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EXHIBIT 10.1
FIRST AMENDMENT
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)
MERRILL LYNCH CAPITAL CORPORATION, as Syndication Agent (the
“ Syndication Agent ”), (v) BEAR STEARNS
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
Abbott 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 Abbott 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) . &n
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