EXHIBIT 10.1
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FORM OF AMENDMENT
AMENDMENT, dated as of August 15, 2001 (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, N.A. (successor by
merger to 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:
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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
adding thereto the definitions of "Capital Lease Obligations", "Consolidated
EBITDA", "Consolidated Interest Coverage Ratio", "Consolidated Interest
Expense", "Consolidated Leverage Ratio", "Consolidated Net Income",
"Consolidated Tangible Assets", "Consolidated Total Assets", "Consolidated Total
Debt", "Five-Year Credit Agreement", "Hedge Agreements", "Receivables",
"Receivables Subsidiary", "Receivables Transaction", and "Receivables
Transaction Prepayment Amount", attached hereto as Annex A.
2. Subsection 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Indebtedness" in its entirety and inserting in lieu
thereof, new definition of Indebtedness, attached hereto as Annex B.
3. Subsection 1.1 of the Credit Agreement is hereby amended by
deleting all references to the term "364-Day Agreement" from the definition of
"Excess Utilization Day" and inserting in lieu thereof, the term "Five-Year
Credit Agreement".
4. Subsection 1.1 of the Credit Agreement is hereby amended by
amending the definition of "Conversion Sharing Percentage" by (a) deleting the
phrase "and the purchase and sale by such Lender of participating interests" and
(b) substituting in lieu thereof "and the purchase and sale by each Lender of
participating interests".
5. Subsection 3.1 of the Credit Agreement is hereby amended by
adding thereto a new clause (d), attached hereto as Annex C.
6. Subsection 8.1 of the Credit Agreement is hereby amended by
deleting such Subsection in its entirety and replacing in lieu thereof a new
Subsection 8.1, attached hereto as Annex D
7. Subsection 8.2 of the Credit Agreement is hereby amended by
deleting the "." from the end of clause (i) thereof and substituting in lieu
thereof the following:
"; (j) Liens created pursuant to any Receivables Transaction
permitted pursuant to subsection 8.4(a)."
8. the Credit Agreement is hereby amended by adding thereto a new
Subsection 8.4, attached hereto as Annex E.
III. Conditions to Effectiveness. This Amendment shall become
effective on the date (the "Amendment Effective Date") on which both (i) the
Borrower, the Administrative Agent and the Majority Lenders shall have executed
and delivered to the Administrative Agent this Amendment and (ii) the Five-Year
Facility shall have become effective in accordance with its terms.
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.
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(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.
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: ____________________________
Name:
Title:
Signature Page to Amendment
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ABN AMRO BANK N.V.
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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BANK OF AMERICA, N.A.
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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BARCLAYS BANK PLC
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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ALLIED IRISH BANKS, P.L.C.
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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BANCA MONTE DEI PASCHI DI SIENA S.P.A.
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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BANK BOSTON, N.A.
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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BANK OF IRELAND
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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BANK OF NEW YORK
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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THE BANK OF NOVA SCOTIA
By: ____________________________________
Name:
Title:
Signature Page to Amendment
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BANK OF TOKYO-MITSUBISHI TRUST CO.
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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BANKERS TRUST
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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BANQUE NATIONALE DE PARIS
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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COMMERZBANK A.G.
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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FIRST UNION NATIONAL BANK
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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THE DAI-ICHI KANGYO BANK, LIMITED
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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THE FIRST NATIONAL BANK OF CHICAGO
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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FLEET NATIONAL BANK
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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THE FUJI BANK, LIMITED
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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MELLON BANK, N.A.
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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NATIONSBANK, N.A.
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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THE SANWA BANK, LIMITED
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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SVENSKA HANDELSBANKEN
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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TORONTO DOMINION (TEXAS), INC.
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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UBS AG, NEW YORK BRANCH
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Signature Page to Amendment
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U.S. BANK, N.A.
By: ___________________________________
Name:
Title:
ANNEX A
to Amendment to
the Second Amended and Restated Credit Agreement
"Capital Lease Obligations": as to any Person, the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance
with GAAP.
"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, (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 of intangibles
(including, but not limited to, goodwill) and organization costs and
(e) any extraordinary, unusual or non-recurring 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 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 non-recurring 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).
"Consolidated Interest Coverage Ratio": for any period,
the ratio of (a) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period to (b) Consolidated Interest Expense of
the Borrower and its Subsidiaries for such period.
"Consolidated Interest Expense": of any Person for any
period, total interest expense of such Person and its Subsidiaries
for such period with respect to all outstanding Indebtedness of such
Person and its Subsidiaries determined in accordance with GAAP
(including, all net costs that are allocable to such period in
accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of any
period of four consecutive fiscal quarters of the Borrower, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated
EBITDA of the Borrower and its Subsidiaries for such period.
"Consolidated Net Income": of any Person for any period,
the consolidated net income (or loss) of such Person and its
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Tangible Assets": at any date,
Consolidated Total Assets minus (without duplication) the net book
value of all assets which would be treated as intangible assets, as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Assets": at any date, the net book
value of all assets of the Borrower and its Subsidiaries as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.
"Five-Year Credit Agreement": the Credit Agreement dated
as of August 15, 2001, among the Borrower, the lenders parties
thereto, The Chase Manhattan Bank, as administrative agent, and
others, provided for a $600,000,000 revolving credit and competitive
advance facility, as the same may from time to time amended, amended
and restated, supplemented or otherwise modified.
"Hedge Agreements": all interest rate or currency swaps,
caps or collar agreements, foreign exchange agreements, commodity
contracts or similar arrangements entered into by the Borrower or
its Subsidiaries providing for protection against fluctuations in
interest rates, currency exchange rates, commodity prices or the
exchange of nominal interest obligations, either generally or under
specific contingencies.
"Receivables": any accounts receivable of any Person,
including, without limitation, any thereof constituting or evidenced
by chattel paper, instruments or general intangibles, and all
proceeds thereof and rights (contractual and other) and collateral
related thereto.
"Receivables Subsidiary": any special purpose,
bankruptcy-remote Subsidiary of the Borrower that purchases, on a
revolving basis, Receivables generated by the Borrower or any of its
Subsidiaries.
"Receivables Transaction": any transactions or series of
related transactions providing for the financing of Receivables of
the Borrower or any of its Subsidiaries.
"Receivables Transaction Prepayment Amount": with
respect to the initial transfer of Receivables pursuant to any
Receivables Transaction, an amount equal to 100% of the gross
proceeds in cash of such Receivables Transaction, net of (i)
reasonable attorneys' fees, accountants' fees, brokerage, consultant
and other customary fees, underwriting commissions and other
reasonable fees and expenses actually incurred in connection with
such Receivables Transaction, (ii) taxes paid or reasonably
estimated to be payable as a result thereof and (iii) in the case of
any Receivables Transaction, any escrowed or pledged cash proceeds
which effectively secure, or are required to be maintained as
reserves by the applicable entity for, the Indebtedness of the
Borrower and its Subsidiaries in respect of, or the obligations of
the Borrower and its Subsidiaries under, such Receivables
Transaction.
ANNEX B
to Amendment to
the Second Amended and Restated Credit Agreement
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price
of property or services (other than current trade liabilities
incurred in the ordinary course of such Person's business and
payable in accordance with customary practices and earn-outs and
other similar obligations in respect of acquisition and other
similar agreements), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease
Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under or
in respect of acceptances, letters of credit, surety bonds or
similar arrangements, (g) the liquidation value of all redeemable
preferred Capital Stock of such Person, (h) all indebtedness of such
Person, determined in accordance with GAAP, arising out of a
Receivables Transaction, (i) all Guarantee Obligations of such
Person in respect of obligations of the kind referred to in clauses
(a) through (h) above, (j) all obligations of the kind referred to
in clauses (a) through (i) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such obligation, and
(k) for the purposes of Section 9(d) only, all obligations of such
Person in respect of Hedge Agreements. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including
any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness expressly provide that
such Person is not liable therefor.
ANNEX C
to Amendment to
the Second Amended and Restated Credit Agreement
(d) If a Receivables Transaction is consummated on any date, on the
next Business Day the Borrower shall prepay the Revolving Credit Loans (or at
the option of the Borrower, the Revolving Credit Loans under the Five-Year
Credit Agreement), Multicurrency Loans (or at the option of the Borrower, the
Multicurrency Loans under the Five-Year Credit Agreement), Local Currency Loans
(or at the option of the Borrower, the Local Currency Loans under the Five-Year
Credit Agreement) and/or cash collateralize the L/C Obligations under the
Five-Year Credit Agreement in an aggregate amount equal to the Receivables
Transaction Prepayment Amount in respect of such Receivables Transaction.
ANNEX D
to Amendment to
the Second Amended and Restated Credit Agreement
8.1. Financial Covenants. (a) Consolidated Leverage Ratio. Permit
the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower to exceed 3.5 to 1.0.
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
the Borrower to be less than 3.5 to 1.0.
ANNEX E
to Amendment to
the Second Amended and Restated Credit Agreement
8.4 Limitation on Indebtedness. Create, issue, incur, assume, become
liable in respect of or suffer to exist
(a) subject to Section 3.1(d), any Indebtedness pursuant
to any Receivables Transaction, except for Indebtedness pursuant to
all Receivable Transactions in an aggregate principal amount not
exceeding 15% of Consolidated Tangible Assets; or
(b) any Indebtedness of any of the Subsidiaries of the
Borrower other than (x) Indebtedness of any Receivables Subsidiary
pursuant to any Receivables Transaction permitted under subsection
8.4(a), (y) any Indebtedness of any Subsidiary of the Borrower owing
to the Borrower or to any other Subsidiary of the Borrower and (z)
any other Indebtedness of Subsidiaries of the Borrower in an
aggregate principal amount at any time outstanding not to exceed 15%
of Consolidated Tangible Assets.
