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EXHIBIT 10.21
AMENDMENT
AMENDMENT, dated as of February 23, 1999 (this "AMENDMENT"), to the
Second Amended and Restated Credit Agreement, dated as of September 4, 1998 (the
"CREDIT AGREEMENT"), among (i) BOSTON SCIENTIFIC CORPORATION, a Delaware
corporation (the "BORROWER"), (ii) the several banks and other financial
institutions from time to time parties thereto (the "LENDERS"), (iii) ABN AMRO
BANK N.V., a Dutch banking corporation, BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, a national banking association, and BARCLAYS BANK PLC, a
banking corporation organized under the laws of England, as Syndication Agents
(each in such capacity, a "SYNDICATION AGENT", and collectively, the
"SYNDICATION AGENTS"), (iv) CHASE SECURITIES INC., as Arranger (in such
capacity, the "ARRANGER") and as Book Manager (in such capacity, the "BOOK
MANAGER") and (v) THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders hereunder (in such capacity, the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make certain extensions of credit to the Borrower; and
WHEREAS, the Borrower and Lenders have agreed that certain provisions
of the Credit Agreement will be amended in the manner provided for in this
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. DEFINED TERMS. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
II. AMENDMENTS TO CREDIT AGREEMENT.
1. Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definitions of "APPLICABLE MARGIN", "EXCESS UTILIZATION DAY", "FACILITY FEE
RATE", "RATING CATEGORY," "RATING I, RATING II, RATING III, RATING IV AND RATING
V", and "UTILIZATION FEE RATE", and replacing such definitions with those listed
in Annex A attached hereto.
2. Subsection 8.1 of the Credit Agreement is hereby amended by deleting
therefrom clause (ii) (y)(1) and substituting in lieu thereof the following
clause:
"(y)(1) December 31, 1999 and"
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3. Subsection 12.6 of the Credit Agreement is hereby amended by adding
thereto a new clause (h), attached hereto as Annex B.
III. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date (the "AMENDMENT EFFECTIVE DATE") on which the Borrower,
the Administrative Agent and the Majority Lenders shall have executed and
delivered to the Administrative Agent this Amendment.
IV. GENERAL.
1. REPRESENTATION AND WARRANTIES. To induce the Administrative
Agent and the Lenders parties hereto to enter into this Amendment, the Borrower
hereby represents and warrants to the Administrative Agent and all of the
Lenders as of the Amendment Effective Date that:
(a) CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
(1) The Borrower has the corporate power and authority, and the
legal right, to make, deliver this Amendment and to perform the Loan Documents,
as amended by this Amendment, 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.
(2) No consent or authorization of, approval by, notice to, filing
with or other act by or in respect of, any Governmental Authority or any other
Person is required 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.
(3) This Amendment has been duly executed and delivered on behalf
of the Borrower.
(4) This Amendment and each Loan Document, as amended by this
Amendment, constitutes a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
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 the Borrower in the Loan Documents (other than in Section 5.2
and 5.6 of the Credit Agreement) 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, except as otherwise disclosed in the most recent filings by the Borrower
with the Securities and Exchange Commission.
2. PAYMENT OF EXPENSES. The Borrower agrees to pay or reimburse
the Administrative Agent for all of its out-of-pocket costs and reasonable
expenses incurred in connection with this Amendment, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Agent.
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3. 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.
4. 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 Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Amendment signed by all the parties
shall be lodged with the Borrower and the Administrative Agent.
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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.
BOSTON SCIENTIFIC CORPORATION
By:
----------------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By:
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Name:
Title:
ABN AMRO BANK N.V.
By:
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Name:
Title:
By:
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Name:
Title:
5
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By:
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Name:
Title:
BARCLAYS BANK PLC
By:
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Name:
Title:
ALLIED IRISH BANKS, P.L.C.
By:
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Name:
Title:
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
6
BANCA MONTE DEI PASCHI DI SIENA S.P.A.
By:
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Name:
Title:
BANK BOSTON, N.A.
By:
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Name:
Title:
BANK OF IRELAND
By:
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Name:
Title:
BANK OF NEW YORK
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST CO.
By:
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Name:
Title:
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BANKERS TRUST
By:
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Name:
Title:
BANQUE NATIONALE DE PARIS
By:
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Name:
Title:
By:
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Name:
Title:
COMMERZBANK A.G.
By:
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Name:
Title:
By:
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Name:
Title:
CORESTATES BANK, N.A.
By:
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Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By:
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Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO
By:
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Name:
Title:
FLEET NATIONAL BANK
By:
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Name:
Title:
THE FUJI BANK, LIMITED
By:
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Name:
Title:
MELLON BANK, N.A.
By:
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Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By:
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Name:
Title:
NATIONSBANK, N.A.
By:
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Name:
Title:
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THE SANWA BANK, LIMITED
By:
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Name:
Title:
SVENSKA HANDELSBANKEN
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
----------------------------------------------------
Name:
Title:
UBS AG, NEW YORK BRANCH
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
10
U.S. BANK, N.A.
By:
----------------------------------------------------
Name:
Title:
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ANNEX A
to Amendment to
the Second Amended and Restated Credit Agreement
"APPLICABLE MARGIN": with respect to each day for each Type of Loan,
the rate per annum (bps) based on the Ratings in effect on such day, as set
forth under the relevant column heading below:
EURODOLLAR LOANS
RATING /MULTICURRENCY LOANS ABR LOANS
Rating I 22.0 0
Rating II 25.0 0
Rating III 27.5 0
Rating IV 50.0 0
Rating V 57.5 0
Rating VI 75.0 0
"EXCESS UTILIZATION DAY": any day on which (i) the sum of the Aggregate
Total Outstandings of all Lenders, PLUS the Aggregate Total Outstandings of all
Lenders under (and as defined in) the 364-Day Agreement, exceeds, (ii) (a) with
respect to Ratings Category III and above, 50% of the aggregate amount of the
Revolving Credit Commitments hereunder and the Revolving Credit Commitments
under (and as defined in) the 364-Day Agreement (or, in each case, 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 Ratings Category IV and below, 25% of the
aggregate amount of the Revolving Credit Commitments hereunder and the Revolving
Credit Commitments under (and as defined in) the 364-Day Agreement (or, in each
case, 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).
"FACILITY FEE RATE": for each day during each calculation period, the
rate per annum (bps) based on the Ratings in effect on such day, as set forth
below:
FACILITY
RATING FEE RATE
------ ---------
Rating I 8.0
Rating II 10.0
Rating III 12.5
Rating IV 12.5
Rating V 17.5
Rating VI 25.0
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"RATING CATEGORY": each of Rating I, Rating II, Rating III, Rating IV,
Rating V and Rating VI.
"RATING I, RATING II, RATING III, RATING IV, RATING V AND RATING IV":
the respective Ratings set forth below:
RATING
CATEGORY S&P XXXXX'X
Rating I greater than or greater than or
equal to A- equal to A3
Rating II lower than A- lower than A3
and greater than and greater than or
or equal to BBB+ equal to Baa1
Rating III lower than BBB+ lower than Baa1
and greater than and greater than or
or equal to BBB equal to Baa2
(A2/P2, or higher)
Rating IV lower than BBB+ lower than Baa1
and greater than and greater than or
or equal to BBB equal to Baa2
(A3/P2 or A2/P3, or lower)
Rating V lower than BBB lower than Baa2
and greater than and greater than or
or equal to BBB- equal to Baa3
Rating VI lower than or equal lower than or equal
to BB+ to Ba1
; PROVIDED, that (i) if on any day the Ratings of the Rating Agencies do not
fall in the same Rating Category, and the lower of such Ratings (i.e., the
Rating Category designated by a numerically higher Roman numeral) is one Rating
Category lower than the higher of such Ratings, then the Rating Category of the
higher of such Ratings shall be applicable for such day, (ii) if on any day the
Ratings of the Rating Agencies do not fall in the same Rating Category, and the
lower of such Ratings is more than one Rating Category lower than the higher of
such Ratings, then the Rating Category next higher from that of the lower of
such Ratings shall be applicable for such day, (iii) if on any day the Rating of
only one of the Rating Agencies is available, then the Rating Category of such
Rating shall be applicable for such day and (iv) if on any day a Rating is
available from neither of the Rating Agencies, then Rating VI shall be
applicable for such day. Any change in the applicable Rating Category resulting
from a change in the Rating of a Rating Agency shall become effective on the
date such change is publicly announced by such Rating Agency.
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"UTILIZATION FEE RATE": 10 bps per annum, for Rating Category III and
above; 12.5 bps for Rating Category IV and below.
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ANNEX B
to Amendment to
the Second Amended and Restated Credit Agreement
(h) Notwithstanding anything to the contrary contained herein, any Lender
(a "GRANTING LENDER") may grant to a special purpose funding vehicle (an "SPC")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to Section 2.1 or
2.10, PROVIDED that (i) nothing herein shall constitute a commitment to make any
Loan by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall satisfy the obligation of the Granting Lenders
to make Loans to the same extent, and as if, such Loan were made by the Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable for any
payment under this Agreement for which a Lender would otherwise be liable, for
so long as, and to the extent, the related Granting Lender makes such payment.
In furtherance of the foregoing, each party hereto hereby agrees that, prior to
the date that is one year and one day after the payment in full of all
outstanding senior indebtedness of any SPC, it will not institute against or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or similar
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
12.6 any SPC may (i) with notice to, but without the prior written consent of,
the Borrower or the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to its Granting
Lender or to any financial institutions providing liquidity and/or credit
facilities to or for the account of such SPC to fund the Loans made by such SPC
or to support the securities (if any) issued by such SPC to fund such Loans and
(ii) disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC. In no event shall the
Borrower be obligated to pay to an SPC that has made a Loan any greater amount
than the Borrower would have been obligated to pay under this Agreement if the
Granting Lender had made such Loan. Each Granting Lender shall indemnify and
hold harmless the Borrower and its directors, officers, employees and agents
from and against any and all losses, liabilities, claims, damages and expenses
arising from or attributable to the making of a Loan by an SPC of such Granting
Lender.
