SECOND AMENDMENT
EXHIBIT
10.1
SECOND
AMENDMENT, dated as of February 20, 2009 (this “Amendment”), to the
Credit Agreement, dated as of April 21, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among (i) BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (the “Borrower”), (ii) BSC
INTERNATIONAL HOLDING LIMITED, a company incorporated under the laws of Ireland
(the “Term Loan
Borrower”), (iii) the several banks and other financial institutions from
time to time parties thereto (the “Lenders”), (iv)
XXXXXXX XXXXX CAPITAL CORPORATION, as Syndication Agent (the “Syndication Agent”),
(v) BEAR XXXXXXX CORPORATE LENDING INC., DEUTSCHE BANK SECURITIES INC. and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Co-Documentation Agents (each in such
capacity, a “Documentation Agent”,
and collectively, the “Documentation
Agents”), and (vi) BANK OF AMERICA, N.A., as Administrative Agent for the
Lenders thereunder (in such capacity, the “Administrative
Agent”).
W I T N E S S E T
H:
WHEREAS,
the Borrower, the Term Loan Borrower, the Lenders, the Syndication Agent, the
Documentation Agents and the Administrative Agent are parties to the Credit
Agreement; and
WHEREAS,
the Borrowers have requested that the Lenders amend the Credit Agreement as set
forth herein; and
WHEREAS,
the Lenders and the Administrative Agent are willing to agree to such amendment
to the Credit Agreement, subject to the terms and conditions set forth
herein;
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein, the Borrowers, the Lenders and the Administrative Agent hereby agree as
follows:
ARTICLE
I
SECTION
1.1 Defined
Terms. Terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
SECTION
1.2 Amendments to Subsection 1.1
(Definitions). (a) The
definition of the term “Applicable Margin” in subsection 1.1 of the Credit
Agreement is hereby amended to read as follows:
“Applicable
Margin”: with respect to each day for each Type of Loan, the
rate per annum based on the Ratings in effect on such day, as set forth under
the relevant column heading below:
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Revolving
Loans and Term Loans
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Revolving
Loans
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Term
Loans
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Rating
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Eurodollar
Loans/
Multicurrency
Loans
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ABR
Loans
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Eurodollar Loans
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ABR Loans
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Rating
I
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0.800%
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0%
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1.000%
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0%
|
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Rating
II
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0.875%
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0%
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1.125%
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0.125%
|
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Rating
III
|
0.950%
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0%
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1.250%
|
0.250%
|
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Rating
IV
|
1.025%
|
0.025%
|
1.375%
|
0.375%
|
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Rating
V
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1.100%
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0.100%
|
1.500%
|
0.500%
|
|
Rating
VI
|
1.175%
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0.175%
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1.625%
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0.625%
|
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Rating
VII
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1.250%
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0.250%
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1.750%
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0.750%
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(b) The
definition of the term “Consolidated EBITDA” in subsection 1.1 of the Credit
Agreement is hereby amended by replacing the current definition with the
following:
“Consolidated
EBITDA”: of any Person for any period, Consolidated Net Income
of such Person and its Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of
(a)
income tax expense, including any expenses resulting from income tax disputes
with a Governmental Authority,
(b)
Consolidated Interest Expense of such Person and its Subsidiaries, amortization
or writeoff of debt discount and debt issuance costs and commissions, discounts
and other fees and charges associated with Indebtedness,
(c)
depreciation expense,
(d)
amortization or write-down of intangibles (including, but not limited to,
goodwill) and organization costs,
(e) (i)
any extraordinary, unusual or nonrecurring expenses or losses (to the extent any
of the foregoing are non-cash items) (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, losses on sales of assets outside of the ordinary course of
business and including special charges and purchased research and development
charges in connection with acquisitions and other strategic alliances, inventory
step-up charges, and unrealized investment impairments), and (ii) net
litigation-related charges and credits until such items are paid or received (at
such time as such items are paid or received, as applicable, such cash payments
shall be subtracted from Consolidated Net Income and such cash receipts shall be
added to Consolidated Net Income),
(f) any
non-cash stock compensation expense in accordance with FAS123(r),
(g) with
regard to any period ending March 31, 2009 through March 31, 2011 any cash
litigation costs, including judgments, orders, awards, settlements and related
legal costs paid during such period (net of any cash litigation or settlement
payments received during such period) (“Cash Litigation Charges”), provided that, solely
for the purposes of this definition, the aggregate amount of Cash Litigation
Charges under this clause (g) shall not exceed the sum of $1,137,000,000 plus
all cash payments (net of cash receipts) related to amounts that were recorded
in the financial statements of the Borrower before January 1, 2009,
(h) with
regard to any period ending March 31, 2009 through March 31, 2011 any cash or
non-cash charges in respect of restructurings, plant closings, staff reductions,
distributor network optimization initiatives, distribution technology
optimization initiatives or other similar charges, provided that, solely for the
purposes of this definition, the aggregate amount of all charges under this
clause (h) shall not exceed $346,000,000 in the aggregate, and
(i) any
income or expense associated with business combinations following the adoption
of FASB Statement No. 141(R), "Business Combinations - a replacement of FASB
Statement No. 141", which would have been treated as a cost of the acquisition
(e.g., as goodwill) under FASB Statement No. 141, "Business
Combinations",
and minus, to the extent
included in the statement of such Consolidated Net Income for such period, the
sum of
(a)
interest income (except to the extent deducted in determining Consolidated
Interest Expense), and
(b) any
extraordinary, unusual or nonrecurring income or gains (to the extent any of the
foregoing are non-cash items) (including, whether or not otherwise includable as
a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business,
inventory step-up charges, and unrealized investment impairments).
Consolidated
EBITDA shall be calculated on a Pro Forma Basis to give effect to the
Acquisition as if the Acquisition had been effected on the first day of such
period.
(c) The
definition of the term “Excess Utilization Day” in subsection 1.1 of the Credit
Agreement is hereby deleted.
(d) The
definition of the term “Facility Fee Rate” in subsection 1.1 of the Credit
Agreement is hereby amended to read as follows:
“Facility Fee
Rate”: for each day during each calculation period, the rate
per annum based on the Ratings in effect on such day, as set forth
below:
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Rating
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Facility
Fee
Rate
|
|
Rating
I
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0.20%
|
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Rating
II
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0.25%
|
|
Rating
III
|
0.30%
|
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Rating
IV
|
0.35%
|
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Rating
V
|
0.40%
|
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Rating
VI
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0.45%
|
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Rating
VII
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0.50%
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SECTION
1.3 Conditions to
Effectiveness. This
Amendment shall become effective on the date (the “Amendment Effective
Date”) on which (a) the Borrowers, the Administrative Agent and the
Majority Lenders shall have executed and delivered to the Administrative Agent
this Amendment, (b) the Borrowers shall have prepaid, or shall have made
arrangements to prepay substantially simultaneously with this Amendment becoming
effective, the Term Loans in the aggregate amount of not less than $500,000,000
(which prepayment shall be applied in accordance with Section 3.7(a) of the
Credit Agreement, the Lenders hereby agreeing to waive the four Business Day
notice provision set forth in Section 3.1(a)), (c) the Borrower shall have
reduced, or shall have made arrangements to reduce substantially simultaneously
with this Amendment being effective, the aggregate Revolving Credit Commitments
in an amount of not less than $250,000,000 (which reduction shall be made in
accordance with Section 2.9 of the Credit Agreement, the Lenders hereby agreeing
to waive the five Business Day notice provision set forth in such Section) and
(d) all fees payable to Banc of America Securities LLC and any Lender shall have
been paid.
SECTION
1.4 Representation and
Warranties. To induce the Administrative Agent to enter
into this Amendment, each Borrower hereby represents and warrants to the
Administrative Agent and all of the Lenders as of the Amendment Effective Date
that:
(i) Each of
the Borrower and the Term Loan Borrower has the corporate power and authority,
and the legal right, to make and deliver this Amendment and to perform the Loan
Documents, as amended by this Amendment, to which it is a party and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Amendment and the performance of the Loan Documents, as so
amended, to which it is a party.
(ii) No
consent or authorization of, filing with (other than the Borrower’s public
filing of the Amendment on Form 8-K), or notice to or other act by or in respect
of, any Governmental Authority or any other Person is required with respect to
the Borrower or any of its Subsidiaries in connection with the execution and
delivery of this Amendment or with the performance, validity or enforceability
of the Loan Documents, as amended by this Amendment, to which the Borrowers are
party.
(iii) This
Amendment has been duly executed and delivered on behalf of the Borrower and the
Term Loan Borrower.
(iv) This
Amendment and each Loan Document, as amended by this Amendment, to which each of
the Borrowers is a party constitutes a legal, valid and binding obligation of
the Borrower and the Term Loan Borrower enforceable against the Borrowers in
accordance with its terms, subject to the effects of bankruptcy, examination,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(b) Representations and
Warranties. The representations and warranties made by each
Borrower in and pursuant to the Loan Documents are true and correct in all
material respects on and as of the Amendment Effective Date, after giving effect
to the effectiveness of this Amendment, as if made on and as of the Amendment
Effective Date.
SECTION
1.5 Payment of
Expenses. The
Borrower agrees to pay or reimburse the Administrative Agent for all of its
reasonable and documented out-of-pocket costs and expenses incurred in
connection with this Amendment, any other documents prepared in connection
herewith and the transactions contemplated hereby, including, without
limitation, the reasonable and documented fees and disbursements of counsel to
the Administrative Agent.
SECTION
1.6 No Other Amendments;
Confirmation. Except
as expressly amended, modified and supplemented hereby, the provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect.
SECTION
1.7 Governing Law;
Counterparts. (a) This
Amendment and the rights and obligations of the parties hereto shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
New York.
(b) This
Amendment may be executed by one or more of the parties to this Amendment on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. This
Amendment may be delivered by facsimile transmission of the relevant signature
pages thereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
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BOSTON
SCIENTIFIC CORPORATION
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By:
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| Title | |||
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BSC
INTERNATIONAL HOLDING LIMITED
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By:
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| Name | |||
| Title | |||
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BANK
OF AMERICA, N.A.
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as
Administrative Agent and as a Lender
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By:
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| Name | |||
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| as a Lender | |||
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By:
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