FIRST AMENDMENT
EXHIBIT
10.1
FIRST
AMENDMENT, dated as of August 17, 2007 (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:
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 “Consolidated EBITDA” in subsection 1.1 of the Credit
Agreement is hereby amended by (A) adding after the word “amortization” in
clause (d) thereof the words “or write-down”, (B) adding after the word
“acquisitions” in clause (e) thereof the phrase "and other strategic alliances,
inventory step-up charges, non-cash fair value adjustments in connection with
the equity investment by Xxxxxx Laboratories in the Borrower, and unrealized
investment impairments", (C) adding after the words “ordinary course of
business” in clause (b) thereof the phrase ", inventory step-up charges,
non-cash fair value adjustments in connection with the equity investment by
Xxxxxx Laboratories in the Borrower, and unrealized investment impairments"
and
(D) substituting a comma for the word “and” immediately before clause (f) of
such definition and by inserting the following clauses (g), (h) and
(i):
“,
(g)
with regard to any period ending on or prior to June 30, 2009, any cash or
non-cash litigation expenses, including judgments, awards, settlements and
related legal costs (net of any litigation or settlement income received during
such period), provided that, solely for the purposes of this definition,
the aggregate amount of all litigation expenses under this clause (g) shall
not
exceed $500,000,000 for any period of four fiscal quarters and $1,000,000,000
in
the aggregate, (h) with regard to any period ending on or prior to June 30,
2009, any cash or non-cash charges in respect of restructurings, plant closings,
staff reductions 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 $300,000,000 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",”
(b) The
definition of the term “Eurocurrency Rate” in subsection 1.1 of the Credit
Agreement is hereby amended by deleting “(rounding upward to the nearest 1/100th
of 1%)”.
SECTION
1.3. Amendment
to Subsection 3.7(a) (Pro Rata Treatment and Payments). The
second sentence of subsection 3.7(a) is hereby amended to read as
follows:
“The
amount of each principal prepayment of the Term Loans shall be applied to reduce
the then remaining installments of the Term Loans in direct order of
maturity.”
SECTION
1.4. Amendment
to Subsection 9.1(a) (Financial Covenants). Section
9.1(a) is hereby amended to read as follows:
“Permit
the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower to exceed (i) 4.5 to 1.0 on or
prior
to Xxxxxxxx 00, 0000, (xx) 4.0 to 1.0 after December 31, 2008 and on or prior
to
June 30, 2009 and (iii) 3.5 to 1.0 thereafter.”
The
Credit Agreement is further amended by deleting the name and contact details
for
“Xxxxxxxx X. Best” wherever it appears and substituting therefor “Xxx X. Xxxx,
Fax: 000-000-0000”.
SECTION
1.5. 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 $1,000,000,000 (which
prepayment shall be applied in accordance with Section 3.7(a) of the Credit
Agreement as amended by Section 1.3 hereof) and (c) all fees payable to Banc
of
America Securities LLC, X.X. Xxxxxx Securities Inc. and any Lender shall have
been paid.
SECTION
1.6. 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
1.7. 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
1.8. 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
1.9. 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.
| BOSTON SCIENTIFIC CORPORATION | |||
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By:
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| Name | |||
| Title | |||
| BSC INTERNATIONAL HOLDING LIMITED | |||
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By:
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| Name | |||
| Title | |||
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BANK
OF AMERICA, N.A.
as
Administrative Agent and as a Lender
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By:
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| Name | |||
| Title | |||
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XXXXXX
XXXXX CAPITAL CORPORATION,
as
Syndication Agent and as a Lender
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By:
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| Name | |||
| Title | |||
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BEAR
XXXXXXX CORPORATE LENDING, INC.,
as
Documentation Agent and as a Lender
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By:
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| Name | |||
| Title | |||
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DEUTSCHE
BANK SECURITIES INC.,
as
Documentation Agent and as a Lender
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By:
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| Name | |||
| Title | |||
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WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Documentation Agent and as a
Lender
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By:
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| Name | |||
| Title | |||
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| as a Lender | |||
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By:
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| Name | |||
| Title | |||
