EXHIBIT 10.2
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FORM OF FIRST AMENDMENT
FIRST AMENDMENT, dated as of November 11, 2004 (this "Amendment"), to the
364-Day Revolving Credit Agreement, dated as of May 14, 2004 (as amended,
supplemented or otherwise modified from time to time, 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) BANK OF AMERICA, N.A., and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication Agents (each in such
capacity, a "Syndication Agent", and collectively, the "Syndication Agents"),
(iv) ABN AMRO BANK N.V., CITICORP USA, INC., DEUTSCHE BANK AG NEW YORK BRANCH,
SUMITOMO MITSUI BANKING CORPORATION and THE BANK OF TOKYO-MITSUBISHI LTD., NEW
YORK BRANCH, as Documentation Agents (each in such capacity, a "Documentation
Agent", and collectively, the "Documentation Agents"), and (v) JPMORGAN CHASE
BANK, as administrative agent for the Lenders thereunder (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 to allow UBS Loan Finance LLC
("UBS") to become a Lender under the Credit Agreement and to increase the
Aggregate Commitments under the Credit Agreement in an amount equal to the
Commitment of UBS Loan Finance LLC in the manner provided for in this Amendment;
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 Borrower, 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 Schedule I to the Credit Agreement. (a) Schedule
I to the Credit Agreement is hereby amended by inserting therein the following
entity, which shall be a Lender for all purposes under the Credit Agreement
following the Amendment Effective Date (as defined below), and related
information:
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Lender and Address Commitment
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UBS Loan Finance LLC $41,250,000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) The "Aggregate Commitments" as listed on Schedule I to the Credit
Agreement are hereby increased from $500,000,000 to $541,250,000.
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SECTION 1.3. Conditions to Effectiveness. This Amendment shall become
effective as of the date hereof on the date (the "Amendment Effective Date") on
which the Borrower and the Administrative Agent shall have executed and
delivered to the Administrative Agent this Amendment.
SECTION 1.4. Representation and Warranties. To induce the Administrative
Agent 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.
(i) The Borrower has the corporate power and authority, and the legal
right, to make and deliver this Amendment and to perform its obligations
under 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.
(ii) 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.
(iii) This Amendment has been duly executed and delivered on behalf of
the Borrower.
(iv) 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 or pursuant to the Loan Documents (other than in Section 6.2,
6.6 and 6.8 of the Credit Agreement, which shall be true as of the Closing Date)
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. Agreement of UBS. UBS hereby agrees that it will be bound by
the provisions of the Credit Agreement and will perform in accordance with its
terms all the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender.
SECTION 1.6. Payment of Expenses. The Borrower agrees to pay or reimburse
the Administrative Agent for all of its reasonable 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 fees and disbursements of counsel
to the Administrative Agent.
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SECTION 1.7. 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 1.8. 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.
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:
First Amendment to 364-Day Credit Agreement
JPMORGAN CHASE BANK,
as Administrative Agent and as a Lender
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement
UBS LOAN FINANCE LLC
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Lender
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent and as a Lender
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement
ABN AMRO BANK N.V.,
as Documentation Agent and as a Lender
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement
CITICORP USA, INC.,
as Documentation Agent and as a Lender
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement
DEUTSCHE BANK AG NEW YORK BRANCH,
as Documentation Agent and as a Lender
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement
SUMITOMO MITSUI BANKING CORPORATION,
as Documentation Agent and as a Lender
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement
THE BANK OF TOKYO-MITSUBISHI LTD.,
NEW YORK BRANCH,
as Documentation Agent and as a Lender
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement
[EACH OTHER LENDER],
as a Lender
By: ____________________________
Name:
Title:
First Amendment to 364-Day Credit Agreement