
and substituting "Rating VI" in lieu thereof;
(viii) adding the following language to the end of the
sentence for the definition of Utilization Fee Rate:
", for Rating III and above; and .125% for Rating IV and
below."
2. NEGATIVE COVENANTS.
Section 7.1 of the Credit Agreement is hereby amended by
deleting from subclause (ii)(y)(1) of Section 7.1 "the date which is six months
after the Closing Date" and substituting in lieu thereof the following clause:
"December 31, 1999".
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SECTION TWO
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective on the date on which the
Administrative Agent shall have received duly executed counterparts hereof from
the Borrower and the Majority Lenders.
SECTION THREE
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants (which representations
and warranties shall survive the execution and delivery hereof) to the Lenders
that:
(i) The Borrower has the corporate power, authority
and legal right to execute, deliver and perform its obligations under this
Amendment and have taken all actions necessary to authorize the execution,
delivery and performance of its obligations under this Amendment; and
(ii) This Amendment has been duly executed and
delivered on behalf of the Borrower by a duly authorized officer of the
Borrower and constitutes a legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally.
SECTION FOUR
MISCELLANEOUS
4.1. Except as herein expressly amended, all provisions of the
Credit Agreement and all other agreements, documents, instruments and
certificates executed in connection therewith are ratified and confirmed in all
respects and shall remain in full force and effect in accordance with their
respective terms.
4.2. This Amendment may be executed by the parties hereto in
one or more counterparts, each of which shall be an original and all of which
shall constitute one and the same agreement.
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4.3. Headings are for convenience only and shall not affect
the construction of this Amendment.
4.4. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be duly executed as of the date first above written.
BOSTON SCIENTIFIC CORPORATION
By:
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Name:
Title:
XXXXXXX XXXXX CAPITAL CORPORATION,
as Lead Arranger and a Lender
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA,
as Administrative Agent and a Lender
By:
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Name:
Title:
WACHOVIA BANK, N.A.,
as Syndication Agent and a Lender
By:
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Name:
Title:
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THE INDUSTRIAL BANK OF JAPAN,
as Documentation Agent and a Lender
By:
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Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH, as a Lender
By:
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Name:
Title:
By:
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Name:
Title:
BANCO CENTRAL HISPANOAMERICANO, S.A.,
as a Lender
By:
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Name:
Title:
LANDESBANK SCHLESWIG-HOLSTEIN GIROZENTRALE,
as a Lender
By:
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Name:
Title:
