<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM 10-Q
/x/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT
OF 1934
For the quarterly period ended: September 30, 1999
Commission file number: 1-11083
BOSTON SCIENTIFIC CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 04-2695240
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
One Boston Scientific Place, Natick, Massachusetts 01760-1537
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (508) 650-8000
- --------------------------------------------------------------------------------
Former name, former address and former fiscal year, if changed since last
report.
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the last practicable date.
<TABLE>
<CAPTION>
Shares Outstanding
Class as of September 30, 1999
----- ------------------------
<S> <C>
Common Stock, $.01 Par Value 414,701,219
</TABLE>
<PAGE> 2
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
(Unaudited)
<TABLE>
<CAPTION>
September 30, December 31,
In millions, except share and per share data 1999 1998
- --------------------------------------------------------------------------------
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 72 $ 70
Short-term investments 5
Trade accounts receivable, net 436 538
Inventories 414 462
Other current assets 173 192
----------------------
Total current assets 1,095 1,267
Property, plant and equipment 976 945
Less: accumulated depreciation 344 265
---------------------
632 680
Excess of cost over net assets acquired, net 850 877
Technology - core and developed, net 579 607
Patents, trademarks and other intangibles, net 320 330
Other assets 163 132
----------------------
$3,639 $3,893
======================
</TABLE>
See notes to unaudited condensed consolidated financial statements.
1
<PAGE> 3
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
Condensed Consolidated Balance Sheets (continued)
(Unaudited)
<TABLE>
<CAPTION>
September 30, December 31,
In millions, except share and per share data 1999 1998
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Liabilities and Stockholders' Equity
Current liabilities:
Commercial paper $1,016
Bank obligations $ 559 11
Accounts payable and accrued expenses 405 354
Acquisition-related obligations 140
Accrual for restructuring and merger-related charges 39 71
Other current liabilities 39 28
--------------------------
Total current liabilities 1,042 1,620
Long-term debt 761 1,364
Other long-term liabilities 83 88
Commitments and contingencies
Stockholders' equity:
Preferred stock, $ .01 par value - authorized 50,000,000 shares, none issued
and outstanding
Common stock, $ .01 par value - authorized 600,000,000 shares, 414,701,219
shares issued at September 30, 1999 and 394,185,781 issued at
December 31, 1998 4 4
Additional paid-in capital 1,207 507
Retained earnings 645 381
Accumulated other comprehensive income (expense):
Foreign currency translation adjustment (107) (72)
Unrealized gain on available-for-sale securities, net 4 1
--------------------------
Total stockholders' equity 1,753 821
--------------------------
$3,639 $3,893
==========================
</TABLE>
See notes to unaudited condensed consolidated financial statements.
2
<PAGE> 4
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
Condensed Consolidated Statements of Operations
(Unaudited)
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
In millions, except per share data 1999 1998 1999 1998
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 691 $ 576 $2,125 $1,517
Cost of products sold 283 206 748 493
--------------------- ---------------------
Gross profit 408 370 1,377 1,024
Selling, general and administrative expenses 220 191 631 524
Amortization expense 23 11 69 27
Royalties 12 7 35 21
Research and development expenses 48 49 146 143
Special charges (credits) (10) 671 (10) 662
-------------------- ---------------------
293 929 871 1,377
-------------------- ---------------------
Operating income (loss) 115 (559) 506 (353)
Other income (expense):
Interest and dividend income 1 2 3 4
Interest expense (26) (16) (96) (30)
Other, net (6) (2) (13) (1)
-------------------- ---------------------
Income (loss) before income taxes 84 (575) 400 (380)
Income taxes 29 (113) 136 (45)
--------------------- ---------------------
Net income (loss) $ 55 $ (462) $ 264 $ (335)
==================== =====================
Net income (loss) per common share - basic $0.13 $(1.18) $ 0.66 $(0.86)
==================== =====================
Net income (loss) per common share - assuming dilution $0.13 $(1.18) $ 0.64 $(0.86)
==================== =====================
</TABLE>
See notes to unaudited condensed consolidated financial statements.
3
<PAGE> 5
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
Condensed Consolidated Statements of Stockholders' Equity
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended September 30, 1999
----------------------------------------------------------------------------------------
Common Stock Foreign Unrealized
--------------------------- Additional Currency Gain
Shares Issued Par Value Paid-In Retained Translation on Available-for-sale
Capital Earnings Adjustment Securities, Net
----------------------------------------------------------------------------------------
(In millions, except share data)
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1998 394,185,781 $4 $ 507 $381 $ (72) $1
Net income 264
Foreign currency translation adjustment (35)
Issuance of common stock 20,515,438 652
Tax benefit relating to incentive stock
option and employee stock purchase plans 48
Net change in equity investments 3
--------------------------------------------------------------------------------
Balance at September 30, 1999 414,701,219 $4 $1,207 $645 $(107) $4
================================================================================
Total
--------
<S> <C>
Balance at December 31, 1998 $ 821
Net income 264
Foreign currency translation adjustment (35)
Issuance of common stock 652
Tax benefit relating to incentive stock
option and employee stock purchase plans 48
Net change in equity investments 3
-------
Balance at September 30, 1999 $1,753
=======
</TABLE>
See notes to unaudited condensed consolidated financial statements.
4
<PAGE> 6
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
In millions 1999 1998
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash provided by operating activities $ 562 $ 103
Investing activities:
Purchases of property, plant, and equipment, net (57) (135)
Payments related to 1998 acquisition (128) (2,060)
Other, net 7
-----------------------
Cash used in investing activities (185) (2,188)
Financing activities:
Net proceeds from borrowings on revolving credit facilities 741
Net increase (decrease) in commercial paper (1,816) 1,628
Net proceeds from notes payable and long-term debt 523
Proceeds from issuances of shares of common stock,
net of tax benefits 700 82
Other, net (1) (14)
-----------------------
Cash provided by (used for) financing activities (376) 2,219
Effect of foreign exchange rates on cash 1 3
-----------------------
Net increase in cash and cash equivalents 2 137
Cash and cash equivalents at beginning of period 70 58
-----------------------
Cash and cash equivalents at end of period $ 72 $ 195
=======================
</TABLE>
See notes to unaudited condensed consolidated financial statements.
5
<PAGE> 7
Notes to Condensed Consolidated Financial Statements
(Unaudited)
September 30, 1999
Note A - Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
only of normal recurring adjustments) considered necessary for a fair
presentation have been included. Operating results for the three and nine month
periods ended September 30, 1999 are not necessarily indicative of the results
that may be expected for the year ending December 31, 1999. For further
information, refer to the consolidated financial statements and footnotes
thereto incorporated by reference in Boston Scientific Corporation's Amended
Annual Report on Form 10-K/A2 for the year ended December 31, 1998.
Certain prior years' amounts have been reclassified to conform to the current
year presentation.
Note B - Comprehensive Income
The Company had comprehensive income of $69 million for the three months ended
September 30, 1999 and a comprehensive loss of $442 million for the three months
ended September 30, 1998. The Company had comprehensive income of $232 million
for the nine months ended September 30, 1999 and a comprehensive loss of $336
million for the nine months ended September 30, 1998.
6
<PAGE> 8
Note C - Earnings Per Share
The following table sets forth the computations of basic and diluted earnings
per share:
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
(In millions, except share and per share data) 1999 1998 1999 1998
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Basic:
Net income (loss) $ 55 $ (462) $ 264 $ (335)
-----------------------------------------------------
Weighted average shares outstanding (in thousands) 414,530 392,432 402,328 390,087
=====================================================
Net income (loss) per common share $ 0.13 $ (1.18) $ 0.66 $ (0.86)
=====================================================
Assuming dilution:
Net income (loss) $ 55 $ (462) $ 264 $ (335)
-----------------------------------------------------
Weighted average shares outstanding (in thousands) 414,530 392,432 402,328 390,087
Net effect of dilutive stock options (in thousands) 6,975 7,689
-----------------------------------------------------
Total (in thousands) 421,505 392,432 410,017 390,087
=====================================================
Net income (loss) per common share $ 0.13 $ (1.18) $ 0.64 $ (0.86)
=====================================================
</TABLE>
Note D - Restructuring and Merger-Related Charges
During the third quarter, the Company identified and reversed restructuring and
merger-related charges of $10 million ($7 million, net of tax) no longer deemed
necessary. These amounts relate primarily to the restructuring charges accrued
in the fourth quarter of 1998 and reflect the reclassification of assets from
held for disposal to held for use following management's decision to resume a
development program previously planned to be eliminated. In addition estimated
severance costs for 1998 initiatives were reduced as a result of attrition.
At September 30, 1999, the Company had an accrual for restructuring and
merger-related charges of $43 million, which is comprised of $26 million of
accrued severance and related costs primarily associated with integrating
Schneider (acquired in September 1998) and streamlining manufacturing
operations, $6 million related to the cost of canceling contractual commitments
recorded in connection with the Schneider acquisition and $11 million of
accruals remaining from 1997 and prior mergers (primarily costs associated with
rationalized facilities and statutory benefits that are subject to litigation).
The activity impacting the accrual related to restructuring and merger-related
charges during the nine months ended September 30, 1999 is summarized in the
following table:
7
<PAGE> 9
<TABLE>
<CAPTION>
Purchase Charges
Balance at Price Charges (Credits) to Balance at
December 31, Adjustments Utilized in Operations September 30,
(In millions) 1998 in 1999 1999 in 1999 1999
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1995 AND 1996 RESTRUCTURING AND MERGER-RELATED INITIATIVES:
Facilities $11 $ (7) $ (1) $ 3
Workforce reductions 4 4
Contractual commitments 1 1
Asset write-downs 1 (1)
Direct transaction and other costs 2 2
---------------------------------------------------------------------------
$19 $ (8) $ (1) $10
===========================================================================
1997 RESTRUCTURING AND MERGER-RELATED INITIATIVES:
Contractual commitments $ 1 $ (1)
Asset write-downs 1 (1)
Direct transaction and other costs 2 $ (1) $ 1
---------------------------------------------------------------------------
$ 4 $ (2) $ (1) $ 1
===========================================================================
1998 SCHNEIDER PURCHASE PRICE ADJUSTMENTS:
Workforce reductions $27 $4 $(14) $17
Contractual commitments 16 3 (13) 6
---------------------------------------------------------------------------
$43 $7 $(27) $23
===========================================================================
1998 RESTRUCTURING AND MERGER-RELATED INITIATIVES:
Workforce reductions $13 $ (5) $ (4) $ 4
Asset write-downs 9 (1) (4) 4
Direct transaction and other costs 1 1
---------------------------------------------------------------------------
$23 $ (6) $ (8) $9
===========================================================================
TOTAL:
Facilities $11 $ (7) $ (1) $ 3
Workforce reductions 44 $4 (19) (4) 25
Contractual commitments 18 3 (14) 7
Asset write-downs 11 (3) (4) 4
Direct transaction and other costs 5 (1) 4
---------------------------------------------------------------------------
$89 $7 $(43) $(10) $43
===========================================================================
</TABLE>
8
<PAGE> 10
As of September 30, 1999, the Company's cash obligations required to complete
the balance of the Company's initiatives to integrate businesses related to its
mergers and acquisitions and its 1998 rationalization strategy are estimated at
approximately $37 million. The Company expects that substantially all of these
cash outlays (primarily severance) will be made during the first half of 2000.
Note E - Borrowings and Credit Arrangements
During the first quarter of 1999, the Company refinanced $1.7 billion of
commercial paper borrowings with proceeds from borrowings under its revolving
credit facilities (Facilities). On June 30, 1999, the Company completed a public
offering of 14,950,000 shares at a price of $39.875 per share under a shelf
registration filed with the Securities and Exchange Commission in September
1998. The public offering reduced the amount available for the issuance of
securities under the shelf registration to $604 million. The Company used the
net proceeds from its public offering of approximately $578 million to repay
indebtedness under its Facilities.
In conjunction with the public offering, the Company's borrowing availability
under its Facilities was reduced by the amount of the net proceeds of the
offering. At September 30, 1999, the Company had approximately $1.7 billion of
borrowings available under its Facilities, of which $743 million were
outstanding with a weighted average interest rate of 5.74%. During the third
quarter of 1999, the Company extended its $600 million 364-day credit facility
to September 2000. At September 30, 1999, the Company had no commercial paper
outstanding, however, the Company resumed issuance of its commercial paper
during October 1999. The Company intends to continue to borrow under its
Facilities until it is able to issue sufficient commercial paper at reasonable
rates. The Company has the ability to refinance a portion of its short-term debt
on a long-term basis through its credit facilities and expects a minimum of $193
million will remain outstanding through the next twelve months, and accordingly,
the Company has classified this portion of borrowings as long-term at September
30, 1999. The Facilities require the Company to maintain a specific ratio of
consolidated funded debt (as defined) to consolidated net worth (as defined)
plus consolidated funded debt of less than or equal to 60%. As of September 30,
1999, the ratio was approximately 37%.
Note F - Inventories
The components of inventory consist of the following:
September 30, December 31,
(In millions) 1999 1998
- ---------------------------------------------------------------------
Finished goods $220 $249
Work-in-process 64 83
Raw materials 130 130
-----------------------------------------
$414 $462
=========================================
During the third quarter of 1999, the Company recorded a provision for excess
NIR(R) stent inventories and purchase commitments of $62 million ($41 million,
net of tax).
Note G - New Accounting Pronouncements
During the first quarter of 1999, the Company adopted the American Institute of
Certified Public Accountants' Statement of Position 98-5. "Reporting on the
Costs of Start Up Activities", which requires costs of start up activities and
organization costs to be expensed as incurred. The Company's adoption of this
statement had no material effect on the Company's reported results of
operations of financial position.
In June 1998, the Financial Accounting Standards Board issued Statement No.
133, "Accounting for Derivative Instruments and Hedging Activities" (SFAS No.
133), which is required to be adopted for fiscal years beginning after June 15,
2000, although earlier application is permitted as of the beginning of any
fiscal quarter. This statement will require the Company to recognize all
derivatives on the balance sheet at fair value. Derivatives that are not hedges
must be adjusted to fair value through income. If the derivative is a hedge,
depending on the nature of the hedge, changes in the fair value of derivatives
will either be offset against the change in fair value of the hedged assets,
liabilities, or firm commitments through earnings or recognized in other
comprehensive income until the hedged item is recognized in earnings. The
ineffective portion of a derivative's change in fair value will be immediately
recognized in earnings. The Company is in the process of determining if earlier
application would be feasible and what effect the adoption of SFAS No. 133 will
have on the Company's results of operations, cash flows or financial position.
9
<PAGE> 11
Note H - Commitments and Contingencies
On May 31, 1994, SCIMED Life Systems, Inc. (SCIMED), a subsidiary of the
Company, filed a suit for patent infringement against Advanced Cardiovascular
Systems, Inc. (ACS), alleging willful infringement of two of SCIMED's U.S.
patents by ACS's RX ELIPSE(TM) PTCA catheter. The suit was filed in the U.S.
District Court for the Northern District of California seeking monetary and
injunctive relief. In January 1998, the Company added the ACS RX MULTILINK(TM)
stent delivery system to its complaint. On June 6, 1999, the Court granted
summary judgment in favor of ACS affirming that ACS's patents were not
infringed. SCIMED has appealed the judgment.
On December 29, 1998, the Company and SCIMED filed a cross-border suit against
ACS, Guidant Corporation (Guidant) and various foreign subsidiaries in The
Netherlands alleging ACS's MULTILINK(TM), RX ELIPSE, RX MULTILINK HP(TM) and RX
DUET(TM) catheters and stent delivery systems infringe one of the Company's
European patents. In this action, the Company requested relief covering The
Netherlands, the United Kingdom, France, Germany and Italy. A hearing on the
merits was held on November 5, 1999. The court's decision will be announced
December 22, 1999.
On January 13, 1999, SCIMED filed a suit for patent infringement against ACS,
Guidant and Guidant Sales Corporation alleging willful infringement of two of
SCIMED's U.S. patents by ACS's RX MULTILINK HP and RX DUET stent delivery
systems and one of SCIMED's U.S. patents by ACS's RX MULTILINK stent delivery
system. The suit was filed in the U.S. District Court for the Northern District
of California seeking monetary and injunctive relief. ACS has answered, denying
the allegations of the complaint. A trial date has not yet been set.
On October 10, 1995, ACS filed a suit for patent infringement against SCIMED,
alleging willful infringement by SCIMED's EXPRESS PLUS(TM) and EXPRESS PLUS
II(TM) PTCA catheters of four U.S. patents licensed to ACS. Suit was filed in
the U.S. District Court for the Northern District of California and seeks
monetary and injunctive relief. SCIMED has answered, denying the allegations of
the complaint. A trial date is scheduled for July 31, 2000.
On March 12, 1996, ACS filed two suits for patent infringement against SCIMED,
alleging in one case the willful infringement of a U.S. patent by SCIMED's
EXPRESS PLUS, EXPRESS PLUS II and LEAP(R) EXPRESS PLUS PTCA catheters, and in
the other case the willful infringement of a U.S. patent by SCIMED's BANDIT(TM)
PTCA catheter. The suits were filed in the U.S. District Court for the Northern
District of California and seek monetary and injunctive relief. On June 24,
1999, in the case involving the BANDIT PTCA catheter the Court granted ACS's
motions for summary judgment asserting the validity (with respect to certain
issues) and infringement of ACS's patent; the Court denied ACS's motion for
summary judgment on the enforceability of its patent and SCIMED's motions for
summary judgment asserting the invalidity of, and SCIMED's failure to willfully
infringe, ACS's patent. A trial date on the remaining issues with respect to the
BANDIT PTCA
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<PAGE> 12
catheter is set for February 2000. A trial date with respect to the EXPRESS PLUS
catheters is set for July 2000.
On September 16, 1997, ACS filed a suit for patent infringement against the
Company and SCIMED, alleging that SCIMED's REBEL(TM) PTCA catheter infringes two
U.S. patents licensed to ACS and one U.S. patent owned by ACS. Suit was filed in
the U.S. District Court for the Northern District of California seeking monetary
damages, injunctive relief and that the patents be adjudged valid, enforceable
and infringed. The Company and SCIMED have answered, denying the allegations in
the complaint. A trial date has not yet been set.
On August 12, 1998, ACS and an affiliate of ACS filed suit for patent
infringement against the Company and SCIMED alleging that the Company's NIR(R)
stent infringes five patents owned by ACS. The suit was filed in the U.S.
District Court for the Southern District of Indiana seeking injunctive and
monetary relief. The Company and SCIMED have answered, denying the allegations
of the complaint. A trial date has been set for March 22, 2000.
On March 25, 1996, Cordis Corporation (Cordis), a subsidiary of Johnson &
Johnson Company (Johnson & Johnson), filed a suit for patent infringement
against SCIMED, alleging the infringement of five U.S. patents by SCIMED's LEAP
balloon material used in certain SCIMED catheter products, including SCIMED's
BANDIT and EXPRESS PLUS catheters. The suit was filed in the U.S. District Court
for the District of Minnesota and seeks monetary and injunctive relief. SCIMED
has answered, denying the allegations of the complaint. A trial date has not yet
been set.
On March 27, 1997, SCIMED filed suit for patent infringement against Cordis,
alleging willful infringement of several SCIMED U.S. patents by Cordis'
TRACKSTAR 14(TM), TRACKSTAR 18(TM), OLYMPIX(TM), POWERGRIP(TM), SLEEK(TM),
SLEUTH(TM), THOR(TM), TITAN(TM) and VALOR(TM) catheters. The suit was filed in
the U.S. District Court for the District of Minnesota, seeking monetary and
injunctive relief. The parties have agreed to add Cordis' CHARGER(TM) and
HELIX(TM) catheters to the suit. Cordis has answered, denying the allegations of
the complaint. A trial date has not yet been set.
On March 13, 1997, the Company (through its subsidiaries) filed suits against
Johnson & Johnson (through its subsidiaries) in The Netherlands, the United
Kingdom and Belgium, and on March 17, 1997 filed suit in France, seeking a
declaration of noninfringement for the NIR(R) stent relative to two European
patents licensed to Ethicon, Inc. (Ethicon), a Johnson & Johnson subsidiary, as
well as a declaration of invalidity with respect to those patents. After a trial
on the merits in the United Kingdom during March 1998, the Court ruled on June
26, 1998 that neither of the patents is infringed by the NIR(R) stent, and that
both patents are invalid. Ethicon has appealed and a hearing is scheduled for
January 31, 2000. On October 28, 1998, the Company's motion
-11-
<PAGE> 13
for a declaration of noninfringement in France was dismissed for failure to
satisfy statutory requirements; the French invalidity suits were not affected.
On March 20, 21 and 22, 1997, the Company (through its subsidiaries) filed
additional suits against Johnson & Johnson (through its subsidiaries) in Sweden,
Italy and Spain, respectively, seeking a declaration of noninfringement for the
NIR(R) stent relative to one of the European patents licensed to Ethicon in
Sweden, Italy and Spain and a declaration of invalidity in Italy and Spain. A
hearing was held on July 9, 1999 in Italy with respect to the retention of a
court-appointed expert; the court has not yet ruled on the retention of an
expert. The next hearing is set for March 21, 2000.
Ethicon and other Johnson & Johnson subsidiaries filed a cross-border suit in
The Netherlands on March 17, 1997, alleging that the NIR(R) stent infringes one
of the European patents licensed to Ethicon. In this action, the Johnson &
Johnson entities requested relief, including provisional relief (a preliminary
injunction), covering Austria, Belgium, France, Greece, Italy, The Netherlands,
Norway, Spain, Sweden, Switzerland and the United Kingdom. On April 2, 1997, the
Johnson & Johnson entities filed a similar cross-border proceeding in The
Netherlands with respect to a second European patent licensed to Ethicon.
Johnson & Johnson subsequently withdrew its request for cross-border relief in
the United Kingdom. In October, 1997, Johnson & Johnson's request for
provisional cross-border relief on both patents was denied by the Dutch court,
on the ground that it is "very likely" that the NIR(R) stent will be found not
to infringe the patents. Johnson & Johnson appealed this decision with respect
to one of the patents; the appeal has been denied on the ground that there is a
"ready chance" that the patent will be declared null and void. In January 1999,
Johnson & Johnson amended the claims of one of the patents, changed the action
from a cross-border case to a Dutch national action, and indicated its intent
not to pursue its action on the second patent. A hearing was held on March 26,
1999, and on June 23, 1999, the Dutch Court affirmed that there were no
remaining infringement claims. A decision as to the validity of one of the
patents was referred to the Dutch Patent Office for advice.
On May 6, 1997, Ethicon Endosurgery, Inc. sued the Company in Dusseldorf,
Germany, alleging that the Company's NIR(R) stent infringes one of Ethicon's
patents. On June 23, 1998, the case was stayed following a decision in an
unrelated nullity action in which the Ethicon patent was found to be invalid.
On June 16, 1997, the Company and SCIMED filed a suit against Johnson & Johnson,
Ethicon and Johnson & Johnson International Systems Co. in the U.S. District
Court for the District of Massachusetts seeking a declaratory judgment of
noninfringement for the NIR(R) stent relative to two patents licensed to Johnson
& Johnson and that the two patents are invalid and unenforceable. The Company
subsequently amended its complaint to add a third patent. Johnson & Johnson
answered, denying the allegations of the complaint, and counterclaiming for
patent infringement. In October 1997, Johnson & Johnson's motion to dismiss the
suit was denied. This action has been consolidated with the Delaware action
described below.
-12-
<PAGE> 14
On August 22, 1997, Johnson & Johnson filed a suit for patent infringement
against the Company alleging that the sale of the NIR(R) stent infringes certain
Canadian patents owned by Johnson & Johnson. Suit was filed in the federal court
of Canada seeking a declaration of infringement, monetary damages and injunctive
relief. The Company has answered, denying the allegations of the complaint.
Trial is expected to begin in late 2000.
On October 22, 1997, Cordis filed a suit for patent infringement against the
Company and SCIMED alleging that the importation and use of the NIR(R) stent
infringes two patents owned by Cordis. The suit was filed in the U.S. District
Court for the District of Delaware seeking monetary damages, injunctive relief
and that the patents be adjudged valid, enforceable and infringed. The Company
and SCIMED have answered the complaint, denying Cordis' allegations. The
Massachusetts case described above has been consolidated with this action. A
trial date has been set for November 2000.
On April 13, 1998, Cordis filed a suit for patent infringement against the
Company and SCIMED alleging that the Company's NIR(R) stent infringes two
patents owned by Cordis. The suit was filed in the U.S. District Court for the
District of Delaware seeking injunctive and monetary relief. The Company and
SCIMED have answered, denying the allegations of the complaint. A trial date has
been set for November 2000.
On June 7, 1999, the Company, SCIMED and Medinol Ltd. filed suit for patent
infringement against Johnson & Johnson, Johnson & Johnson Interventional Systems
and Cordis, alleging two U.S. patents owned by Medinol Ltd. are infringed by at
least Cordis' CROWN(TM), MINI CROWN(TM) and CORINTHIAN(TM) stents. The suit was
filed in the U.S. District Court for the District of Minnesota seeking
injunctive and monetary relief. Trial is expected to begin in January 2001.
Johnson & Johnson is seeking to transfer the case to the U.S. District Court for
the District of Delaware.
On August 13, 1998, Arterial Vascular Engineering, Inc., now named Medtronic AVE
Inc. (AVE), filed a suit for patent infringement against the Company and SCIMED
alleging that the Company's NIR(R) stent infringes two patents owned by AVE. The
suit was filed in the U.S. District Court for the District of Delaware seeking
injunctive and monetary relief. The Company and SCIMED have answered, denying
the allegations of the complaint. Trial is expected to begin in March 2001.
On December 15, 1998, the Company and SCIMED filed a cross-border suit against
AVE in The Netherlands alleging that AVE's AVE GFX(TM), AVE GFX 2(TM), AVE
LTX(TM) and USCI CALYPSO(TM) rapid exchange catheters and stent delivery systems
infringe one of the Company's European patents. In this action, the Company
requested relief covering The Netherlands, the United Kingdom, France, Germany
and Italy. A hearing was held on October 22, 1999 and a decision is expected on
December 22, 1999.
On December 18, 1998, AVE filed a suit for patent infringement against the
Company and SCIMED alleging that the Company's MAXXUM(TM) and VIVA!(TM)
catheters infringe a patent owned by AVE. The suit was filed in the U.S.
District Court for the District of Delaware
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<PAGE> 15
seeking injunctive and monetary relief. The Company and SCIMED have answered,
denying the allegations of the complaint. A trial date is scheduled for
September 25, 2000.
On March 2, 1999, AVE filed a cross-border suit in The Netherlands against the
Company and various subsidiaries of the Company including SCIMED, alleging that
the Company's MAXXUM(TM), MAXXUM(TM) ENERGY, MAXXUM(TM) 29 MM, NIR(R) Primo(TM),
VIVA!(TM), EXPRESS PLUS and EXPRESS PLUS II balloon dilation catheters infringe
one of AVE's European patents. In this action, AVE requested relief covering The
Netherlands, Germany, the United Kingdom, France and Spain. The Company has
answered, denying the allegations of the complaint. A hearing is scheduled for
January 7, 2000.
On March 10, 1999, the Company through its subsidiary Schneider (Europe) AG
filed suit against AVE alleging that AVE's AVE GFX, AVE GFX2, AVE LTX, CALYPSO
RELY(TM), PRONTO SAMBA(TM) and SAMBA RELY(TM) rapid-exchange catheters and stent
delivery systems infringe one of the Company's German patents. The suit was
filed in the District Court of Dusseldorf, Germany seeking injunctive and
monetary relief. A hearing is scheduled for January 27, 2000.
On April 6, 1999, AVE filed suit against the Company and SCIMED alleging that
the Company's NIR(R) stent infringes one of AVE's European patents. The suit was
filed in the District Court of Dusseldorf, Germany seeking injunctive and
monetary relief. A hearing was held in Germany on September 23, 1999, and on
November 4, 1999, the court indicated its intent to dismiss the complaint.
On May 14, 1999, Medtronic, Inc. (Medtronic) filed suit against the Company and
SCIMED alleging that a variety of the Company's NIR(R) stent products infringe a
Medtronic patent. The suit was filed in the U.S. District Court for the District
of Minnesota seeking injunctive and monetary relief. The Company has answered,
denying the allegations of the complaint. A trial date is scheduled for May
2001.
On July 7, 1999, Medtronic filed suit against the Company and SCIMED, alleging
that SCIMED's RADIUS(TM) stent infringes two patents owned by Medtronic. The
suit was filed in the U.S. District Court for the District Court of Minnesota
seeking injunctive and monetary relief. The Company has answered, denying
allegations of the complaint. A trial date is scheduled for June 2001.
On April 5, 1995, C.R. Bard, Inc. (Bard) filed a lawsuit in the U.S. District
Court for the District of Delaware alleging that certain Company products,
including the Company's MaxForce TTS(TM) catheter, infringe a patent assigned to
Bard. Following a trial and jury verdict, on February 3, 1999 the court entered
a judgment that the Company infringed the Bard patent and awarded damages to
Bard in the amount of $10.8 million. The Company was also enjoined from selling
the product found to be infringing. The Company is appealing the judgment to the
Court of Appeals for the Federal Circuit. The Company no longer markets the
accused device.
-14-
<PAGE> 16
On March 7, 1996, Cook Inc. (Cook) filed suit in the Regional Court, Munich
Division for Patent Disputes, in Munich, Germany against MinTec, Inc. Minimally
Invasive Technologies alleging that the Cragg EndoPro(TM) System I and
Stentor(TM) endovascular device infringe a certain Cook patent. Following the
purchase of the assets of the Endotech/MinTec companies by the Company, the
Company assumed control of the litigation. A final hearing was held on May
12, 1999, and the court held no infringement of the Cook patents. The case was
dismissed in June 1999. Cook has appealed the decision and a hearing date has
not yet been set.
On June 30, 1998, Cook filed suit in the Regional Court, Dusseldorf Division for
Patent Disputes, in Dusseldorf, Germany against the Company alleging that the
Company's PASSAGER(TM) peripheral vascular stent graft and VANGUARD(TM)
endovascular aortic graft products infringe the same Cook patent. A hearing was
held on July 22, 1999 and a decision was received in September 1999 finding the
Company's products infringe the Cook patent. The Company appealed the decision
and a hearing date has not yet been set.
On March 18, 1999, Cook filed suit against the Company and SCIMED, alleging that
SCIMED's RADIUS(TM) coronary stent infringes a certain U.S. patent owned by
Cook. The suit was filed in the U.S. District Court for the Southern District of
Indiana seeking monetary damages and injunctive relief. On July 14, 1999, Cook
filed an amended complaint adding Meadox Medicals, Inc. (Meadox), a wholly owned
subsidiary of the Company, as a party to the suit, and adding a breach of
contract claim. The Company, SCIMED and Meadox have answered, denying the
allegations of the complaint.
The U.S. Federal Trade Commission (FTC) is investigating the Company's
compliance with a Consent Order dated May 5, 1995, pursuant to which the Company
licensed certain intravascular ultrasound technology to Hewlett-Packard Company
(HP). On February 1, 1999, HP filed a suit in the U.S. District Court for the
District of Massachusetts against the Company alleging violation of the Sherman
Antitrust Act and Massachusetts General Laws Chapter 93A and breach of the
License Agreement entered into pursuant to the FTC Consent Order. A hearing was
held in July 1999 on the Company's motion to dismiss the complaint. No ruling
from the court has been received with respect to this motion. A trial date has
not yet been set.
Beginning November 4, 1998, a number of shareholders of the Company, on behalf
of themselves and all others similarly situated, filed purported stockholders'
class action suits in the U.S. District Court for the District of Massachusetts
alleging that the Company and certain of its officers violated certain sections
of the Securities Exchange Act of 1934. The complaints principally alleged that
as a result of certain accounting irregularities involving the improper
recognition of revenue by the Company's subsidiary in Japan, the Company's
previously issued financial statements were materially false and misleading. In
August 1999, lead plaintiffs and lead counsel filed a purported consolidated
class action complaint adding allegations that the Company issued false and
misleading statements with respect to the launch of its NIR ON(TM) Ranger(TM)
with SOX(TM) coronary stent delivery system and the system's subsequent recall.
The Company and its officers have filed a motion to dismiss the consolidated
complaint.
The Company is aware that the U.S. Department of Justice is conducting an
investigation of matters that include the Company's NIR ON(TM) Ranger(TM) with
Sox(TM) coronary stent
-15-
<PAGE> 17
delivery system which was voluntarily recalled by the Company in October 1998
following reports of balloon leaks. The Company is cooperating fully in the
investigation.
The Company is involved in various other lawsuits from time to time. In
management's opinion, the Company is not currently involved in any legal
proceedings other than those specifically identified above which, individually
or in the aggregate, could have a material effect on the financial condition,
operations or cash flows of the Company.
During the third quarter of 1999, the Company accrued an additional $22 million
of litigation-related reserves to cover certain costs of defense. These expenses
related primarily to defense costs associated with stent-related litigation. As
of September 30, 1999, the potential exposure for accruable costs is estimated
to range from $51 million to $67 million. The Company's total accrual as of
September 30, 1999 for litigation-related reserves was approximately $51
million.
The Company believes that it has meritorious defenses against claims that it has
infringed patents of others. However, there can be no assurance that the Company
will prevail in any particular case. An adverse outcome in one or more cases in
which the Company's products are accused of patent infringement could have a
material adverse effect on the Company.
Further, product liability claims may be asserted in the future relative to
events not known to management at the present time. The Company has insurance
coverage which management believes is adequate to protect against product
liability losses as could otherwise materially affect the Company's financial
position.
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<PAGE> 18
Note I - Segment Reporting
Boston Scientific is a worldwide developer, manufacturer and marketer of medical
devices for less invasive procedures. The Company has four reportable operating
segments based on geographic regions: the United States, Europe, Japan and
Emerging Markets. Each of the Company's reportable segments generates revenues
from the sale of minimally invasive medical devices. The reportable segments
represent an aggregate of operating divisions.
Sales and operating results of reportable segments are based on internally
derived standard foreign exchange rates, which may differ from year to year and
do not include inter-segment profits. Because of the interdependence of the
reportable segments, the operating profit as presented may not be representative
of the geographic distribution that would occur if the segments were not
interdependent.
<TABLE>
<CAPTION>
United Emerging
(In millions) States Europe Japan Markets Total
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Three months ended September 30, 1999
Net sales $ 421 $109 $111 $ 45 $ 686
Operating income excluding special charges 162 17 69 8 256
Three months ended September 30, 1998
Net sales $ 375 $ 87 $ 87 $ 32 $ 581
Operating income excluding special charges 123 7 36 4 170
Nine months ended September 30, 1999
Net Sales $1,316 $349 $324 $124 $2,113
Operating income excluding special charges 512 64 198 24 798
Nine months ended September 30, 1998
Net sales $ 927 $270 $244 $ 83 $1,524
Operating income excluding special charges 288 53 130 8 479
</TABLE>
-17-
<PAGE> 19
A reconciliation of the totals reported for the reportable segments to the
applicable line items in the consolidated financial statements is as follows:
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
- ----------------------------------------------------------------------------------------------------------------------
(In millions) 1999 1998 1999 1998
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales:
Total net sales for reportable segments $686 $ 581 $2,113 $1,524
Foreign exchange 5 (5) 12 (7)
---------------------------------------------------
$691 $ 576 $2,125 $1,517
===================================================
Income (loss) before income taxes:
Total operating income excluding special
charges for reportable segments $ 256 $ 170 $ 798 $ 479
Corporate expenses and foreign exchange (151) (58) (302) (170)
Restructuring and merger-related credits (charges) 10 (671) 10 (662)
--- ------------------------------------------------
115 (559) 506 (353)
Other expense, net (31) (16) (106) (27)
---------------------------------------------------
$ 84 $(575) $ 400 $ (380)
===================================================
</TABLE>
Operating income (excluding special charges) for the U.S. and Europe for the
three months ended September 30, 1999 would have been approximately $161 million
and $20 million, respectively, and $529 million and $76 million, respectively,
for the nine months ended September 30, 1999 if certain costs had been allocated
between geographic regions and corporate expenses consistent with the allocation
method used in 1998.
-18-
<PAGE> 20
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
Net sales for the third quarter increased 20% to $691 million as compared to
$576 million in the third quarter of 1998. The third quarter results include the
operations of Schneider Worldwide (Schneider) which was acquired in the third
quarter of 1998. On a pro forma basis, assuming all Schneider revenues had been
included in the third quarter of 1998, net sales in the third quarter of 1999
increased 7%. Net sales for the nine months ended September 30, 1999 increased
40% to $2,125 million as compared to $1,517 million for the nine months ended
September 30, 1998. On a pro forma basis, assuming all Schneider revenues had
been included in the nine months ended September 30, 1998, net sales increased
20%.
During the third quarter of 1999, United States (U.S.) revenues increased
approximately 12% to $421 million, while international revenues increased
approximately 34% to $270 million compared to the same period in the prior year.
U.S. revenues as a percentage of worldwide sales decreased from 65% in the third
quarter of 1998 to 61% in the third quarter of 1999. The decrease in U.S.
revenues as a percentage of worldwide sales is due primarily to the launch of a
coronary stent in Japan during the first quarter of 1999 and the favorable
impact of foreign currency exchange rates on translation of international
revenues in the quarter as the Japanese yen strengthened versus the U.S. dollar.
Without the impact of foreign currency exchange rates on translation of
international revenues, worldwide sales for the third quarter increased
approximately 17% compared to the same period in the prior year. Worldwide
vascular and nonvascular sales increased 22% and 20%, respectively, compared to
the same period in the prior year. The increases in pro forma worldwide sales
and in vascular sales were primarily attributable to the Company's sales of
coronary stents in the U.S. and Japan. U.S. coronary stent revenues and
worldwide coronary stent revenues, primarily sales of the NIR(R) stent, were
approximately $107 million and $156 million, respectively, during the third
quarter of 1999 compared to $82 million and $109 million, respectively, during
the third quarter of 1998.
U.S. revenues increased approximately 42% to $1,316 million during the nine
months ended September 30, 1999, while international revenues increased
approximately 37% to $809 million compared to the same period in the prior year.
Without the impact of foreign currency exchange rates on translation of
international revenues, worldwide sales for the nine months ended September 30,
1999 increased approximately 38% compared to the same period in the prior year.
U.S. revenues as a percentage of worldwide sales increased from 61% during the
nine months ended September 30, 1998 to 62% during the nine months ended
September 30, 1999. Worldwide vascular and nonvascular sales increased 46% and
24%, respectively, compared to the same period in the prior year. The increases
in pro forma worldwide sales and in vascular sales were primarily attributable
to the Company's sales of coronary stents in the U.S. and Japan. U.S. coronary
stent revenues and worldwide coronary stent revenues, primarily sales of the
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<PAGE> 21
NIR(R) stent, were approximately $317 million and $461 million, respectively for
the nine months ended September 30, 1999 compared to $82 million and $165
million, respectively, during the same period of the prior year. Worldwide
NIR(R) coronary stent sales as a percentage of worldwide sales were
approximately 21% and 20% for the third quarter of 1999 and the nine months
ended September 30, 1999, respectively. The NIR(R) coronary stent is supplied by
Medinol Ltd. (Medinol) and unforeseen delays, stoppages or interruptions in the
supply and/or mix of the NIR(R) stent could adversely affect the operating
results of the Company.
On August 6, 1999, the Company announced it was voluntarily recalling from
commercial distribution and use its Rotablator(R) RotaLink(TM) Advancer and
RotaLink Plus(TM) rotational atherectomy systems. The original Rotablator
Rotational Atherectomy Device (Rotablator), which is the product currently sold
in Japan, was not affected by this recall. A program to resume the manufacture
and sale of the original Rotablator was put in place and the Company began
shipping product at the end of the third quarter. The Company estimates the net
income that was foregone related to the recalled devices and related products to
be approximately $14 million during the third quarter of 1999.
Net income for the third quarter was $55 million or $0.13 per share (diluted).
Third quarter results include a provision for excess inventories and purchase
commitments of approximately $62 million ($41 million, net of tax), a provision
for increased legal costs of $22 million ($15 million, net of tax), and a
special credit of $10 million ($7 million, net of tax) relating primarily to
previously recorded valuation reserves no longer deemed necessary. The Company
reported a net loss of $462 million or $1.18 per share in the third quarter of
1998. The results for the third quarter of 1998 include a $671 million ($524
million, net of tax) charge to account for purchased research and development
acquired in the $2.1 billion cash purchase of Schneider and a provision of $31
million ($21 million, net of tax) for costs associated with the Company's
decision to voluntarily recall the NIR ON(TM) Ranger(TM) with Sox(TM) coronary
stent systems in the U.S. Net income for the nine months ended September 30,
1999 was approximately $264 million or $0.64 per share. This compares to a net
loss of $335 million or $0.86 per share reported in the nine months ended
September 30, 1998.
Gross profit as a percentage of net sales decreased from 64.2% in the three
months ended September 30, 1998 to 59.0% in the three months ended September 30,
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<PAGE> 22
1999, and decreased from 67.5% in the nine months ended September 30, 1998 to
64.8% in the nine months ended September 30, 1999. The decrease in gross margin
is primarily due to a provision recorded in the third quarter of 1999 for excess
NIR(R) stent inventories and purchase commitments of $62 million ($41 million,
net of tax). The excess position was driven primarily by a shortfall in planned
third quarter NIR(R) stent revenues, a reduction in NIR(R) stent sales
forecasted for the remainder of 1999 and 2000, and strategic decisions regarding
NIR(R) stent versions to be launched. At September 30, 1999, the Company had
approximately $150 million of net NIR(R) coronary stent inventory and was
committed to purchase approximately $84 million of NIR(R) stents from Medinol.
In the third quarter of 1998, the Company provided $31 million ($21 million, net
of tax) for costs associated with the Company's decision to voluntarily recall
the NIR ON(TM) Ranger(TM) with Sox(TM) coronary stent system in the U.S.
As a result of multiple acquisitions, the Company's supply chain and
manufacturing processes have been weakened and there has been continued pressure
on gross margins, including write-downs for excess and obsolete inventory and
high manufacturing costs. During 1998, the Company initiated a full time global
program to focus on supply chain optimization and, during 1999, the program has
been expanded to include a review of manufacturing processes. The program is
designed to lower inventory levels and the cost of manufacturing, improve
absorption and minimize inventory write-downs. The infrastructure related to the
supply chain aspect of the program is substantially in place. However gross
margin benefits will be delayed until manufacturing processes are addressed, the
program has time to develop and until historical inventories are sold. The
Company continues to assess its plant network strategy.
Success of the global supply chain and manufacturing process initiative is
critical to realizing improved gross margins and reducing the Company's
inventory to an acceptable level. The Company's ability to effectively control
the supply of NIR(R) stents from Medinol could impact gross margins in the
future. Generally, the Company has less control over inventory manufactured by
third parties as compared to inventory manufactured internally. Furthermore,
gross margins could be significantly impacted by the purchase price of NIR(R)
coronary stents and the amount of NIR(R) coronary stent sales as a percentage of
worldwide sales. As average selling prices for the NIR(R) stents fluctuate, the
Company's cost to purchase the stents will change because cost is based on a
constant percentage of average selling prices. Therefore, if higher costing
NIR(R) stents are being sold as average selling prices are declining, gross
margins could be negatively impacted.
The coronary stent market is dynamic and highly competitive with significant
market share volatility. In addition, technology in the market is constantly
changing. This environment continues to increase the Company's risk profile in
its investment in coronary stent inventory.
Selling, general and administrative expenses as a percentage of net sales
decreased from 33% of net sales in the third quarter of 1998 to 32% of net sales
in the third quarter of 1999, and increased approximately $29 million from the
same period of the prior year to $220 million. Selling, general and
administrative expenses as a percentage of net sales decreased from 35% in the
nine months ended September 30, 1998 to 30% in the nine months ended September
30, 1999 and increased approximately $107 million from the same period of the
prior year to $631
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<PAGE> 23
million. The decrease as a percent of net sales for the nine month period is
primarily attributable to the launch of coronary stents in the U.S. and Japan,
the realization of synergies as the Company integrates Schneider into its
organization, and improved returns in certain geographic regions as the Company
continues to leverage its direct sales infrastructure. The increase in expense
dollars is primarily attributable to higher selling expenses as a result of the
launch of coronary stents in the U.S. and increased costs to expand the
Company's direct sales presence in certain geographic regions. Additionally,
during the third quarter of 1999, the Company recorded a provision for increased
legal costs of $22 million ($15 million, net of tax) to cover certain costs of
defense. These expenses relate primarily to defense costs associated with
stent-related litigation. Legal costs associated with asserting the Company's
patent portfolio and defending against claims that the Company's products
infringe the intellectual property of others are increasing. Similarly, legal
costs associated with non-patent litigation and compliance activities are also
rising. Depending upon the prevalence, significance and complexity of these
matters, the Company's legal provision could be adversely affected in the
future.
The Company is involved in various lawsuits, including patent infringement and
product liability suits, from time to time in the normal course of business. In
management's opinion, the Company is not currently involved in any legal
proceeding other than those specifically identified in the notes to the
unaudited condensed consolidated financial statements which, individually or in
the aggregate, could have a material effect on the financial condition,
operations and cash flows of the Company. The Company believes that it has
meritorious defenses against claims that it has infringed patents of others.
However, there can be no assurance that the Company will prevail in any
particular case. An adverse outcome in one or more cases in which the Company's
products are accused of patent infringement could have a material adverse effect
on the Company.
Further, product liability claims may be asserted in the future relative to
events not known to management at the present time. The Company has insurance
coverage which management believes is adequate to protect against such product
liability losses as could otherwise materially affect the Company's financial
position. The Company is aware that the U.S Department of Justice is conducting
an investigation of matters that include the Company's decision to voluntarily
recall the NIR ON(TM) Ranger(TM) with Sox(TM) coronary stent in the U.S. The
Company is cooperating fully in the investigation.
Amortization expense increased from $11 million in the third quarter of 1998 to
$23 million in the third quarter of 1999 and increased as a percentage of sales
from 1.9% to 3.3%. Amortization expense increased from $27 million in the nine
months ended September 30, 1998 to $69 million in the nine months ended
September 30, 1999 and increased as a percentage of sales from 1.8%
-22-
<PAGE> 24
to 3.2%. The increase is primarily a result of the amortization of intangibles
related to the purchase of Schneider.
Royalty expenses increased approximately 71% from $7 million in the third
quarter of 1998 to $12 million in the third quarter of 1999 and increased
approximately 67% from $21 million in the nine months ended September 30, 1998
to $35 million in the nine months ended September 30, 1999. The increase in
royalties is primarily due to royalty obligations assumed in connection with the
Schneider acquisition. Additionally, the Company continues to enter into
strategic technological alliances, some of which include royalty commitments.
Research and development expenses decreased as a percentage of net sales from 9%
in the third quarter of 1998 and the nine months ended September 30, 1998 to 7%
in the third quarter of 1999 and the nine months ended September 30, 1999.
Research and development expenses were $49 million in the third quarter of 1998
and $48 million in the third quarter of 1999 and increased from $143 million for
the nine months ended September 30, 1998 to $146 million for the nine months
ended September 30, 1999. The decrease as a percentage of sales is primarily
attributable to the launch of coronary stents in the U.S. and Japan and the
realization of synergies in connection with the Schneider acquisition. The
increase in research and development dollars reflects spending on new product
development programs and regulatory and clinical research, and reflects the
Company's continued commitment to refine existing products and procedures and to
develop new technologies that provide simpler, less traumatic, less costly and
more efficient diagnosis and treatment. The Company's research and development
projects acquired in connection with its prior business combinations are
generally progressing in line with the estimates set forth in the Company's 1998
Amended Annual Report on Form 10-K/A2. Certain products from the Schneider
coronary stent projects have been introduced to the market in the last year. As
part of a project consolidation program, the Schneider and Endotech/Mintec
abdominal aortic aneurysm projects have been integrated. The Company expects to
continue to pursue these research and development efforts and believes it has a
reasonable chance of completing the projects. However, research and development
projects are subject to risks and uncertainties and there can be no assurance of
project completion or that the resulting products will achieve commercial
viability. The trend in countries around the world toward more stringent
regulatory requirements for product clearance and more vigorous enforcement
activities has generally caused or may cause medical device manufacturers to
experience more uncertainty, greater risk and higher expenses.
During the third quarter, the Company identified and reversed restructuring and
merger-related charges of $10 million ($7 million, net of tax) no longer deemed
necessary. These amounts relate primarily to the restructuring charges accrued
in the fourth quarter of 1998 and reflect the reclassification of assets from
held for disposal to held for use following management's decision to resume a
development program previously planned to be eliminated. In addition, estimated
severance costs for 1998 initiatives were reduced as a result of attrition.
During the third quarter of 1998, the Company recorded a $671 million ($524
million, net of tax) charge to account for purchased research and development
acquired in the $2.1 billion cash purchase of Schneider. Additionally, in the
second quarter of
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<PAGE> 25
1998, the Company realigned its operating units and decided to operate Target
Therapeutics, Inc. (Target) independently instead of as a part of its vascular
division as was planned at the date of the Target acquisition. Management
believed that an independent Target would allow the business unit to develop its
technologies and markets more effectively than it would as part of the vascular
division. As a result of this decision, in the second quarter of 1998, the
Company reversed $20 million ($13 million, net of tax) of 1997 Target
merger-related charges primarily related to revised estimates for costs of
workforce reductions and costs of canceling contractual commitments. In
addition, in the second quarter of 1998, the Company recorded purchased research
and development of approximately $11 million in connection with a strategic
acquisition.
Interest expense increased from $16 million in the third quarter of 1998 to $26
million in the third quarter of 1999, and from $30 million in the nine months
ended September 30, 1998 to $96 million in the nine months ended September 30,
1999. The overall increase in interest expense is primarily attributable to a
significantly higher outstanding debt balance borrowed in conjunction with the
Schneider acquisition.
The Company's effective tax rate, excluding the impact of special charges
identified on the Statement of Operations, increased from approximately 33% in
the nine months ended September 30, 1998 to 34% in the nine months ended
September 30, 1999. The increase is primarily attributable to a shift in the mix
of U.S. and international business.
The Company has substantially completed the integration of all mergers and
acquisitions consummated prior to 1998 and expects to complete the integration
of Schneider by the end of 1999. Management believes it has developed a sound
plan for continuing and concluding the integration process, and that it will
achieve that plan. However, in view of the number of major transactions
undertaken by the Company, the dramatic change in the size of the Company and
the complexity of its organization resulting from these transactions, management
also believes that the successful implementation of its plan presents a
significant degree of difficulty. The failure to integrate these businesses
effectively could adversely affect the Company's operating results in the near
term, and could impair the Company's ability to realize the strategic and
financial objectives of these transactions.
Uncertainty remains with regard to future changes within the healthcare
industry. The trend towards managed care and economically motivated buyers in
the U.S. may result in continued pressure on selling prices of certain products
and resulting compression on gross margins. In addition to impacting selling
prices, the trend to managed care in the U.S. has also resulted in more complex
billing and collection procedures. The Company's ability to effectively react to
the changing environment may impact its bad debt and sales return provision in
the future. Further, the U.S. marketplace is increasingly characterized by
consolidation among healthcare providers and purchasers of medical devices that
prefer to limit the number of suppliers from whom they purchase medical
products.
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<PAGE> 26
There can be no assurance that these entities will continue to purchase products
from the Company.
International markets are also being affected by economic pressure to contain
reimbursement levels and healthcare costs. The Company's ability to benefit from
its international expansion may be limited by risks and uncertainties related to
economic conditions in these regions, competitive offerings, infrastructure
development, rights to intellectual property, and the ability of the Company to
implement its overall business strategy. Any significant changes in the
political, regulatory or economic environment where the Company conducts
international operations may have a material impact on revenues and profits.
Specifically, the deterioration in the Japan economy may impact the Company's
ability to collect its outstanding Japan receivables.
Although these factors may impact the rate at which Boston Scientific can grow,
the Company believes that it is well positioned to take advantage of
opportunities for growth that exist in the markets it serves.
LIQUIDITY AND CAPITAL RESOURCES
During the first quarter of 1999, the Company refinanced $1.7 billion of
commercial paper borrowings with proceeds from borrowings under its revolving
credit facilities (Facilities). On June 30, 1999, the Company completed a public
offering of 14,950,000 shares at a price of $39.875 per share under a shelf
registration filed with the Securities and Exchange Commission in September
1998. The public offering reduced the amount available for the issuance of
securities under the shelf registration to $604 million. The Company used the
net proceeds from its public offering of approximately $578 million to repay
indebtedness under its Facilities.
In conjunction with the public offering, the Company's borrowing availability
under its Facilities was reduced by the amount of the net proceeds of the
offering. At September 30, 1999, the Company had approximately $1.7 billion of
borrowings available under its Facilities, of which $743 million were
outstanding with a weighted average interest rate of 5.74%. During the third
quarter of 1999, the Company extended its $600 million 364-day credit facility
to September 2000. At September 30, 1999, the Company had no commercial paper
outstanding, however, the Company resumed issuance of its commercial paper
during October 1999. The Company intends to continue to borrow under its
Facilities until it is able to issue sufficient commercial paper at reasonable
rates. The Company has the ability to refinance a portion of its short-term debt
on a long-term basis through its credit facilities and expects a minimum of $193
million will remain outstanding through the next twelve months, and accordingly,
the Company has classified this portion of borrowings as long-term at September
30, 1999. The Facilities require the Company to maintain a specific ratio of
consolidated funded debt (as defined) to consolidated net worth (as
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<PAGE> 27
defined) plus consolidated funded debt of less than or equal to 60%. As of
September 30, 1999, the ratio was approximately 37%.
Cash and short-term investments totaled $72 million at September 30, 1999
compared to $75 million at December 31, 1998. Cash proceeds during the nine
months ended September 30, 1999 were generated primarily from the Company's
public offering, operating activities and the exercise of stock options. Cash
proceeds during the period were offset by the repayment of approximately $1.1
billion of outstanding debt obligations, payment of $128 million of
acquisition-related obligations and capital expenditures of approximately $57
million. Working capital increased to $53 million at September 30, 1999 from
current liabilities exceeding current assets by $353 million at December 31,
1998. The improvement in working capital is primarily attributable to the
repayment of short-term borrowings financed by net proceeds of the Company's
public offering in June 1999 and cash provided by operating activities.
Since early 1995, the Company has entered into several transactions involving
acquisitions and alliances, certain of which have involved equity investments.
As the healthcare environment continues to undergo rapid change, management
expects that it will continue to focus on strategic initiatives and/or make
additional investments in existing relationships. In connection with these
acquisitions, the Company has acquired numerous in-process research and
development projects. As the Company continues to build its research base in
future years, it is reasonable to assume that it will acquire additional
research and development platforms. Management does not expect acquisitions and
alliances to be significant during 1999. As of September 30, 1999, the Company's
cash obligations required to complete the balance of its rationalization
initiatives to integrate businesses related to its mergers and acquisitions and
its 1998 rationalization plan are estimated to be approximately $37 million.
Substantially all of these cash outlays will be completed by the first half of
2000.
Additionally, the Company is authorized to purchase on the open market up to
approximately 40 million shares of the Company's common stock. Stock repurchased
under the Company's systematic plan will be used to satisfy its obligations
pursuant to employee benefit and incentive plans. As of September 30, 1999, a
total of 20 million shares of the Company's common stock were repurchased under
the plan. Between November 1, 1999 and November 12, 1999, the Company
repurchased 2.5 million shares at an aggregate cost of approximately $52
million. The Company may also repurchase within its authorization shares outside
of the Company's systematic plan. These additional shares will also be used to
satisfy the Company's obligations pursuant to employee benefit and incentive
plans.
The Company expects that its cash and cash equivalents, marketable securities,
cash flows from operating activities and borrowing capacity will be sufficient
to meet its projected operating cash needs, including integration costs, through
December 31, 1999.
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<PAGE> 28
Year 2000 Readiness
The inability of business processes to continue to function correctly after the
beginning of the Year 2000 could have serious adverse effects on companies and
entities throughout the world. The Company has undertaken a global effort to
identify and mitigate Year 2000 issues in its information systems, products,
facilities and suppliers.
The Company established a multidisciplinary Year 2000 Task Force in 1998,
comprised of management from each of the Company's principal functional areas,
including Finance, Information Technology, Regulatory Affairs, Customer Service,
Manufacturing, Distribution, Purchasing, Facilities, Legal and Communications. A
core team and a program management office have also been established for
coordinating and tracking all Year 2000 issues. This office is comprised of
Company management and staff and representatives of an experienced Year 2000
consulting firm. These efforts report directly to members of the Company's
Executive Committee.
An independent consulting firm has been working with the Company for over three
years to implement a global information system that was designed and has been
tested to be Year 2000 compliant. In addition to the Company's information
systems project, other internal systems are being addressed largely through the
replacement and testing of much of the Company's older systems. The efforts are
both company-wide and site specific, spanning the range from the Information
Technology department systems to manufacturing operations (including production
facilities, support equipment, and process control) and infrastructure
technologies.
The vast majority of the Company's products are not date-sensitive and are
therefore unaffected by Year 2000 issues. For the remaining products, functional
performance is unaffected by the time and date displayed.
Through September 30, 1999, the Company has expended in excess of $110 million
to implement and operate a Year 2000 compliant global information system and
other costs relating to Year 2000 compliance. The Company does not anticipate
that additional compliance costs will have a material impact on its business
operations or its financial condition.
The Company relies on third party material and service providers. A disruption
in the supply from any of these providers due to Year 2000 issues could
potentially affect the Company's operations. To minimize this risk, the Company
is completing its evaluation of all critical third party providers' compliance
efforts, including their contingency plans should a Year 2000 problem arise, as
well as alternative sources of supply. The Company has surveyed its largest
customers concerning their anticipated purchase activity with respect to
potential inventory needs
-27-
<PAGE> 29
as a result of Year 2000 concerns. The Company has also evaluated its current
finished goods and emergency stocking levels worldwide. At this time, the
Company believes that it will have an adequate supply to meet customer
expectations but intends to monitor customer purchase activity during the fourth
quarter to identify and respond to any unusual ordering patterns.
The Company believes that its Year 2000 program will identify and correct all
material non-compliant systems and operations before the end of 1999. The
Company expects to have contingency plans that will avoid failures having a
material effect on the Company's business operations or financial condition in
place before the end of 1999.
There can be no assurance that the Company's Year 2000 program will identify and
correct all non-compliant systems of the Company and its third party service
providers or that any such failure will not have a material effect on the
Company's business operations or financial condition.
Euro Conversion
On January 1, 1999, eleven of the fifteen member countries of the European Union
established fixed conversion rates between their existing sovereign currencies
and the euro. The participating countries agreed to adopt the euro as their
common legal currency on that date. Fixed conversion rates between these
participating countries' existing currencies (the legacy currencies) and the
euro were established as of that date. The legacy currencies are scheduled to
remain legal tender as denominations of the euro until at least January 1, 2002
(but not later than July 1, 2002). During this transition period, parties may
settle transactions using either the euro or a participating country's legacy
currency. The Company is addressing the potential impact resulting from the euro
conversion, including adaptation of information technology systems; competitive
implications related to pricing and foreign currency considerations.
Management currently believes that the euro will not have a material impact
related to its information technology systems or foreign currency exposures. The
increased price transparency resulting from the use of a single currency in the
eleven participating countries may affect the ability of the Company to price
its products differently in the various European markets. A possible result of
this is price harmonization at lower average prices for products sold in some
markets. However, uncertainty exists as to the effects the euro will have on the
marketplace.
-28-
<PAGE> 30
CAUTIONARY STATEMENT FOR PURPOSES OF THE SAFE HARBOR PROVISIONS OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995
This report contains forward-looking statements. The Company desires to take
advantage of the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995 and is including this statement for the express purpose of
availing itself of the protections of the safe harbor with respect to all
forward-looking statements. Forward-looking statements contained in this report
include, but are not limited to, statements with respect to and the Company's
performance may be affected by: (a) the Company's ability to obtain benefits
from the Schneider acquisition, including purchased research and development and
physician and hospital relationships; (b) the process, outlays and plan for the
integration of businesses acquired by the Company, and the successful and timely
implementation of the rationalization plan; (c) the timing of the Company's
supply chain initiatives and the Company's ability to achieve gross margin
benefits and inventory reductions; (d) the potential impacts of continued
consolidation among healthcare providers, trends towards managed care and
economically motivated buyers, healthcare cost containment, more stringent
regulatory requirements and more vigorous enforcement activities; (e) the
Company's belief that it is well positioned to take advantage of opportunities
for growth that exist in the markets it serves; (f) the Company's continued
commitment to refine existing products and procedures and to develop new
technologies that provide simpler, less traumatic, less costly and more
efficient diagnosis and treatment; (g) the Company's ability to launch products
on a timely basis, including products resulting from purchased research and
development; (h) risks associated with international operations; (i) the
potential effects of foreign currency fluctuations on revenues, expenses and
resulting margins and the trend toward increasing sales and expenses denominated
in foreign currencies; (j) the ability of the Company to manage accounts
receivable, manufacturing costs and inventory levels and mix and to react
effectively to the changing managed care environment, worldwide economic
conditions and market share volatility in the coronary stent market; (k) the
ability of the Company to meet its projected cash needs through the end of 1999;
(l) the effect of litigation and compliance activities on the Company's legal
provision; (m) costs and risks associated with implementing Year 2000 compliance
and business process reengineering; (n) unforeseen delays, stoppages or
interruptions in the supply and/or mix of the NIR(R) stent, difficulties in
managing inventory relating to new product introductions, and the Company's cost
to purchase the NIR(R) stent; (o) the development of competing or
technologically advanced products by our competitors; (p) the Company's ability
to resume commercial volume manufacture and sale of the Rotablator(R)
Rotalink(TM) rotational atherectomy systems; (q) the Company's program to
repurchase shares of its Company stock; (r) the Company's expectation as of
September 30, 1999 that a minimum of $193 million of short-term debt supported
by its revolving credit facilities will remain outstanding through the next
twelve months; (s) the Company's ability to fund development of purchased
technology at currently estimated costs and to realize value assigned to
in-process research and development and other intangible assets; (t) the impact
of stockholder class action,
-29-
<PAGE> 31
patent, product liability and other litigation, the outcome of the U.S.
Department of Justice investigation, and the adequacy of the Company's product
liability insurance; (u) the potential impact resulting from the euro
conversion, including adaptation of information technology systems, competitive
implications related to pricing and foreign currency considerations; and (v) the
timing, size and nature of strategic initiatives available to the Company.
Several important factors, in addition to the specific factors discussed in
connection with such forward-looking statements individually, could affect the
future results of the Company and could cause those results to differ materially
from those expressed in the forward-looking statements contained herein. Such
additional factors include, among other things, future economic, competitive and
regulatory conditions, demographic trends, third-party intellectual property,
financial market conditions and future business decisions of Boston Scientific
and its competitors, all of which are difficult or impossible to predict
accurately and many of which are beyond the control of Boston Scientific.
Therefore, the Company wishes to caution each reader of this report to consider
carefully these factors as well as the specific factors discussed with each
forward-looking statement in this report and as disclosed in the Company's
filings with the Securities and Exchange Commission as such factors, in some
cases, have affected, and in the future (together with other factors) could
affect, the ability of the Company to implement its business strategy and may
cause actual results to differ materially from those contemplated by the
statements expressed herein.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
There has been no material change in the Company's assessment of its sensitivity
to market risk since its presentation set forth in its Amended Annual Report on
Form 10-K/A2 for the year ended December 31, 1998.
-30-
<PAGE> 32
PART II
OTHER INFORMATION
ITEM 1: LEGAL PROCEEDINGS
Note H Commitments and Contingencies to the Company's unaudited condensed
consolidated financial statements contained elsewhere in this Quarterly
Report is incorporated herein by reference.
ITEM 5: OTHER INFORMATION
On October 28, 1999, the Company announced that John E. Pepper and
Warren B. Rudman were elected to serve as members of its Board of
Directors. The Company also announced that Dale A. Spencer retired his
directorship after a four and one half year term. Mr. Pepper, Chairman,
Executive Committee of the Board of Directors of Procter & Gamble, was
elected to serve as a Class III director to fill the vacancy created by
Mr. Spencer's retirement. Mr. Pepper's term will expire at the
Company's 2001 Annual Meeting of Stockholders. Mr. Rudman, a partner in
the law firm of Paul, Weiss, Rifkind, Wharton & Garrison and former
U.S. Senator from New Hampshire, was elected to serve as a Class I
director with a term expiring at the Company's 2002 Annual Meeting of
Stockholders.
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibit 10.1 - Form of Third Amendment to Boston Scientific
Corporation 401(k) Plan
Exhibit 10.2. - Form of Amended and Restated Credit
Agreement among Boston Scientific
Corporation, The Several Lenders and The
Chase Manhattan Bank dated as of August 19,
1999
(b) The following reports were filed during the quarter ended September
30, 1999:
None.
-31-
<PAGE> 33
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized on November 15, 1999.
BOSTON SCIENTIFIC CORPORATION
By: /s/ Lawrence C. Best
----------------------------
Name: Lawrence C. Best
Title: Chief Financial Officer and
Senior Vice President -
Finance and Administration
<PAGE> 1
Exhibit 10.1
BOSTON SCIENTIFIC CORPORATION 401(k) PLAN
Third Amendment
Pursuant to Section 10.1 of the Boston Scientific Corporation 401(k)
Plan (the "Plan"), Boston Scientific Corporation hereby amends the Plan as
follows, effective as of the dates set forth herein:
1. Section 3.3 is hereby amended by replacing paragraphs (a), (b), and
(c) thereof in their entirety, effective January 1, 2000, with the following new
paragraphs:
"(a) On a bi-weekly basis, each Participating
Employer will make a Matching Contribution to the Trust for
the benefit of each Participant on whose behalf it made
Elective Contributions for the period. The amount of Matching
Contributions made by a Participating Employer for the period
shall be equal to (i) 75% of the Elective Contributions made
on behalf of the Participant for the period which do not
exceed 1% of the Participant's Compensation for such period,
plus (ii) 50% of the Elective Contributions made on behalf of
the Participant for the period which exceed 1% but do not
exceed 4% of the Participant's Compensation for such period.
(b) If (i) a Participant is an Eligible Employee on
the last day of the Plan Year, and (ii) the aggregate Matching
Contributions made by his or her Participating Employer under
paragraph (a) above to the Trust for the benefit of such
Participant with respect to such Plan Year are less than the
lesser of (1) 75% of the Participant's Elective Contributions
for such Plan Year which do not exceed 1% of the Participant's
Compensation for such Year plus 50% of the Participant's
Elective Contributions for such Plan Year which exceed 1% of
the Participant's Compensation for such Year; or (2) 2.25% of
such Participant's Compensation in such Plan Year, then the
Participating Employer shall make a further contribution to
the Trust, for the benefit of such Participant, to be credited
to his or her Matching Contribution Account, such that the
aggregate Matching Contributions made by the Participating
Employer for the benefit of such Participant for the Plan Year
under this Section shall equal the lesser of the amounts set
forth in clauses (1) and (2) above.
(c) In addition to the matching contributions
described in paragraphs (a) and (b) above, for the periods
described below, a special additional matching contribution
shall be made on behalf of Participants who were employed by
either Schneider (USA) Inc. or Corvita Corporation on
September 10, 1998 (the "eligible Participants"):
<PAGE> 2
(i) For the period beginning September 10,
1998 and ending December 31, 1999, the special
matching contribution shall be equal to (1) 50% of
the Elective Contributions made on behalf of such
eligible Participant which do not exceed 2% of the
eligible Participant's Compensation for such period,
plus (2) 50% of the Elective Contributions which
exceed 4% but do not exceed 6% of such eligible
Participant's Compensation for such period; and
(ii) For the period beginning January 1,
2000 and ending September 9, 2000, the special
matching contribution shall be equal to (1) 25% of
the Elective Contributions made on behalf of such
eligible Participant which do not exceed 1% of the
eligible Participant's Compensation for such period,
plus (2) 50% of the Elective Contributions made on
behalf of such eligible Participant which exceed 1%
but do not exceed 2% of the eligible Participant's
Compensation for such period, plus (3) 50% of the
Elective Contributions which exceed 4% but do not
exceed 6% of such eligible Participant's Compensation
for such period."
2. Section 6.3 is hereby amended, effective as of January 1, 1999, by
inserting a new sentence to the end thereof to read as follows:
"For the avoidance of doubt, nothing in this Section 6.3
confers a substantive distribution right to any Participant; a
Participant must be eligible to receive a distribution
pursuant to the other provisions of this Article 6 in order
for this Section 6.3 to apply."
3. Section 14.14 is hereby amended by replacing the last sentence
thereof with the following sentence, effective as of January 1, 1999:
"In no event will an individual become an Eligible Employee
while he or she is characterized or treated by an Affiliated
Employer as (i) a "leased employee" within the meaning of Code
414(n); or (ii) a student intern."
4. The Plan is hereby amended, effective as of January 1, 1998, to
increase the small cash-out amount under the Plan from $3,500 to $5,000.
Pursuant to this amendment, all references to "$3,500" contained in the Plan are
hereby replaced with "$5,000", effective as of January 1, 1998.
-2-
<PAGE> 3
IN WITNESS WHEREOF, Boston Scientific Corporation has caused this
amendment to be executed in its name and on its behalf this 28th day of October,
1999.
BOSTON SCIENTIFIC CORPORATION
By: Paul W. Sandman
--------------------------------------
Title: Senior Vice President and General Counsel
-3-
<PAGE> 1
Exhibit 10.2
================================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
BOSTON SCIENTIFIC CORPORATION,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
ABN AMRO BANK N.V.,
AS SYNDICATION AGENT,
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT,
BARCLAYS BANK PLC,
AS SYNDICATION AGENT,
WACHOVIA BANK, N.A.,
AS SYNDICATION AGENT,
CHASE SECURITIES INC.,
AS ARRANGER AND AS BOOK MANAGER,
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
DATED AS OF AUGUST 19, 1999
================================================================================
<PAGE> 2
TABLE OF CONTENTS
-----------------
PAGE
SECTION 1. DEFINITIONS........................................................1
1.1 Defined Terms....................................................1
1.2 Other Definitional Provisions...................................14
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................14
2.1 Revolving Credit Commitments....................................14
2.2 Procedure for Revolving Credit Borrowing........................15
2.3 Facility Fee; Utilization Fee...................................15
2.4 Termination or Reduction of Revolving Credit Commitments;
Extension of Termination Date..............................16
2.5 Repayment of Revolving Credit Loans.............................17
2.6 CAF Advances....................................................17
2.7 Procedure for CAF Advance Borrowing.............................18
2.8 Repayment of CAF Advances.......................................20
2.9 Certain Restrictions with Respect to CAF Advances...............21
SECTION 3. CERTAIN PROVISIONS APPLICABLE TO THE LOANS........................21
3.1 Optional Prepayments............................................21
3.2 Conversion and Continuation Options.............................21
3.3 Minimum Amounts and Maximum Number of Tranches..................21
3.4 Interest Rates and Payment Dates................................22
3.5 Computation of Interest and Fees................................22
3.6 Inability to Determine Interest Rate............................23
3.7 Pro Rata Treatment and Payments.................................23
3.8 Illegality......................................................24
3.9 Requirements of Law.............................................25
3.10 Taxes..........................................................26
3.11 Indemnity......................................................27
3.12 Change of Lending Office; Removal of Lender....................28
3.13 Evidence of Debt...............................................28
SECTION 4. REPRESENTATIONS AND WARRANTIES....................................29
4.1 Financial Condition.............................................29
4.2 No Change.......................................................30
4.3 Corporate Existence; Compliance with Law........................30
4.4 Corporate Power; Authorization; Enforceable Obligations.........30
4.5 No Legal Bar....................................................30
4.6 No Material Litigation..........................................31
4.7 No Default......................................................31
4.8 Intellectual Property...........................................31
4.9 Taxes.......................................................... 31
<PAGE> 3
4.10 Federal Regulations............................................31
4.11 ERISA..........................................................32
4.12 Investment Company Act; Other Regulations......................32
4.13 Purpose of Loans...............................................32
4.14 Environmental Matters..........................................32
4.15 Disclosure.....................................................33
4.16 Year 2000 Matters..............................................33
SECTION 5. CONDITIONS PRECEDENT..............................................34
5.1 Conditions to Initial Loans.....................................34
5.2 Conditions to Each Loan.........................................34
SECTION 6. AFFIRMATIVE COVENANTS.............................................35
6.1 Financial Statements............................................35
6.2 Certificates; Other Information.................................36
6.3 Payment of Obligations..........................................36
6.4 Conduct of Business and Maintenance of Existence................36
6.5 Maintenance of Property; Insurance..............................36
6.6 Inspection of Property; Books and Records; Discussions..........36
6.7 Notices.........................................................37
SECTION 7. NEGATIVE COVENANTS................................................37
7.1 Funded Debt Ratio...............................................37
7.2 Limitation on Liens.............................................37
7.3 Limitation on Fundamental Changes...............................38
SECTION 8. EVENTS OF DEFAULT.................................................39
SECTION 9. THE ADMINISTRATIVE AGENT; THE ARRANGER............................42
9.1 Appointment.....................................................42
9.2 Delegation of Duties............................................42
9.3 Exculpatory Provisions..........................................42
9.4 Reliance by Administrative Agent................................42
9.5 Notice of Default...............................................43
9.6 Non-Reliance on Administrative Agent and Other Lenders..........43
9.7 Indemnification.................................................43
9.8 Administrative Agent in Its Individual Capacity.................44
9.9 Successor Administrative Agent..................................44
9.10 The Arranger, the Book Manager and the Syndication Agents.......44
SECTION 10. MISCELLANEOUS....................................................45
10.1 Amendments and Waivers.........................................45
10.2 Notices........................................................45
10.3 No Waiver; Cumulative Remedies.................................46
10.4 Survival of Representations and Warranties.....................46
<PAGE> 4
10.5 Payment of Expenses and Taxes..................................46
10.6 Successors and Assigns; Participations and Assignments.........47
10.7 Adjustments; Set-off...........................................50
10.8 Counterparts...................................................51
10.9 Severability...................................................51
10.10 Integration...................................................51
10.11 GOVERNING LAW.................................................51
10.12 Submission To Jurisdiction; Waivers...........................51
10.13 Acknowledgments...............................................52
10.14 Confidentiality...............................................52
10.15 WAIVERS OF JURY TRIAL.........................................52
<PAGE> 5
PAGE
-iv-
<PAGE> 6
PAGE
-v-
<PAGE> 7
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 19,
1999, among (i) BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (the
"BORROWER"), (ii) the several banks and other financial institutions from time
to time parties to this Agreement (the "LENDERS"), (iii) ABN AMRO BANK N.V., a
Dutch banking corporation, BANK OF AMERICA, N.A., a national banking
association, BARCLAYS BANK PLC, a banking corporation organized under the laws
of England, and WACHOVIA BANK, N.A., a national banking association, 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, dated as of
September 4, 1998, as amended by the Amendment, dated as of February 23, 1999
(the "EXISTING CREDIT AGREEMENT"), among (i) Boston Scientific Corporation, (ii)
the several banks and other financial institutions from time to time parties
thereto (the "EXISTING LENDERS"), (iii) ABN AMRO Bank N.V., Bank of America
National Trust and Savings Institution, and Barclays Bank PLC, as syndication
agents, (iv) Chase Securities Inc., as arranger and as book manager and (v) The
Chase Manhattan Bank, as administrative agent for the Lenders thereunder, the
Existing Lenders have agreed to make certain extensions of credit to the
Borrower;
WHEREAS, the Borrower has requested the Existing Lenders to
amend and restate the Existing Credit Agreement (a) to reallocate the
Commitments of the Existing Lenders, (b) to provide for the addition of new
lenders (the "NEW LENDERS") and (c) to make certain other amendments to the
Existing Credit Agreement; and
WHEREAS, the Administrative Agent and the Existing Lenders are
willing to amend and restate the Existing Credit Agreement and the New Lenders
are willing to become parties hereto, in each case on and subject to the terms
and conditions contained herein;
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base
<PAGE> 8
2
CD Rate in effect on such day plus 1% and (c) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For purposes
hereof: "PRIME RATE" shall mean the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by Chase in connection with
extensions of credit to debtors); "BASE CD RATE" shall mean the sum of
(a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is
one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"THREE-MONTH SECONDARY CD RATE" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the
next preceding Business Day) by the Board of Governors of the Federal
Reserve System (the "BOARD") through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 A.M., New York City time,
on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day
by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. Any change in the ABR due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"ABR LOANS": Revolving Credit Loans bearing interest based
upon the ABR.
"ADMINISTRATIVE AGENT": Chase, together with its Affiliates,
as the arranger of the Revolving Credit Commitments and as the agent
for the Lenders under this Agreement and the other Loan Documents.
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
<PAGE> 9
3
"AGGREGATE AVAILABLE REVOLVING CREDIT COMMITMENTS": the
aggregate amount of the Available Revolving Credit Commitments of all
of the Lenders.
"AGGREGATE REVOLVING CREDIT COMMITMENTS": the aggregate amount
of the Revolving Credit Commitments of all of the Lenders.
"AGGREGATE REVOLVING CREDIT OUTSTANDINGS": as at any date of
determination with respect to any Lender, the aggregate unpaid
principal amount of such Lender's Revolving Credit Loans on such date.
"AGGREGATE TOTAL OUTSTANDINGS": as at any date of
determination with respect to any Lender, an amount equal to the sum of
(a) the Aggregate Revolving Credit Outstandings of such Lender on such
date and (b) the aggregate unpaid principal amount of such Lender's CAF
Advances on such date.
"AGREEMENT": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"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:
RATING EURODOLLAR LOANS ABR LOANS
Rating I 24.0 0
Rating II 27.0 0
Rating III 30.0 0
Rating IV 52.5 0
Rating V 62.5 0
Rating VI 82.5 0
"ASSIGNEE": as defined in subsection 10.6(c).
"AVAILABLE REVOLVING CREDIT COMMITMENT": as at any date of
determination with respect to any Lender, an amount equal to the
excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date OVER (b) the Aggregate Revolving
Credit Outstandings of such Lender on such date.
"BOARD": as defined in the definition of ABR.
"BOOK MANAGER": as defined in the preamble hereto.
"BORROWER": as defined in the preamble hereto.
<PAGE> 10
4
"BORROWING DATE": any Business Day specified in a notice
pursuant to subsection 2.2 or 2.7 as a date on which the Borrower
requests the Lenders to make Loans hereunder.
"BUSINESS": as defined in subsection 4.14.
"BUSINESS DAY": (a) when such term is used to describe a day
on which a borrowing, payment or interest rate determination is to be
made in respect of a Eurodollar Loan or a LIBO Rate CAF Advance, such
day shall be a London Banking Day and (b) when such term is used in any
context in this Agreement (including as described in the foregoing
clause (a)), such term shall mean a day which, in addition to complying
with any applicable requirements set forth in the foregoing clause (a),
is a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close.
"CAF ADVANCE": each CAF (competitive advance facility) Advance
made pursuant to subsection 2.6.
"CAF ADVANCE AVAILABILITY PERIOD": the period from and
including the Effective Date to and including the date which is 7 days
prior to the Termination Date.
"CAF ADVANCE CONFIRMATION": each confirmation by the Borrower
of its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit E and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF ADVANCE INTEREST PAYMENT DATE": as to each CAF Advance,
each interest payment date specified by the Borrower for such CAF
Advance in the related CAF Advance Request.
"CAF ADVANCE MATURITY DATE": as to any CAF Advance, the date
specified by the Borrower pursuant to subsection 2.7(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF ADVANCE NOTE": as defined in subsection 3.13(e).
"CAF ADVANCE OFFER": each offer by a Lender to make CAF
Advances pursuant to a CAF Advance Request, which offer shall contain
the information specified in Exhibit D and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF ADVANCE REQUEST": each request by the Borrower for
Lenders to submit bids to make CAF Advances, which request shall
contain the information in respect of such requested CAF Advances
specified in Exhibit C and shall be delivered to the
<PAGE> 11
5
Administrative Agent in writing, by facsimile transmission, or by
telephone, immediately confirmed by facsimile transmission.
"CAPITAL STOCK": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"C/D ASSESSMENT RATE": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation (the "FDIC") classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. ss. 327.4 (or any
successor provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such institution
in the United States.
"C/D RESERVE PERCENTAGE": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time deposits
in Dollars having a maturity of 30 days or more.
"CHASE": The Chase Manhattan Bank, a New York banking
corporation.
"CLOSING DATE": the first date on or before September 8, 1999,
on which the conditions precedent set forth in subsection 5.1 shall be
satisfied.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT PERIOD": the period from and including the
Effective Date to but not including the Termination Date or such
earlier date on which the Revolving Credit Commitments shall terminate
as provided herein.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"CONSOLIDATED FUNDED DEBT": at any time, all Indebtedness of
the Borrower and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
"CONSOLIDATED NET WORTH": at any time, all amounts which
would, in accordance with GAAP, be included under shareholders' equity
or classified as temporary equity, as prescribed by the Financial
Accounting Standards Board or Securities and Exchange Commission (e.g.
contingent stock repurchase obligations), on a consolidated balance
<PAGE> 12
6
sheet of the Borrower and its Subsidiaries as at such time; PROVIDED,
that in computing Consolidated Net Worth, no deductions shall be made
with respect to charges for purchased research and development related
to the Schneider Acquisition.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"DEFAULT": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"DOLLARS" and "$": dollars in lawful currency of the United
States of America.
"EFFECTIVE DATE": September 8, 1999; provided that the Closing
Date shall have occurred on or prior to such date.
"ENVIRONMENTAL LAWS": any and all applicable foreign, Federal,
state, local or municipal laws, rules, regulations, statutes,
ordinances, codes, decrees, or other enforceable requirements or orders
of any Governmental Authority or other Requirements of Law regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to
a Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of such System.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan or CAF Advance, the
rate per annum determined by the Administrative Agent to be the offered
rate for deposits in Dollars with a term comparable to such Interest
Period that appears on the applicable Telerate Page at approximately
11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period; PROVIDED, HOWEVER, that if at any time for any
reason such offered rate does not appear on a Telerate Page,
"Eurodollar Base Rate" shall mean, with respect to each day during each
Interest Period pertaining to such Loan or CAF Advance, the rate per
annum equal to the average (rounded upward to the nearest 1/16th of 1%)
of the
<PAGE> 13
7
respective rates notified to the Administrative Agent by each of the
Reference Lenders as the rate at which such Reference Lender is offered
deposits in Dollars at or about 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period in the London
interbank market for delivery on the first day of such Interest Period
for the number of days comprised therein.
"EURODOLLAR LOANS": Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each
Interest Period pertaining to a Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%):
EURODOLLAR BASE RATE
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EVENT OF DEFAULT": any of the events specified in Section 8,
PROVIDED that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"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 Medium-Term
Facility, exceeds (ii) (a) with respect to Rating 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 Medium-Term Facility (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 Rating 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 Medium-Term Facility (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:
<PAGE> 14
8
Facility
Rating Fee Rate
------ --------
Rating I 6.0
Rating II 8.0
Rating III 10.0
Rating IV 10.0
Rating V 12.5
Rating VI 17.5
"FEE COMMENCEMENT DATE": the Effective Date.
"FINANCING LEASE": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"FIXED RATE CAF ADVANCE": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"FIXED RATE CAF ADVANCE REQUEST": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate
(as opposed to a rate composed of the Eurodollar Rate plus (or minus) a
margin).
"GAAP": generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the
audited financial statements referred to in subsection 4.1.
"GOVERNMENTAL AUTHORITY": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING
PERSON"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "PRIMARY OBLIGATIONS") of
any other unrelated third Person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i)
to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds
(1) for the purchase or payment of any such primary obligation or (2)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to
<PAGE> 15
9
make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the owner of any such primary obligation against loss in
respect thereof; PROVIDED, HOWEVER, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection
in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing person may
be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"INDEBTEDNESS": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices and earn-outs and other similar
obligations in respect of acquisition and other similar agreements),
(b) any other indebtedness of such Person which is evidenced by a note,
bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person
and (e) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become
liable for the payment thereof.
"INSOLVENCY": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of
such Interest Period, and (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three
months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period.
"INTEREST PERIOD": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the Borrowing
Date or conversion date, as the case may be, with respect to
such Eurodollar Loan and ending one, two, three or six months
(or, if available to all Lenders, nine or twelve months)
thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto; and
<PAGE> 16
10
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months (or,
if available to all Lenders, nine or twelve months)
thereafter, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(2) any Interest Period in respect of any Loan made
by any Lender that would otherwise extend beyond the
Termination Date applicable to such Lender shall end on such
Termination Date; and
(3) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(b) with respect to any LIBO Rate CAF Advance, the period
beginning on the Borrowing Date with respect thereto and ending on the
CAF Advance Maturity Date with respect thereto.
"LIBO RATE CAF ADVANCE": any CAF Advance made pursuant to a
LIBO Rate CAF Advance Request.
"LIBO RATE CAF ADVANCE REQUEST": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at an interest
rate equal to the Eurodollar Rate plus (or minus) a margin.
"LIEN": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"LOAN": any Revolving Credit Loan or CAF Advance.
<PAGE> 17
11
"LOAN DOCUMENTS": this Agreement and any Notes.
"LONDON BANKING DAY": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"MAJORITY LENDERS": (a) at any time prior to the termination
of the Revolving Credit Commitments, Lenders, the Revolving Credit
Commitment Percentages of which aggregate more than 50%; and (b) at any
time after the termination of the Revolving Credit Commitments, Lenders
whose Aggregate Total Outstandings aggregate more than 50% of the
Aggregate Total Outstandings of all Lenders.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a)
the business, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder; PROVIDED that the acquisition related
charges and purchased research and development recorded or to be
recorded in respect of the Schneider Acquisition shall not be a
Material Adverse Effect.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"MEDIUM TERM FACILITY": the Credit Agreement, dated as of
September 4, 1998, as amended, among the Borrower, the lenders parties
thereto, The Chase Manhattan Bank, as administrative agent, and others,
providing for a $1,000,000,000 revolving credit, multicurrency and
competitive advance facility.
"MOODY'S": Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NON-EXCLUDED TAXES": as defined in subsection 3.10.
"NOTES": the collective reference to any Revolving Credit
Notes and any CAF Advance Notes.
"PARTICIPANT": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
<PAGE> 18
12
"PERSON": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"PROPERTIES": as defined in subsection 4.14.
"RATING": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt
of the Borrower, as announced by the Rating Agencies from time to time.
"RATING AGENCIES": collectively, S&P and Moody's.
"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 VI": the respective Ratings set forth below:
Rating
Category S&P Moody's
-------- --- -------
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
<PAGE> 19
13
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.
"REFERENCE LENDERS": Chase, Bank of America, N.A., Barclays
Bank PLC, ABN AMRO Bank N.V. and Wachovia Bank, N.A.
"REGISTER": as defined in subsection 10.6(d).
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. ss. 4043.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"RESPONSIBLE OFFICER": with respect to the Borrower, the chief
executive officer and the president of the Borrower or, with respect to
financial matters, the chief financial officer of the Borrower.
"REVOLVING CREDIT COMMITMENT": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the
Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such
<PAGE> 20
14
Lender's name on Schedule I under the heading "Revolving Credit
Commitment," as such amount may be reduced from time to time in
accordance with the provisions of this Agreement.
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any Lender at
any time, the percentage which such Lender's Revolving Credit
Commitment at such time constitutes of the Aggregate Revolving Credit
Commitments at such time (or, if the Revolving Credit Commitments have
terminated or expired, the percentage which (a) the Aggregate Revolving
Credit Outstandings of such Lender at such time then constitutes of (b)
the Aggregate Revolving Credit Outstandings of all Lenders at such
time).
"REVOLVING CREDIT LOANS": as defined in subsection 2.1.
"REVOLVING CREDIT NOTE": as defined in subsection 3.13(d).
"S&P": Standard & Poor's Ratings Services.
"SCHNEIDER ACQUISITION": the acquisition by the Borrower and
its Subsidiaries of the stock and assets related to the Schneider
business from Pfizer, Inc.
"SIGNING DATE": the date on which the Lenders have signed this
Agreement.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"SUBSIDIARY": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"SYNDICATION AGENTS": as defined in the preamble hereto.
"TERMINATION DATE": with respect to a Lender, the date which
is 364 days after the Fee Commencement Date, as such date may be
extended with respect to such Lender pursuant to subsection 2.4.
"TRANCHE": the collective reference to Eurodollar Loans, the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day); Tranches may be
identified as "EURODOLLAR TRANCHES".
<PAGE> 21
15
"TRANSFEREE": as defined in subsection 10.6(f).
"TYPE": as to any Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan.
"UTILIZATION FEE RATE": 10 bps per annum, for Rating Category
III and above; 12.5 bps for Rating Category IV and below.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("REVOLVING CREDIT LOANS") in Dollars to the Borrower from time to time during
the Commitment Period so long as after giving effect thereto (i) the Available
Revolving Credit Commitment of each Lender is greater than or equal to zero and
(ii) the Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
Revolving Credit Commitments. During the Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 3.2, PROVIDED that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Termination Date.
<PAGE> 22
16
2.2 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Borrower may
borrow under the Revolving Credit Commitments during the Commitment Period on
any Business Day, PROVIDED that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans or (b) on the requested Borrowing
Date, otherwise), in each case specifying (i) the amount to be borrowed, (ii)
the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Period therefor. Each borrowing under the
Revolving Credit Commitments shall be in an amount equal to (x) in the case of
ABR Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or,
if the Aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Prior to 11:00 A.M., New York City time, on the
Borrowing Date requested by the Borrower, each Lender will make an amount equal
to its Revolving Credit Commitment Percentage of the principal amount of the
Revolving Credit Loans requested to be made on such Borrowing Date available to
the Administrative Agent for the account of the Borrower at the New York office
of the Administrative Agent specified in subsection 10.2 in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.3 FACILITY FEE; UTILIZATION FEE. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a facility fee
for the period from and including the Fee Commencement Date to the Termination
Date, computed at the Facility Fee Rate on the average daily amount of the
Revolving Credit Commitment of such Lender (regardless of usage) during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Termination Date or such
earlier date on which the Revolving Credit Commitments shall terminate as
provided herein, commencing on the first of such dates to occur after the date
hereof.
(b) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a utilization fee for each Excess Utilization Day
during the period from and including the Fee Commencement Date to the
Termination Date, computed at the Utilization Fee Rate on the average daily
amount of the Aggregate Total Outstandings of such Lender for each Excess
Utilization Day during the period for which payment is made, payable quarterly
in arrears on the last day of each March, June, September and December and on
the Termination Date or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
2.4 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS;
EXTENSION OF TERMINATION DATE. (a) The Borrower shall have the right, upon not
less than five Business Days'
<PAGE> 23
17
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments; PROVIDED that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, either (a) the Aggregate Available Revolving Credit
Commitments would not be greater than or equal to zero or (b) the Available
Revolving Credit Commitments of any Lender would not be greater than or equal to
zero. Any such reduction shall be in an amount equal to $5,000,000 or a whole
multiple thereof and shall reduce permanently the Revolving Credit Commitments
then in effect.
(b)(i) The Borrower may request, in a notice given as herein
provided and in the form of Exhibit I to the Administrative Agent and each of
the Lenders not more than 60 days, and not less than 30 days, prior to the
Termination Date that the Termination Date (the "EXISTING TERMINATION DATE") be
extended. Such notice shall specify the requested new Termination Date (the
"REQUESTED TERMINATION DATE"), which shall be not more than 364 days after the
Existing Termination Date. Each Lender, acting in its sole discretion, shall,
not later than the later of (i) the date which is 30 days prior to the Existing
Termination Date and (ii) the date which is 20 days after the receipt by the
Lenders of any such notice from the Borrower, notify the Borrower and the
Administrative Agent in writing of its election to extend or not to extend the
Termination Date with respect to its Revolving Credit Commitment. Any Lender
which shall not timely notify the Borrower and the Administrative Agent of its
election to extend the Termination Date shall be deemed to have elected not to
extend the Termination Date with respect to its Revolving Credit Commitment (any
Lender who timely notifies the Borrower and the Administrative Agent of an
election not to extend its Revolving Credit Commitment and any Lender so deemed
to have elected not to extend its Revolving Credit Commitment being referred to
as a "TERMINATING LENDER"). The election of any Lender to agree to a requested
extension shall not obligate any other Lender so to agree.
(ii) If and only if Lenders holding at least 50% of the
Aggregate Revolving Credit Commitments on the date of the notice delivered by
the Borrower pursuant to subparagraph (i) above (including Revolving Credit
Commitments of all Terminating Lenders on such date) shall have agreed during
the period referred to in such subparagraph (i) to extend the Existing
Termination Date, then (A) the Revolving Credit Commitments of the Lenders other
than Terminating Lenders (the "CONTINUING LENDERS") shall, subject to the other
provisions of this Agreement, be extended to the Requested Termination Date
specified in the notice from the Borrower, and as to such Lenders the term
"Termination Date", as used herein, shall on and after the date as of which the
requested extension is effective mean such Requested Termination Date, PROVIDED
that if such date is not a Business Day, then such Requested Termination Date
shall be the next preceding Business Day and (B) the Revolving Credit
Commitments of the Terminating Lenders shall continue until the Existing
Termination Date, and shall then terminate, and as to the Terminating Lenders,
the term "Termination Date", as used herein, shall continue to mean the Existing
Termination Date.
(c) In the event that the Termination Date shall have been
extended for the Continuing Lenders in accordance with paragraph (b) above and,
in connection with such extension, there are Terminating Lenders, the Borrower
may, at its own expense, require any
<PAGE> 24
18
Terminating Lender to transfer and assign in whole or in part, without recourse
(in accordance with subsection 10.6) all or part of its interests, rights and
obligations under this Agreement (other than any CAF Advances owing to such
Terminating Lender) to an assignee (which assignee may be another Lender, if
another Lender accepts such assignment) that shall assume such assigned
obligations and that shall agree that its Revolving Credit Commitment will
expire on the Termination Date in effect for Continuing Lenders pursuant to such
paragraph (b); PROVIDED, HOWEVER, that (i) the Borrower shall have received a
written consent of the Administrative Agent in the case of an assignee that is
not a Lender (which consent shall not unreasonably be withheld) and (ii) the
assigning Lender shall have received from the Borrower or such assignee full
payment in immediately available funds of the principal of and interest accrued
to the date of such payment on the Loans made by it hereunder to the extent that
such Loans are subject to such assignment, the facility fees and utilization
fees accrued on such Lender's Revolving Credit Commitment under subsection 2.3
to the date of such payment and all other amounts owed to it hereunder
(including any amounts that would be payable to the assigning Lender pursuant to
subsection 3.11 if such assignment were, instead, a prepayment of the Loans of
such Lender). Any such assignee's Termination Date shall be the Termination Date
in effect at the time of such assignment for the Continuing Lenders. The
Borrower shall not have any right to require a Lender to assign any part of its
interests, rights and obligations under this Agreement pursuant to this
paragraph (c) unless it has notified such Lender of its intention to require the
assignment thereof at least ten days prior to the proposed assignment date.
2.5 REPAYMENT OF REVOLVING CREDIT LOANS. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Revolving Credit Loan of
such Lender on the Termination Date (or such earlier date on which the Revolving
Credit Loans become due and payable pursuant to Section 8). The Borrower hereby
further agrees to pay interest on the unpaid principal amount of the Revolving
Credit Loans from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates, set forth in subsection
3.4.
2.6 CAF ADVANCES. Subject to the terms and conditions of this
Agreement, the Borrower may borrow CAF Advances from time to time on any
Business Day during the CAF Advance Availability Period. CAF Advance shall be
denominated in Dollars. CAF Advances may be borrowed in amounts such that the
aggregate amount of Loans outstanding at any time shall not exceed the aggregate
amount of the Revolving Credit Commitments at such time. Within the limits and
on the conditions hereinafter set forth with respect to CAF Advances, the
Borrower from time to time may borrow, repay and reborrow CAF Advances.
2.7 PROCEDURE FOR CAF ADVANCE BORROWING. (a) The Borrower
shall request CAF Advances by delivering a CAF Advance Request to the
Administrative Agent, not later than 12:00 Noon (New York City time) four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $5,000,000
<PAGE> 25
19
or an integral multiple of $1,000,000 in excess thereof and having not more than
three alternative CAF Advance Maturity Dates. The CAF Advance Maturity Date for
each CAF Advance shall be the date set forth therefor in the relevant CAF
Advance Request, which date shall be (i) not less than 7 days nor more than 360
days after the Borrowing Date therefor, in the case of a Fixed Rate CAF Advance,
(ii) not less than one month nor more than twelve months after the Borrowing
Date therefor, in the case of a LIBO CAF Advance and (iii) not later than the
Termination Date, in the case of any CAF Advance. The Administrative Agent shall
notify each Lender promptly by facsimile transmission of the contents of each
CAF Advance Request received by the Administrative Agent.
(b In the case of a LIBO Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at the Eurodollar Rate plus (or
minus) a margin determined by such Lender in its sole discretion for each such
CAF Advance. Any such irrevocable offer shall be made by delivering a CAF
Advance Offer to the Administrative Agent, before 10:30 A.M. (New York City
time) on the day that is three Business Days before the proposed Borrowing Date,
setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date and the aggregate maximum amount of CAF Advances for all
CAF Advance Maturity Dates which such Lender would be willing to make
(which amounts may, subject to subsection 2.6, exceed such Lender's
Revolving Credit Commitment); and
(ii) the margin above or below the Eurodollar Rate at which
such Lender is willing to make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 11:00 A.M. (New York
City time) on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Borrower of
the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on
the date which is three Business Days before the proposed Borrowing Date.
(c In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at a rate of interest determined by
such Lender in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the
Administrative Agent before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Lender would be willing to make (which
amounts may, subject to subsection 2.6, exceed such Lender's Revolving
Credit Commitment); and
<PAGE> 26
20
(ii) the rate of interest at which such Lender is willing to
make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 10:00 A.M. (New York
City time) on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the Borrower of the contents of its CAF Advance Offer before
9:15 A.M. (New York City time) on the proposed Borrowing Date.
(d) Before 11:30 A.M. (New York City time) three Business Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF Advance Request) and before 10:30 A.M. (New York City time) on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.7(e), accept one or more of the offers made
by any Lender or Lenders pursuant to subsection 2.7(b) or subsection
2.7(c), as the case may be, and (B) reject any remaining offers made by
Lenders pursuant to subsection 2.7(b) or subsection 2.7(c), as the case
may be.
(e) The Borrower's acceptance of CAF Advances in response to
any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall
not exceed the maximum amount for such CAF Advance Maturity Date
specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF
Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Borrower may not accept offers for CAF Advances for
any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF
Advance Request; and
(iv) if the Borrower accepts any of such offers, it must
accept offers based solely upon pricing for each relevant CAF Advance
Maturity Date and upon no other criteria whatsoever, and if two or more
Lenders submit offers for any CAF Advance Maturity Date at identical
pricing and the Borrower accepts any of such offers but does not wish
to
<PAGE> 27
21
(or, by reason of the limitations set forth in subsection 2.6, cannot)
borrow the total amount offered by such Lenders with such identical
pricing, the Borrower shall accept offers from all of such Lenders in
amounts allocated among them PRO RATA according to the amounts offered
by such Lenders (with appropriate rounding, in the sole discretion of
the Borrower, to assure that each accepted CAF Advance is an integral
multiple of $1,000,000); PROVIDED that if the number of Lenders that
submit offers for any CAF Advance Maturity Date at identical pricing is
such that, after the Borrower accepts such offers PRO RATA in
accordance with the foregoing provisions of this paragraph, the CAF
Advance to be made by any such Lender would be less than $5,000,000
principal amount, the number of such Lenders shall be reduced by the
Administrative Agent by lot until the CAF Advances to be made by each
such remaining Lender would be in a principal amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof.
(f) If the Borrower notifies the Administrative Agent that a
CAF Advance Request is cancelled pursuant to subsection 2.7(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection 2.7(d)(ii)
one or more of the offers made by any Lender or Lenders, the Administrative
Agent promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Lender. Before 12:00 Noon (New York City
time) on the Borrowing Date specified in the applicable CAF Advance Request,
each Lender whose CAF Advance Offer has been accepted shall make available to
the Administrative Agent the amount of CAF Advances to be made by such Lender,
in immediately available funds, at the funding office specified from time to
time by the Administrative Agent by notice to the Lenders. The Administrative
Agent will make such funds available to the Borrower as soon as practicable on
such date at such office of the Administrative Agent. As soon as practicable
after each Borrowing Date, the Administrative Agent shall notify each Lender of
the aggregate amount of CAF Advances advanced on such Borrowing Date and the
respective CAF Advance Maturity Dates thereof.
2.8 REPAYMENT OF CAF ADVANCES. The Borrower hereby
unconditionally promises to pay to the Administrative Agent, for the account of
each Lender which has made a CAF Advance, on the applicable CAF Advance Maturity
Date the then unpaid principal amount of such CAF Advance. The Borrower shall
have the right to prepay any principal amount of any CAF Advance only with the
consent of the Lender to which such CAF Advance is owed. The Borrower hereby
further agrees to pay interest on the unpaid principal amount of each CAF
Advance from the Borrowing Date to the applicable CAF Advance Maturity Date at
the rate of interest specified in the CAF Advance Offer accepted by the Borrower
in connection with such CAF Advance (calculated on the basis of a 360-day year
for actual days elapsed), payable on each applicable CAF Advance Interest
Payment Date.
2.9 CERTAIN RESTRICTIONS WITH RESPECT TO CAF ADVANCES. A CAF
Advance Request may request offers for CAF Advances to be made on not more than
one Borrowing Date
<PAGE> 28
22
and to mature on not more than three CAF Advance Maturity Dates. No CAF Advance
Request may be submitted earlier than five Business Days after submission of any
other CAF Advance Request.
SECTION 3. CERTAIN PROVISIONS
APPLICABLE TO THE LOANS
3.1 OPTIONAL PREPAYMENTS. The Borrower may at any time and
from time to time prepay the Revolving Credit Loans, in whole or in part,
without premium or penalty (other than any amounts payable pursuant to
subsection 3.11 if such prepayment is of Eurodollar Loans and is made on a day
other than the last day of the Interest Period with respect thereto), upon at
least four Business Days' irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein.
3.2 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurodollar
Loans and ABR Loans may be converted as provided herein, PROVIDED that (i) no
Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Majority
Lenders have determined that such a conversion is not appropriate and (ii) no
Loan may be converted into a Eurodollar Loan after the date that is one month
prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
PROVIDED that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date, and
PROVIDED, FURTHER, that if the Borrower shall fail to give such notice or if
such continuation is not permitted, such Loans shall be automatically converted
to ABR Loans on the last day of such then expiring Interest Period.
3.3 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF TRANCHES. All
borrowings, conversions and continuations of Revolving Credit Loans hereunder
and all selections of Interest
<PAGE> 29
23
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than 7 Tranches outstanding at any time.
3.4 INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) Each CAF Advance shall bear interest at the rate
determined in accordance with subsection 2.7.
(d) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any facility fee or utilization fee or (iv)
any other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), the principal of the Loans and
any such overdue interest, commitment fee or other amount shall bear interest at
a rate per annum which is (x) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of any such overdue interest, facility
fee, utilization fee or other amount, the rate described in paragraph (b) of
this subsection plus 2%, in each case from the date of such non-payment until
such overdue principal, interest, facility fee or other amount is paid in full
(as well after as before judgment).
(e) Interest pursuant to this subsection shall be payable in
arrears on each Interest Payment Date or CAF Advance Interest Payment Date, as
the case may be, PROVIDED that interest accruing pursuant to paragraph (d) of
this subsection shall be payable from time to time on demand.
3.5 COMPUTATION OF INTEREST AND FEES. (a) Whenever it is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and fees shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the
<PAGE> 30
24
Borrower, deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
3.4(a) or (c).
(c) If any Reference Lender shall for any reason no longer
have a Commitment or any Loans, such Reference Lender shall thereupon cease to
be a Reference Lender, and if, as a result, there shall only be one Reference
Lender remaining, the Administrative Agent (after consultation with the Lenders
and with the consent of the Borrower (which consent shall not be unreasonably
withheld)) shall, by notice to the Borrower and the Lenders, designate another
Lender as a Reference Lender so that there shall at all times be at least two
Reference Lenders.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
If any of the Reference Lenders shall be unable or shall otherwise fail to
supply such rates to the Administrative Agent upon its request, the rate of
interest shall, subject to the provisions of subsection 3.6, be determined on
the basis of the quotations of the remaining Reference Lenders or Reference
Lender.
3.6 INABILITY TO DETERMINE INTEREST RATE. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (w) any Eurodollar Loans, requested to be made on the first day of such
Interest Period shall be made as ABR Loans, PROVIDED, that, notwithstanding the
provisions of subsection 2.2, the Borrower may cancel the request for such
Eurodollar Loan, by written notice to the Administrative Agent one Business Day
prior to the first day of such Interest Period and the Borrower shall not be
subject to any liability pursuant to subsection 3.11 with respect to such
cancelled request, (x) any Loans that were to have been converted on the first
day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans
and (y) any outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans.
3.7 PRO RATA TREATMENT AND PAYMENTS. (a) Each payment (other
than optional prepayments) of principal or interest in respect of the Loans
shall be made PRO RATA according to the amounts then due and owing to the
respective Lenders.
<PAGE> 31
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(b) Each borrowing by the Borrower of Revolving Credit Loans
from the Lenders hereunder shall be made PRO RATA according to the Revolving
Credit Commitment Percentages of the Lenders in effect on the date of such
borrowing. Each payment by the Borrower on account of any facility fee hereunder
and any reduction of the Revolving Credit Commitments of the Lenders shall be
allocated by the Administrative Agent among the Lenders PRO RATA according to
the Revolving Credit Commitment Percentages of the Lenders. Each payment
(including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Credit Loans shall be made pro rata according to the
respective outstanding principal amounts of the Revolving Credit Loans then due
and owing to the Lenders. All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's office
specified in subsection 10.2, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder (other than payments
on the Eurodollar Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity of such
payment shall be extended to the next succeeding Business Day (and, with respect
to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension) unless the result of such extension would
be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon equal to the rate per annum applicable
to ABR Loans hereunder, on demand, from the Borrower.
3.8 ILLEGALITY. Notwithstanding any other provision herein, if
after the date hereof the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans
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26
as contemplated by this Agreement, (a) the commitment of such Lender hereunder
to make Eurodollar Loans or continue Eurodollar Loans as such and convert ABR
Loans to Eurodollar Loans shall forthwith be cancelled and (b) such Lender's
Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 3.11.
3.9 REQUIREMENTS OF LAW. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof (or, in the case of LIBO Rate CAF Advances, made
subsequent to acceptance by the Borrower of such LIBO Rate CAF Advance):
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Eurodollar
Loan or LIBO Rate CAF Advance made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 3.10 and changes in the rate
of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate, as the
case may be; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or LIBO Rate CAF Advances or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, the Borrower shall promptly pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduced amount
receivable; PROVIDED, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
(b) If any Lender shall have determined that after the date
hereof the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law)
<PAGE> 33
27
from any Governmental Authority made subsequent to the date hereof shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, the Borrower shall promptly
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction; PROVIDED, that the Borrower shall not be required to
pay to any Lender any amounts under this paragraph for any period prior to the
date on which such Lender gives notice to the Borrower that such amounts are
payable unless such Lender gives such notice within 180 days after it became
aware or should have become aware of the event giving rise to such payment
obligation.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
3.10 TAXES. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, PROVIDED, HOWEVER, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required
<PAGE> 34
28
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent
(A) two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be,
and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent
two further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested by
the Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 10.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
3.11 INDEMNITY. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans or CAF
Advances after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans or CAF Advances or the conversion of Eurodollar Loans to ABR Loans on a
day which is not the
<PAGE> 35
29
last day of an Interest Period with respect thereto. Such indemnification may
include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) or, in the case of CAF
Advances, the applicable CAF Advance Maturity Date (or proposed CAF Advance
Maturity Date), in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin or any positive
margin applicable to CAF Advances included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Bank on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market. This covenant
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
3.12 CHANGE OF LENDING OFFICE; REMOVAL OF LENDER. Each Lender
agrees that if it makes any demand for payment under subsection 3.9 or 3.10(a),
or if any adoption or change of the type described in subsection 3.8 shall occur
with respect to it, (i) it will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to make payments
under subsection 3.9 or 3.10(a), or would eliminate or reduce the effect of any
adoption or change described in subsection 3.8 or (ii) it will, upon at least
five Business Days' notice from the Borrower to such Lender and the
Administrative Agent, assign, pursuant to and in accordance with the provisions
of subsection 10.6(c), to one or more Assignees designated by the Borrower all,
but not less than all, of such Lender's rights and obligations hereunder (other
than rights in respect of such Lender's outstanding CAF Advance), without
recourse to or warranty by, or expense to, such Lender, for a purchase price
equal to the outstanding principal amount of each Revolving Credit Loan then
owing to such Lender PLUS any accrued but unpaid interest thereon and any
accrued but unpaid facility fees and utilization fees owing thereto and, in
addition, all additional costs and reimbursements, expense reimbursements and
indemnities, if any, owing in respect of such Lender's Revolving Credit
Commitment hereunder at such time (including any amount that would be payable
under subsection 3.11 if such assignment were, instead, a prepayment in full of
all amounts owing to such Lender) shall be paid to such Lender.
3.13 EVIDENCE OF DEBT. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain the Register
pursuant to subsection 10.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) in the case of Revolving Credit Loans, the amount of
each Revolving Credit Loan made hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) in the case of CAF Advances, the amount
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30
and currency of each CAF Advance made hereunder, the CAF Advance Maturity Date
thereof, the interest rate applicable thereto and each CAF Advance Interest
Payment Date applicable thereto, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iv) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(c) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 3.13(a) shall, to the extent permitted
by applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit A with appropriate
insertions as to date and principal amount (a "REVOLVING CREDIT NOTE").
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the CAF Advances of
such Lender, substantially in the form of Exhibit B with appropriate insertions
(a "CAF ADVANCE NOTE").
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 FINANCIAL CONDITION. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1998 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Ernst & Young LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at June 30, 1999 and the related unaudited consolidated statements of income and
of cash flows for the fiscal period ended on such date, certified by a
Responsible Officer, copies of which have heretofore been furnished to each
Lender, are complete and materially correct and present fairly (subject to
normal year-end audit adjustments) the consolidated financial condition of the
Borrower and its consolidated
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31
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal period then ended. All such
annual financial statements, including the related schedules and notes thereto,
were, as of the date prepared, prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as disclosed
therein). The quarterly financial statements have been prepared in accordance
with generally accepted accounting principles for interim financial information
and with the instructions to Form 10-Q and Article 10 of Regulation S-X under
the Securities Act of 1933. Accordingly, such quarterly statements do not
include all of the information and footnotes required by GAAP for complete
financial statements. In the opinion of the Borrower, all adjustments
(consisting only of normal recurring accruals) considered necessary for a fair
presentation have been included. Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, material contingent
liability or material liability for taxes, or any material long-term lease or
material unusual forward or long-term commitment, including, without limitation,
any interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto.
4.2 NO CHANGE. Since December 31, 1998 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except to the extent that the failure of the foregoing clauses (a) (only
with respect to Subsidiaries of the Borrower), (c) and (d) to be true and
correct could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
4.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
The Borrower has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and to
borrow hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, 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 borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Borrower is a
party. This Agreement and each other Loan Document to which the Borrower is, or
is to become, a party has been or will be, duly executed and delivered on behalf
of the Borrower. This Agreement and each other Loan Document to which the
Borrower is, or is to become, a party constitutes or will constitute, a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to the effects of bankruptcy,
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32
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.
4.5 NO LEGAL BAR. The execution, delivery and performance of
the Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation which
could reasonably be expected to have a Material Adverse Effect.
4.6 NO MATERIAL LITIGATION. Except as disclosed in the
Borrower's Form 10-Q dated June 30, 1999, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
4.7 NO DEFAULT. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 INTELLECTUAL PROPERTY. Except as disclosed in the
Borrower's Form 10-Q dated June 30, 1999, the Borrower and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"INTELLECTUAL PROPERTY"). Except as disclosed in the Borrower's Form 10-Q dated
June 30, 1999, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim, except for such claims
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect. Except as disclosed in the Borrower's Form 10-Q dated June 30,
1999, the use of such Intellectual Property by the Borrower and its Subsidiaries
does not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
4.9 TAXES. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Borrower,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which
<PAGE> 39
33
reserves in conformity with GAAP have been provided on the books of the Borrower
or its Subsidiaries, as the case may be); no tax Lien has been filed, and, to
the knowledge of the Borrower, no material claim is being asserted, with respect
to any such tax, fee or other charge.
4.10 FEDERAL REGULATIONS. No part of the proceeds of any Loans
will be used in any manner which would violate Regulation U of the Board as now
and from time to time hereafter in effect.
4.11 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan other
than a Multiemployer Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code, where the liability which
could be reasonably expected to result could have a Material Adverse Effect;
PROVIDED, HOWEVER, that with respect to any Multiemployer Plan, such
representation is made only to the knowledge of the Borrower. No termination of
a Single Employer Plan pursuant to Section 4041(c) or 4042 of ERISA has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period. The present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did not, as
of the last annual valuation date prior to the date on which this representation
is made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by a material amount. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan and to the knowledge of the Borrower, neither the Borrower
nor any Commonly Controlled Entity would become subject to any liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made which
liability could be reasonably expected to result could have a Material Adverse
Effect. No such Multiemployer Plan is in Reorganization or Insolvent.
4.12 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower
is not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board) which limits its ability to
incur Indebtedness.
4.13 PURPOSE OF LOANS. The proceeds of the Loans shall be used
to finance or refinance the working capital and general corporate needs of the
Borrower and its Subsidiaries, including acquisitions.
4.14 ENVIRONMENTAL MATTERS. Except to the extent that the
failure of the following statements to be true and correct could not reasonably
be expected to have a Material Adverse Effect:
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34
(a) The facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "PROPERTIES") do not
contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i) constitute
or constituted a violation of, or (ii) could reasonably be expected to
give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and there is
no contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business
operated by the Borrower or any of its Subsidiaries (the "BUSINESS")
which could reasonably be expected to materially interfere with the
continued operation of the Properties or materially impair the fair
saleable value thereof.
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties
or the Business, nor does the Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location which could reasonably be expected to give rise
to liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of
at, on or under any of the Properties in violation of, or in a manner
that could reasonably be expected to give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any Subsidiary is
or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that
could reasonably be expected to give rise to liability under
Environmental Laws.
4.15 DISCLOSURE. The statements and information contained
herein and in any of the information provided to the Administrative Agent or the
Lenders in writing (other than financial projections) in connection with this
Agreement, taken as a whole, do not contain any untrue statement of any material
fact, or omit to state a fact necessary in order to make such
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35
statements or information not misleading in any material respect, in each case
in light of the circumstances under which such statements were made or
information provided as of the date so provided.
4.16 YEAR 2000 MATTERS. Except as disclosed in the Borrower's
filings with the Securities and Exchange Commission, the Borrower expects that
the cost of ensuring that its computer systems are Year 2000 compliant should
not have a Material Adverse Effect and that its year 2000 remediation will be
substantially completed prior to any anticipated material impact on its
operations.
SECTION 5. CONDITIONS PRECEDENT
5.1 CONDITIONS TO INITIAL LOANS. The agreement of each Lender
to make the initial Loan requested to be made by it is subject to the
satisfaction on the Closing Date of the following conditions precedent:
(a) CREDIT AGREEMENT. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized
officer of the Borrower, with a counterpart for each Lender.
(b) CLOSING CERTIFICATE. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit
F, with appropriate insertions and attachments, satisfactory in form
and substance to the Administrative Agent, executed by the President or
any Vice President and the Secretary or any Assistant Secretary of the
Borrower.
(c) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of the Closing Date as if made on and as of the Closing Date.
(d) LEGAL OPINION. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal
opinion of counsel to the Borrower (which opinion may be delivered in
part by in-house counsel to the Borrower), covering the matters set
forth in Exhibit G. Such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(e) APPROVALS. All governmental and third party approvals
necessary in connection with the execution, delivery and performance of
this Agreement and the other Loan Documents shall have been obtained
and be in full force and effect.
(f) FINANCIAL STATEMENTS. The Lenders shall have received (i)
satisfactory audited consolidated financial statements of the Borrower
and its consolidated Subsidiaries for
<PAGE> 42
36
the two most recent fiscal years ended prior to the Closing Date as to
which such financial statements are available and (ii) satisfactory
unaudited interim consolidated financial statements of the Borrower and
its consolidated Subsidiaries for each quarterly period ended
subsequent to the date of the latest financial statements delivered
pursuant to clause (i) of this paragraph as to which such financial
statements are available.
5.2 CONDITIONS TO EACH LOAN. The agreement of each Lender to
make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower in or pursuant to
the Loan Documents (other than, in the case of any Loan made after the
Closing Date, the representations and warranties in subsections 4.2 and
4.6) shall be true and correct in all material respects on and as of
such date as if made on and as of such date.
(b) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
6.1 FINANCIAL STATEMENTS. Furnish to each Lender:
(a) as soon as available, but in any event within 110 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and stockholders' equity and of cash flows for
such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by Ernst & Young LLP or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited
<PAGE> 43
37
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income for such quarter and the portion of
the fiscal year through the end of such quarter and of cash flows of
the Borrower and its consolidated Subsidiaries for the portion of the
fiscal year through the end of such quarter, setting forth in each case
in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein); PROVIDED, that it is hereby acknowledged that the
quarterly financial statements delivered pursuant to paragraph (b) above may not
include all of the information and footnotes required by GAAP for complete
annual financial statements.
6.2 CERTIFICATES; OTHER INFORMATION. Furnish to the
Administrative Agent with sufficient copies for the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and 6.1(b), a certificate of a
Responsible Officer stating that such Officer has obtained no knowledge
of any Default or Event of Default that has occurred and is continuing
except as specified in such certificate, and including calculations
demonstrating compliance with subsection 7.1;
(b) within ten days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority, and promptly after the same are
issued, copies of all press releases issued by the Borrower; and
(c) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
6.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Continue
to engage in business of the same general type as conducted by it on the Signing
Date and preserve, renew and keep in full force and effect its corporate
existence and (except as could not in the aggregate be reasonably expected to
have a Material Adverse Effect) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct
of its business
<PAGE> 44
38
except as otherwise permitted pursuant to subsection 7.3; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect.
6.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep all property
necessary in its business in good working order and condition except to the
extent that failure to do so could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect; maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks as are adequate for conducting its business; and
furnish to each Lender, upon written request, full information as to the
insurance carried.
6.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants.
6.7 NOTICES. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
involving the Borrower or any of its Subsidiaries, which in either
case, could reasonably be expected to have a Material Adverse Effect;
and
(c) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan, other than the termination of any Single Employer Plan
pursuant to Section 4041(b) of ERISA where, in connection with any of
the foregoing, the amount of liability the Borrower or any Commonly
Controlled Entity could reasonably be expected to incur would be
material.
<PAGE> 45
39
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments (or any of them) remain in effect or any amount is owing to
any Lender or the Administrative Agent hereunder or under any other Loan
Document, the Borrower shall not, and (except with respect to subsection 7.1)
shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 FUNDED DEBT RATIO. Permit the ratio of (i) Consolidated
Funded Debt to (ii) the sum of (A) Consolidated Net Worth and (B) Consolidated
Funded Debt, to be at any time greater than .60 to 1.0.
7.2 LIMITATION ON LIENS. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, PROVIDED that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
7.2, PROVIDED that no such Lien is spread to cover any additional
property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;
<PAGE> 46
40
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries incurred to finance the acquisition of fixed or capital
assets, PROVIDED that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;
(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof, PROVIDED that (i) such
Liens existed at the time such corporation became a Subsidiary and were
not created in anticipation thereof, (ii) any such Lien is not spread
to cover any property or assets of such corporation after the time such
corporation becomes a Subsidiary, and (iii) the amount of Indebtedness
secured thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$100,000,000 in aggregate amount at any time outstanding.
7.3 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (PROVIDED that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more wholly owned Subsidiaries of the Borrower (PROVIDED that
the wholly owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation);
(b) the Borrower or any wholly owned Subsidiary of the
Borrower may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any other wholly owned Subsidiary, and, so long as no Default or
Event of Default shall have occurred and be continuing or would occur
as a result thereof, the Borrower or any Subsidiary of the Borrower may
sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to any non-wholly owned
Subsidiary of the Borrower for fair market value;
(c) any non-wholly owned Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any wholly owned
Subsidiary of the Borrower for fair market value or may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to any other non-wholly owned
Subsidiary of the Borrower; and
(d) the Borrower or any Subsidiary of the Borrower may be
merged or consolidated with or into another Person; PROVIDED that the
Borrower or such Subsidiary
<PAGE> 47
41
shall be the continuing or surviving corporation and no Default or
Event of Default shall have occurred and be continuing or would occur
as a result thereof (and, in the case of any such transaction involving
a Subsidiary such Subsidiary shall continue to be a Subsidiary or the
Borrower shall have received fair market value therefor as determined
by the Board of Directors of the Borrower); and PROVIDED further that
the Borrower may not be merged or consolidated with or into any
Subsidiary.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
when due in accordance with the terms thereof or hereof; or the
Borrower shall fail to pay any interest on any Loan, or any other
amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or which is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this Agreement shall prove
to have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) (i) The Borrower shall default in the observance or
performance of any covenant contained in subsection 6.8 or in Section
7; or (ii) the Borrower shall default in the observance or performance
of any other agreement contained in this Agreement (other than as
provided above in this Section), and such default described in this
clause (ii) shall continue unremedied for a period of 30 days; or
(d) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest of any Indebtedness (other
than the Loans) or in the payment of any Guarantee Obligation, beyond
the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable; PROVIDED, HOWEVER, that no Default or Event of Default
shall exist under this paragraph unless the aggregate amount of
Indebtedness and/or Guarantee Obligations in respect of which any
default or other event or condition referred to in this paragraph shall
have occurred shall be equal to at least $100,000,000; or
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42
(e) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any of its Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not or shall admit in writing its
inability to, pay its debts as they become due; or
(f) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or
any Commonly Controlled Entity shall incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or in excess of the amount recoverable by
insurance) of $100,000,000 (net of any related tax benefit) or
<PAGE> 49
43
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(h) (i) Any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (A)
shall have acquired beneficial ownership of 30% or more of any
outstanding class of Capital Stock having ordinary voting power in the
election of directors of the Borrower or (B) shall obtain the power
(whether or not exercised) to elect a majority of the Borrower's
directors or (ii) the Board of Directors of the Borrower shall not
consist of a majority of Continuing Directors; "CONTINUING DIRECTORS"
shall mean the directors of the Borrower on the Closing Date and each
other director, if such other director's nomination for election to the
Board of Directors of the Borrower is recommended by a majority of the
then Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) of this Section with respect to the
Borrower, automatically the Revolving Credit Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving
Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 9. THE ADMINISTRATIVE AGENT; THE ARRANGER
9.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
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44
9.2 DELEGATION OF DUTIES. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
9.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
9.5 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this
<PAGE> 51
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Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Majority
Lenders; PROVIDED that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
9.7 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Revolving Credit Commitment Percentages in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Revolving Credit Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of, the Revolving Credit Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the
<PAGE> 52
46
Administrative Agent under or in connection with any of the foregoing; PROVIDED
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements which are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Borrower), shall succeed to the rights,
powers and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor agent, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
9.10 THE ARRANGER, THE BOOK MANAGER AND THE SYNDICATION
AGENTS. None of the Arranger, the Book Manager or the Syndication Agents shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Arranger, the Book Manager or the Syndication Agents
shall have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on the Arranger,
the Book Manager or the Syndication Agents in deciding to enter into this
Agreement or in taking or not taking any action hereunder.
<PAGE> 53
47
SECTION 10. MISCELLANEOUS
10.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Majority Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; PROVIDED, HOWEVER, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate or amount of any
interest or fee payable hereunder or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration date of any Lender's
Revolving Credit Commitment, in each case without the consent of each Lender
affected thereby, or (ii) amend, modify or waive any provision of this
subsection or reduce the percentages specified in the definitions, of Majority
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, in
each case without the written consent of all the Lenders, or (iii) amend, modify
or waive any provision of Section 9 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Administrative Agent and all future holders
of the Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
10.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth in Schedule I in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto:
<PAGE> 54
48
The Borrower: Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760
Attention: Lawrence C. Best
Chief Financial Officer and
Senior Vice President,
Finance & Administration
Fax: 508-650-8951
with a copy to:
General Counsel's Office
Fax: 508-650-8960
The Administrative Loan & Agency Services Group
Agent: One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Janet Belden
Fax: 212-552-5658
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Dawn Lee Lum
Fax: 212-270-3279
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.7 or 3.2 shall not be
effective until received.
10.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
<PAGE> 55
49
10.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent, PROVIDED, that in connection with
any workout or restructuring, the Borrower shall pay the fees and disbursements
of (i) one counsel for the Administrative Agent and the Lenders pursuant to this
clause (b) and (ii) one counsel to the Administrative Agent and the Lenders in
the jurisdiction of each Foreign Subsidiary Borrower pursuant to this clause
(b), (c) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents including, without limitation, any
of the foregoing relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower, any
of its Subsidiaries or any of the Properties (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), PROVIDED that the Borrower
shall have no obligation hereunder to the Administrative Agent or any Lender
with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of the Administrative Agent or any such Lender. The
agreements in this subsection shall survive repayment of the Loans and all other
amounts payable hereunder.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent and their respective successors
and assigns, except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("PARTICIPANTS") participating interests in any
Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any
other interest of such Lender hereunder and under the other
<PAGE> 56
50
Loan Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Loan Document except for those specified
in clauses (i) and (ii) of the proviso to subsection 10.1(a). The Borrower
agrees that if amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement, PROVIDED that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in subsection 10.7(a) as fully
as if it were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of subsections 3.9, 3.10 and 3.11 with respect
to its participation in the Revolving Credit Commitments and the Loans
outstanding from time to time as if it was a Lender; PROVIDED that, in the case
of subsection 3.10, such Participant shall have complied with the requirements
of said subsection and PROVIDED, FURTHER, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof of comparable
credit-worthiness or, with the consent of the Borrower (unless a Default or an
Event of Default shall have occurred and be continuing) and the Administrative
Agent (which in each case shall not be unreasonably withheld), to an additional
bank, financial institution or other entity (an "ASSIGNEE") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
H, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an Affiliate thereof, by the Borrower and
the Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, PROVIDED that, in the case of any such
assignment to an additional bank, financial institution or other entity , the
sum of the aggregate principal amount of the Loans and the aggregate amount of
the unused Revolving Credit Commitment being assigned shall be not less than
$10,000,000 and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Revolving Credit Loans and the aggregate amount of the unused Revolving
Credit Commitment remaining with the assigning Lender shall be not less than
$10,000,000 (or such lesser amount as may be agreed to by the Borrower and the
Administrative Agent). Upon such execution,
<PAGE> 57
51
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with Revolving Credit
Commitments as set forth therein, and (y) the assigning Lender thereunder shall,
to the extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall cease to be a
party hereto).
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
10.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "REGISTER") for the recordation of the names and addresses of the Lenders
and the Revolving Credit Commitments of, and principal amount of the Loans owing
to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Borrower (if required) and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $3500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee,
subject to the provisions of subsection 10.14, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of such and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
<PAGE> 58
52
(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, 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
10.6 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.
10.7 ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED
LENDER") shall at any time receive any payment of all or part of its Loans then
due and owing, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8(e), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans then due and owing, or
interest thereon, such benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other Lender's
Loan, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; PROVIDED, HOWEVER, that if all or any
portion of such excess payment or benefits is thereafter
<PAGE> 59
53
recovered from such benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, PROVIDED that the failure to give
such notice shall not affect the validity of such set-off and application.
10.8 COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
10.9 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general
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54
jurisdiction of the Courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 10.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
10.13 ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.14 CONFIDENTIALITY. Each Lender agrees to keep confidential
any written or oral information (a) provided to it by or on behalf of the
Borrower or any of its Subsidiaries pursuant to or in connection with this
Agreement or (b) obtained by such Lender based on a review of the books and
records of the Borrower or any of its Subsidiaries; PROVIDED that nothing herein
shall prevent any Lender from disclosing any such information (i) to the
Administrative Agent or any other Lender, (ii) to any Transferee which receives
such information having been made aware of the confidential nature thereof and
having agreed to abide by the provisions of this subsection 10.14, (iii) to its
employees, directors, agents, attorneys, accountants and other
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55
professional advisors, and to employees and officers of its Affiliates who agree
to be bound by the terms of this subsection 10.14 and who have a need for such
information in connection with this Agreement or other transactions or proposed
transactions with the Borrower, (iv) upon the request or demand of any
Governmental Authority having jurisdiction over such Lender, (v) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (vi) which has been publicly
disclosed other than in breach of this Agreement, or (vii) in connection with
the exercise of any remedy hereunder.
10.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
BOSTON SCIENTIFIC CORPORATION
By:__________________________________
Name: Milan Kofol
Title: Vice President and Treasurer
<PAGE> 62
THE CHASE MANHATTAN BANK,
as Book Manager, Administrative Agent
and as a Lender
By:_____________________________________
Name:
Title:
ABN AMRO BANK N.V.,
as Syndication Agent and as a Lender
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Lender
By:_____________________________________
Name:
Title:
BARCLAYS BANK PLC,
as Syndication Agent and as a Lender
By:_____________________________________
Name:
Title:
<PAGE> 63
WACHOVIA BANK, N.A.
as Syndication Agent and as a Lender
By:___________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as Managing Agent and as a Lender
By:___________________________________
Name:
Title:
ALLIED IRISH BANKS, P.L.C.
as Co-Agent and as Lender
By:___________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
as Co-Agent and as a Lender
By:___________________________________
Name:
Title:
<PAGE> 64
COMMERZBANK A.G.
as Co-Agent and as a Lender
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
as Co-Agent and as a Lender
By:___________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH
as Co-Agent and as a Lender
By:___________________________________
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
as Co-Agent and as a Lender
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
<PAGE> 65
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST CO.
By:_______________________________
Name:
Title:
BANQUE NATIONALE DE PARIS
By:_______________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:_______________________________
Name:
Title:
<PAGE> 66
MELLON BANK N.A.
By:_______________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:_______________________________
Name:
Title:
U.S. BANK, N.A.
By:_______________________________
Name:
Title:
STANDARD CHARTERED BANK
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
<PAGE> 67
BANCA MONTE DEI PASCHI DI SIENA S.P.A.
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
THE BANK OF NEW YORK
By:___________________________________
Name:
Title:
BANK OF IRELAND
By:___________________________________
Name:
Title:
SVENSKA HANDELSBANKEN AB (publ)
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
<PAGE> 68
9/23/99
364-Day Facility SCHEDULE I
NAMES, ADDRESSES AND COMMITMENTS OF LENDERS
================================================================================
Lender and Address Final Allocation
- --------------------------------------- ----------------------------------------
THE CHASE MANHATTAN BANK $ 40,000,000
270 Park Avenue
New York, NY 10017
Attn: Dawn Lee Lum
Telecopy: (212) 270-3279
- --------------------------------------- ----------------------------------------
ABN AMRO BANK N.V. 35,000,000
1 Post Office Square, 39th Floor
Boston, MA 02109
Attn: James Davis
Telecopy: (617) 988-7910
- --------------------------------------- ----------------------------------------
BANK OF AMERICA, N.A. 35,000,000
100 N. Tryon Street
Charlotte, NC 28255
Attn: Courtney Morgan
Telecopy: (704) 388-6002
- --------------------------------------- ----------------------------------------
BARCLAYS BANK PLC 35,000,000
222 Broadway
New York, NY 10038
Attn: David Rawlings
Telecopy: (212) 412-7580
- --------------------------------------- ----------------------------------------
WACHOVIA BANK 75,000,000
<PAGE> 69
================================================================================
Lender and Address Final Allocation
- --------------------------------------- ----------------------------------------
191 Peachtree Street N.E.
Atlanta, GA 30303
Attn: John Rafferty
Telecopy: (404) 332-6896
- --------------------------------------- ----------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO 30,000,000
153 West 51st Street
New York, NY 10019
Attn: Jeffrey Lubatkin
Telecopy: (212) 373-1180
- --------------------------------------- ----------------------------------------
ALLIED IRISH BANKS PLC 25,000,000
Bank Centre, Ballsbridge
Dublin 4
Ireland
Attn: Emer Crowley
Telecopy: 353-1-6682508
- --------------------------------------- ----------------------------------------
THE BANK OF NOVA SCOTIA 25,000,000
101 Federal Street
Boston, MA 02208
Attn: Paula McDonald
Telecopy: (617) 624-7607
- --------------------------------------- ----------------------------------------
COMMERZBANK A.G. 25,000,000
2 World Financial Center
New York, NY 10281
Attn: Robert Donohue
Telecopy: (212) 266-7594
- --------------------------------------- ----------------------------------------
THE DAI-ICHI KANGYO BANK, LIMITED 25,000,000
One World Trade Center, Suite 4911
<PAGE> 70
================================================================================
Lender and Address Final Allocation
- --------------------------------------- ----------------------------------------
New York, NY 10048
Attn: Nelson Chang
Telecopy: (212) 912-1879
- --------------------------------------- ----------------------------------------
DEUTSCHE BANK AG 25,000,000
31 West 52nd Street, 24th Floor
New York, NY 10019
Attn: Stephanie Strohe
Telecopy: (212) 469-4520
- --------------------------------------- ----------------------------------------
RABOBANK INTERNATIONAL 25,000,000
245 Park Avenue, 37th Floor
New York, NY 10167-0062
Attn: Ellen Polansky
Telecopy: (212) 916-7837
- --------------------------------------- ----------------------------------------
BANCA COMMERCIALE ITALIANA 20,000,000
One William Street
New York, NY 10004
Attn: Lucie Garcia
Telecopy: (212) 809-2124
- --------------------------------------- ----------------------------------------
BANK OF TOKYO-MITSUBISHI TRUST CO. 20,000,000
1251 Avenue of the Americas
New York, NY 10020-1104
Attn: Pamela Donnelly
Telecopy: (212) 782-6441
- --------------------------------------- ----------------------------------------
BANQUE NATIONALE DE PARIS 20,000,000
499 Park Avenue, 9th Floor
New York, NY 10022
Attn: Richard Pace
<PAGE> 71
================================================================================
Lender and Address Final Allocation
- --------------------------------------- ----------------------------------------
Telecopy: (212) 415-9606
- --------------------------------------- ----------------------------------------
FIRST UNION NATIONAL BANK 20,000,000
1345 Chestnut Street
Philadelphia, PA 19101
Attn: Laura Rowley/Donna Emhart
Telecopy: (215) 786-8448
- --------------------------------------- ----------------------------------------
MELLON BANK, N.A. 20,000,000
One Boston Place, 6th Floor
Boston, MA 02108
Attn: Jane Westrich/Rita Long
Telecopy: (617) 722-3516/(215) 553-4899
- --------------------------------------- ----------------------------------------
MORGAN GUARANTY TRUST COMPANY 20,000,000
60 Wall Street
New York, NY 10260
Attn: Dennis Wilczek
Telecopy: (212) 648-5018
- --------------------------------------- ----------------------------------------
U.S. BANK, NATIONAL ASSOCIATION 20,000,000
First Bank Place, 601 Second Avenue South
Minneapolis, MN 55480
Attn: Greg Wilson
Telecopy: (612) 973-0825
- --------------------------------------- ----------------------------------------
STANDARD CHARTERED BANK 20,000,000
7 World Trade Center
New York, NY 10048
Attn: Andrew Ng/Leslie S. Bright
Telecopy: (212) 667-0568
- --------------------------------------- ----------------------------------------
<PAGE> 72
================================================================================
Lender and Address Final Allocation
- --------------------------------------- ----------------------------------------
BANCA MONTE DEI PASCHI DI SIENA S.P.A. 10,000,000
55 East 59th Street
New York, NY 10022
Attn: Nick Kanaris
Telecopy: (212) 891-3661
- --------------------------------------- ----------------------------------------
BANK OF NEW YORK 10,000,000
One Wall Street, 21st Floor
New York, NY 10286
Attn: William Dakin
Telecopy: (212) 635-7978
- --------------------------------------- ----------------------------------------
BANK OF IRELAND 10,000,000
Lower Baggot Street
Dublin 2
Ireland
Attn: Nicola Chapman/Derek Collins
Telecopy: 3531-604-4105
- --------------------------------------- ----------------------------------------
SVENSKA HANDELSBANKEN 10,000,000
153 East 53rd Street
New York, NY 10022
Attn: Geoffrey Walker/Heinrich Jensen
Telecopy: (212) 326-5196
- --------------------------------------- ----------------------------------------
TOTAL $600,000,000
================================================================================
<PAGE> 73
SCHEDULES
Schedule I Names, Addresses and Commitments of Lenders
Schedule 7.2 Existing Liens
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of CAF Advance Note
Exhibit C Form of CAF Advance Request
Exhibit D Form of CAF Advance Offer
Exhibit E Form of CAF Advance Confirmation
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Counsel to Borrower
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Termination Date Extension
-vi-
<PAGE> 74
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$_______________ New York, New York
___________ __, 1999
FOR VALUE RECEIVED, the undersigned, Boston Scientific
Corporation, a Delaware corporation (the "BORROWER"), hereby unconditionally
promises to pay to the order of _________________ (the "LENDER") at the office
of The Chase Manhattan Bank, located at 270 Park Avenue, New York, New York
10017, in lawful money of the United States of America and in immediately
available funds, on the Termination Date the principal amount of (a)
________________ DOLLARS ($_______________), or, if less, (b) the aggregate
unpaid principal amount of all Revolving Credit Loans made by the Lender to the
Borrower pursuant to subsection 2.1 of the Credit Agreement, as hereinafter
defined. The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in subsections 3.2 and 3.4 of such Credit
Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of each Revolving Credit Loan made pursuant to the Credit Agreement and the date
and amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Revolving
Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to
in the Amended and Restated Credit Agreement, dated as of August 19, 1999 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the Lender, the other banks and financial
institutions from time to time parties thereto, ABN AMRO Bank N.V., Bank of
America, N.A., Barclays Bank PLC and Wachovia Bank, N.A., as Syndication Agents,
Chase Securities Inc., as Arranger and Book Manager, and The Chase Manhattan
Bank, as Administrative Agent, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to optional prepayment in whole or in part as
provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
<PAGE> 75
2
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
BOSTON SCIENTIFIC CORPORATION
By: ________________________________
Name:
Title:
<PAGE> 76
<TABLE>
<CAPTION>
Schedule A to
Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
<S> <C> <C> <C> <C> <C> <C>
Amount Amount of ABR Loans Unpaid Principal
Converted to Amount of Principal Converted to Balance of ABR Notation Made
Date Amount of ABR Loans ABR Loans of ABR Loans Repaid Eurodollar Loans Loans By
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
- -------- --------------------- ---------------- --------------------- --------------------- -------------------- -----------------
</TABLE>
<PAGE> 77
<TABLE>
<CAPTION>
Schedule B to
Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Amount Interest Period Amount of Amount of
Amount of Converted to and Eurodollar Principal of Eurodollar Loans Unpaid Principal
Eurodollar Eurodollar Rate with Eurodollar Loans Converted to ABR Balance of Notation
Date Loans Loans Respect Thereto Repaid Loans Eurodollar Loans Made By
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
- -------- -------------- ---------------- ----------------- ------------------ ------------------ -------------------- ------------
</TABLE>
<PAGE> 78
EXHIBIT B
FORM OF CAF ADVANCE NOTE
$500,000,000 New York, New York
__________ __, 1999
FOR VALUE RECEIVED, the undersigned, Boston Scientific
Corporation, a Delaware corporation (the "BORROWER"), hereby unconditionally
promises to pay to the order of _________________ (the "LENDER") at the office
of The Chase Manhattan Bank, located at 270 Park Avenue, New York, New York
10017, in lawful money of the United States of America and in immediately
available funds, the principal amount of (a) FIVE HUNDRED MILLION DOLLARS
($500,000,000), or, if less, (b) the aggregate unpaid principal amount of each
CAF Advance which is made by the Lender to the Borrower pursuant to subsection
2.6 of the Credit Agreement, as hereinafter defined. The principal amount of
each CAF Advance evidenced hereby shall be payable on the CAF Advance Maturity
Date therefor set forth on the schedule attached hereto and made a part hereof
or on a continuation of such schedule which shall be attached hereto and made a
part hereof (the "GRID"). The Borrower further agrees to pay interest in like
money at such office on the unpaid principal amount of each CAF Advance
evidenced hereby, at the rate per annum set forth in respect of such CAF Advance
on the Grid, calculated on the basis of a year of 360 days and actual days
elapsed from the Borrowing Date of such CAF Advance until the due date thereof
(whether at the stated maturity, by acceleration or otherwise) and thereafter at
the rates determined in accordance with subsection 2.8(c) of the Credit
Agreement. Interest on each CAF Advance evidenced hereby shall be payable on the
date or dates set forth in respect of such CAF Advance on the Grid. CAF Advances
evidenced by this Note may be prepaid only with the consent of the Lender.
The holder of this Note is authorized to endorse on the Grid
the Borrowing Date, amount, interest rate, CAF Advance Interest Payment Dates
and CAF Advance Maturity Date in respect of each CAF Advance made pursuant to
subsection 2.6 of the Credit Agreement and each payment of principal with
respect thereto. Each such endorsement shall constitute prima facie evidence of
the accuracy of the information endorsed. The failure to make any such
endorsement shall not affect the obligations of the Borrower in respect of such
CAF Advance.
This Note is one of the CAF Advance Notes referred to in the
Amended and Restated Credit Agreement, dated as of August 19, 1999 (as amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
among the Borrower, the Lender, the other banks and financial institutions from
time to time parties thereto, ABN AMRO Bank N.V., Bank of America, N.A.,
Barclays Bank PLC and Wachovia Bank, N.A., as Syndication Agents, Chase
Securities Inc., as Arranger and Book Manager, and The Chase Manhattan Bank, as
Administrative Agent, and is subject to the provisions of the Credit Agreement.
<PAGE> 79
2
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
BOSTON SCIENTIFIC CORPORATION
By: _______________________________
Name:
Title:
<PAGE> 80
Schedule to
CAF Advance Note
SCHEDULE OF CAF ADVANCES
BOSTON SCIENTIFIC CORPORATION, Borrower
_________________, Lender
Amended and Restated Credit Agreement dated as of August 19, 1999
<TABLE>
<CAPTION>
=============== ================= ================= ==================== ================= ================ =================
<S> <C> <C> <C> <C> <C> <C>
Borrowing CAF Advance
Date of CAF Amount of CAF Interest Payment CAF Advance
Advance Advance Interest Rate Dates Maturity Date Payment Date Authorization
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
- --------------- ----------------- ----------------- -------------------- ----------------- ---------------- -----------------
=============== ================= ================= ==================== ================= ================ =================
</TABLE>
<PAGE> 81
EXHIBIT C
FORM OF CAF ADVANCE REQUEST
------------ --, ----
The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Amended and Credit Agreement, dated
as of August 19, 1999 (as amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), among the undersigned, the banks and financial
institutions from time to time parties thereto, ABN AMRO Bank N.V., Bank of
America, N.A., Barclays Bank PLC and Wachovia Bank, N.A., as Syndication Agents,
Chase Securities Inc., as Arranger and Book Manager, and The Chase Manhattan
Bank, as Administrative Agent. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
This is a [Fixed Rate] [LIBO Rate] CAF Advance Request
pursuant to subsection 2.7 of the Credit Agreement requesting offers for the
following CAF Advances:
=============================== ============ ============ ============
Loan 1 Loan 2 Loan 3
- ------------------------------- ------------ ------------ ------------
Aggregate Principal Amount(1) $__________ $__________ $_________
- ------------------------------- ------------ ------------ ------------
Borrowing Date
- ------------------------------- ------------ ------------ ------------
CAF Advance Maturity Date
- ------------------------------- ------------ ------------ ------------
CAF Advance Interest Payment
Dates
=============================== ============ ============ ============
Very truly yours,
BOSTON SCIENTIFIC CORPORATION
By: _______________________________
Name:
- -------------------
(1) List requested currency for LIBO Rate CAF Advances if other than U.S.
Dollars.
<PAGE> 82
Title:
<PAGE> 83
EXHIBIT D
FORM OF CAF ADVANCE OFFER
------------ --, ----
The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit
Agreement, dated as of August 19, 1999 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the undersigned, the
banks and financial institutions from time to time parties thereto, ABN AMRO
Bank N.V., Bank of America, N.A., Barclays Bank PLC and Wachovia Bank, N.A., as
Syndication Agents, Chase Securities Inc., as Arranger and Book Manager, and The
Chase Manhattan Bank, as Administrative Agent. Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
In accordance with subsection 2.7 of the Credit Agreement, the
undersigned Lender offers to make CAF Advances thereunder in the following
amounts with the following maturity dates:
======================================= ========================================
Borrowing Date: __________, _____ Aggregate Maximum Amount: $_________
======================================= ========================================
Maturity Date 1: __________, _____ Maximum Amount: $___________
$________ offered at _______*
$________ offered at _______*
======================================= ========================================
Maturity Date 2: __________, _____ Maximum Amount: $___________
$________ offered at _______*
$________ offered at _______*
======================================= ========================================
Maturity Date 3: __________, _____ Maximum Amount: $___________
$________ offered at _______*
======================================= ========================================
- -----------------
* Insert the interest rate offered for the specified CAF Advance where
indicated by an asterisk (*). In the case of LIBO Rate CAF Advances,
insert a margin bid. In the case of Fixed Rate CAF Advances, insert a
fixed rate bid.
<PAGE> 84
======================================= ========================================
$________ offered at _______*
======================================= ========================================
<PAGE> 85
3
Very truly yours,
[NAME OF LENDER]
By: _______________________________
Name:
Title:
<PAGE> 86
EXHIBIT E
FORM OF CAF ADVANCE CONFIRMATION
--------- --, -----
The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit
Agreement, dated as of August 19, 1999 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the undersigned, the
banks and financial institutions from time to time parties thereto, ABN AMRO
Bank N.V., Bank of America, N.A., Barclays Bank PLC and Wachovia Bank, N.A., as
Syndication Agents, Chase Securities Inc., as Arranger and Book Manager, and The
Chase Manhattan Bank, as Administrative Agent. Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
In accordance with subsection 2.7(d) of the Credit Agreement,
the undersigned accepts and confirms the offers by the CAF Advance Lender(s) to
make CAF Advances to the undersigned on _______________ __, ____ under
subsection 2.7 in the (respective) amount(s) set forth on the attached list of
CAF Advances offered.*
Very truly yours,
BOSTON SCIENTIFIC CORPORATION
By: __________________________
Name:
Title:
- --------------------------
* The Borrower must attach CAF Advance offer list prepared by the
Administrative Agent with accepted amount entered by the Borrower to the
right of each CAF Advance offer.
<PAGE> 87
EXHIBIT F
[FORM OF BORROWER CLOSING CERTIFICATE]
Pursuant to subsections 5.1(b) and 5.1(c) of the Amended and
Restated Credit Agreement, dated as of August 19, 1999 (as amended, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among Boston
Scientific Corporation, a Delaware corporation (the "BORROWER"), the banks and
other financial institutions from time to time parties thereto, ABN AMRO Bank
N.V., Bank of America, N.A., Barclays Bank PLC and Wachovia Bank, N.A., as
Syndication Agents, Chase Securities Inc., as Arranger and Book Manager, and The
Chase Manhattan Bank, as Administrative Agent, the undersigned, [President]
[Vice President] of the Borrower, hereby certifies as follows:
1 The representations and warranties of the Borrower set forth
in the Credit Agreement and each of the other Loan Documents or which
are contained in any certificate, document or financial or other
statement furnished pursuant to or in connection with the Credit
Agreement or any other Loan Document are true and correct in all
material respects on and as of the date hereof with the same effect as
if made on the date hereof, except for representations and warranties
expressly stated to relate to a specific earlier date, in which case
such representations and warranties are true and correct as of such
earlier date;
2 No Default or Event of Default has occurred and is
continuing as of the date hereof or will occur after giving effect to
the making of the Loans requested to be made on the date hereof or the
consummation of each of the transactions contemplated by the Loan
Documents; and
3 _________________ is and at all times since _____________
__, 199_, has been the duly elected and qualified [Secretary]
[Assistant Secretary] of the Borrower and the signature set forth on
the signature line for such officer below is such officer's true and
genuine signature;
and the undersigned [Secretary] [Assistant Secretary] of the Borrower hereby
certifies as follows:
4 There are no liquidation or dissolution proceedings pending
or to my knowledge threatened against the Borrower, nor has any other
event occurred affecting or threatening the corporate existence of the
Borrower;
5 The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware;
6 (a) Attached hereto as Exhibit A is a true and complete copy
of resolutions duly adopted by the Board of Directors of the Borrower
on __________ __, 19__; such resolutions have not in any way been
amended, modified, revoked or rescinded and have been in full force and
effect since their adoption to and including the date hereof and are
<PAGE> 88
now in full force and effect; such resolutions are the only corporate
proceedings of the Borrower now in force relating to or affecting the
matters referred to therein;
(b) attached hereto as Exhibit B is a true and complete copy of the
By-laws of the Borrower as in effect at all times since __________ __, 19__, to
and including the date hereof; and
(c) attached hereto as Exhibit C is a true and complete copy of the
Certificate of Incorporation of the Borrower as in effect at all times since
__________ __, 19__, to and including the date hereof; and
7 The following persons are now duly elected and qualified officers of
the Borrower, holding the offices indicated next to their respective names
below, and such officers have held such offices with the Borrower at all times
since __________ __, 19__, to and including the date hereof, and the signatures
appearing opposite their respective names below are the true and genuine
signatures of such officers, and each of such officers is duly authorized to
execute and deliver on behalf of the Borrower, the Credit Agreement and the
other Loan Documents and any certificate or other document to be delivered by
the Borrower pursuant to the Credit Agreement or any such Loan Document:
Name Office Signature
-------------------------
-------------------------
-------------------------
Unless otherwise defined herein, capitalized terms which are
defined in the Credit Agreement and used herein are so used as so defined.
IN WITNESS WHEREOF, the undersigned have hereunto set our
names and affixed the corporate seal as of the ____ day of ________, 1999.
------------------------------
Name:
Title:
------------------------------
Name:
Title:
<PAGE> 89
EXHIBIT G
[FORM OF OPINION OF COUNSEL TO BORROWER]**
[CLOSING DATE]
To the Lenders parties to the Credit Agreement referred to
below, ABN AMRO Bank N.V., Bank of America, N.A.,
Barclays Bank PLC and Wachovia Bank, N.A., as
Syndication Agents, Chase Securities Inc., as Arranger and
Book Manager, and The Chase Manhattan Bank, as
Administrative Agent.
Ladies and Gentlemen:
We have acted as counsel to Boston Scientific Corporation, a
Delaware corporation (the "BORROWER"), in connection with the execution and
delivery of the Amended and Restated Credit Agreement, dated as of August 19,
1999 (the "CREDIT AGREEMENT"), among the Borrower, the banks and other financial
institutions from time to time parties thereto (the "LENDERS"), ABN AMRO Bank
N.V., Bank of America, N.A., Barclays Bank PLC and Wachovia Bank, N.A., as
Syndication Agents, Chase Securities Inc., as Arranger and Book Manager, and The
Chase Manhattan Bank, as Administrative Agent. This opinion is delivered to you
pursuant to subsection 5.1(e) of the Credit Agreement. Terms used herein which
are defined in the Credit Agreement shall have the respective meanings set forth
in the Credit Agreement, unless otherwise defined herein.
[Counsel to insert introductory language and assumptions and
exceptions to be agreed upon]
Based upon the foregoing, we are of the opinion that:
[New York counsel opinions]
1 The Borrower is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware.
2 The Borrower has full authority (corporate and otherwise) to
execute, deliver and perform its obligations under each of the Loan
Documents. The Credit Agreement has been duly executed and delivered by
the Borrower.
- ---------------------
** This form of opinion contains only basic provisions. Certain assumptions
and exceptions will be included in the actual opinion delivered.
<PAGE> 90
2
3 The execution, delivery and performance by the Borrower of
each of the Loan Documents have been duly authorized by all necessary
corporation action. The Credit Agreement constitutes the legal, valid
and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.
4. The Borrower is not an "investment company" or a company
"controlled by an investment company" within the meaning of the
Investment Company Act of 1940 as amended.
[In-House Counsel Opinions]
1. To the best of my knowledge, there are no consents,
authorizations or approvals of, or filings with, any Governmental
Authority or any other Person required in connection with the
execution, delivery or performance by the Borrower of each of the Loan
Documents.
2. To the best of my knowledge, the execution, delivery and
performance by the Borrower or the Loan Documents (x) will not result
in a breach or violation of any Requirement of Law or Contractual
Obligation of the Borrower except such breaches or violations as would
not have a material adverse effect of the business, financial condition
or operations of the Borrower and its Subsidiaries taken as a whole or
on the ability of the Borrower to perform its obligations under the
Loan Documents and (y) will not result in or require the creation or
imposition of any Lien on any of its properties or revenue pursuant to
any such Requirement of Law or Contractual Obligations.
Very truly yours,
<PAGE> 91
EXHIBIT H
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit
Agreement, dated as of August 19, 1999 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among Boston Scientific
Corporation, the banks and financial institutions from time to time parties
thereto, ABN AMRO Bank N.V., Bank of America, N.A., Barclays Bank PLC and
Wachovia Bank, N.A., as Syndication Agents, Chase Securities Inc., as Arranger
and Book Manager, and The Chase Manhattan Bank, as Administrative Agent. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "ASSIGNOR")
and the Assignee identified on Schedule 1 hereto (the "ASSIGNEE") agree as
follows:
i. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "ASSIGNED INTEREST") in and to the Assignor's rights and obligations
under the Credit Agreement as set forth on Schedule 1 hereto (the "ASSIGNED
FACILITY").
ii. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(ii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Subsidiaries or
any other obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (iii) attaches any Notes held
by it evidencing the Assigned Facility and (i) requests that the Administrative
Agent, upon request by the Assignee, exchange the attached Notes for a new Note
or Notes payable to the Assignee and (ii) if the Assignor has retained any
interest in the Assigned Facility, requests that the Administrative Agent
exchange the attached Notes for a new Note or Notes payable to the Assignor, in
each case in amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
iii. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (ii) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsections 4.1 and 6.1 thereof and
such other documents and information as it has deemed appropriate to make
<PAGE> 92
2
its own credit analysis and decision to enter into this Assignment and
Acceptance; (iii) agrees that it will, independently and without reliance upon
the Assignor, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (v) 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 including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
3.10(b) of the Credit Agreement.
iv. The effective date of this Assignment and Acceptance shall
be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance by it and recording
by the Administrative Agent pursuant to the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
v. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
vi. From and after the Effective Date, (i) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
vii. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
<PAGE> 93
Schedule 1
to Assignment and Acceptance
Name of Assignor: _____________________________________
Name of Assignee: _____________________________________
Effective Date of Assignment: _________________________
Principal Amount Commitment Percentage
Assigned Assigned*
- -------- --------
$_______________ __._______________%
[Name of Assignee]
By: _______________________________
Name:
Title:
[Name of Assignor]
By: _______________________________
Name:
Title:
Accepted:
THE CHASE MANHATTAN BANK, as Administrative Agent
By: _________________________
Name:
Title:
Consented To:
BOSTON SCIENTIFIC CORPORATION
By: _________________________
- -------------------------
* Calculate the Commitment Percentage that is assigned to at least 15
decimal places and show as a percentage of the aggregate commitments of
all Lenders.
<PAGE> 94
Name:
Title:
<PAGE> 95
EXHIBIT I
FORM OF TERMINATION EXTENSION REQUEST
To: The Lenders Party to
the Credit Agreement
(as defined herein)
Attention:
The Chase Manhattan Bank, as
Administrative Agent under
the Credit Agreement
270 Park Avenue
New York, New York 10017
Re: EXTENSION REQUEST
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit
Agreement, dated as of August 19, 1999 (the "CREDIT AGREEMENT"), among (i)
Boston Scientific 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., Bank of America, N.A., Barclays Bank PLC and Wachovia Bank,
N.A., as Syndication Agents, (iv) Chase Securities Inc., as Arranger and as Book
Manager and (v) The Chase Manhattan Bank, as administrative agent for the
Lenders thereunder (in such capacity, the "ADMINISTRATIVE AGENT").
Pursuant to Section 2.4(b) of the Credit Agreement, the
Borrower hereby notifies the Lenders of its request that the Termination Date be
extended from _______ __, _____ (the "EXISTING TERMINATION DATE") to ______ __,
____, which is not more than 364 days after the Existing Termination Date.
Very Truly Yours,
BOSTON SCIENTIFIC CORPORATION
By: ________________________
Name:
Title:
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