FORM OF AMENDMENT #8 TO CREDIT AND SECURITY AGREEMENT
EXHIBIT
10.1
FORM
OF
AMENDMENT
#8 TO CREDIT AND SECURITY AGREEMENT
THIS
AMENDMENT #8 TO CREDIT AND SECURITY AGREEMENT (this
“Amendment”)
is
entered into by the undersigned parties as of August 9, 2006 with respect to
the
Credit and Security Agreement dated as of August 16, 2002 by and among Boston
Scientific Funding Corporation, a Delaware corporation (“Borrower”),
Boston
Scientific Corporation, a Delaware corporation, as initial Servicer, Variable
Funding Capital Company LLC, a Delaware limited liability company as assignee
of
Blue Ridge Asset Funding Corporation (“VFCC”),
Victory Receivables Corporation, a Delaware corporation (“Victory”),
The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch (formerly known as The
Bank
of Tokyo-Mitsubishi, Ltd., New York Branch), individually as a Liquidity Bank
and as Victory Agent and Wachovia Bank, National Association, individually
as a
Liquidity Bank, as VFCC Agent and as Administrative Agent, as amended from
time
to time (the “Credit
and Security Agreement”).
Unless
defined elsewhere herein, capitalized terms used in this Amendment shall have
the meanings assigned to such terms in the Credit and Security
Agreement.
RECITALS
WHEREAS,
the
Borrower, the initial Servicer, Victory, VFCC, The Bank of Tokyo-Mitsubishi
UFJ,
Ltd., New York Branch, individually as a Liquidity Bank and as Victory Agent
and
Wachovia Bank, National Association, individually, as a Liquidity Bank, as
VFCC
Agent and as Administrative Agent entered into the Credit and Security
Agreement; and
WHEREAS,
the
Borrower has requested that the Agents amend the Credit and Security
Agreement.
NOW
THEREFORE,
in
consideration of the mutual execution hereof and other good and valuable
consideration, the parties hereto agree as follows:
1. Amendments.
1.1.
The
following definitions in the Credit and Security Agreement are hereby amended
and restated in their entirety to read, respectively, as follows:
“Aggregate
Commitment”
means,
on any date of determination, the aggregate amount of the Commitments to make
Loans hereunder. As of August 9, 2006, the Aggregate Commitment is
$350,000,000.
“BSX
Credit Agreement” means
that certain Credit Agreement dated as of April 21, 2006 in effect on the date
hereof among (i) BSX, as the “Borrower” thereunder, (ii) BSC International
Holding Limited, as the “Term Loan Borrower” thereunder, (iii) the lenders party
thereto, (iv) Xxxxxxx Xxxxx Capital Corporation, as “Syndication Agent”
thereunder, (v) Bear Xxxxxxx & Co., Deutshe Bank Securities Inc. and
Wachovia Bank, National Association, as “Documentation Agents” thereunder, and
(vi) Bank of America, N.A., as “Administrative Agent” thereunder, provided
that
BTMU and Wachovia are still party thereto as lenders.
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“Scheduled
Termination Date”
means,
as to each Liquidity Bank, the earlier to occur of August 8,
2007
and
the date on which its Liquidity Commitment terminates in accordance with the
Liquidity Agreement to which it is a party, in either of the foregoing cases,
unless extended by agreement of such Liquidity Bank in accordance with Section
1.8.
1.2.
Section 1.6 of the Credit and Security Agreement is hereby amended and restated
in its entirety to read as follows:
Section
1.6. Changes
in Aggregate Commitment.
(a)
Borrower may
reduce the Aggregate Commitment in whole, or ratably between the Groups in
part,
in a minimum amount of $10,000,000 (or a larger integral multiple of
$1,000,000), upon at least five (5) Business Days’ written notice to the
Co-Agents
in the form of Exhibit VII-1 hereto (each, a “Commitment
Reduction Notice”),
which
notice shall specify the aggregate amount of any such reduction and the VFCC
Liquidity Banks’ and Victory Liquidity Banks’ respective amounts thereof,
provided,
however,
that
(a)
the
amount of the Aggregate Commitment may not be reduced below the Aggregate
Principal unless accompanied by a prepayment pursuant to Section 1.5 in the
amount necessary to ensure that the Aggregate Principal does not exceed the
Aggregate Commitment, and (b)
the
amount of the Aggregate Commitment may not be reduced below $100,000,000 unless
the Aggregate Commitment is terminated in full. All accrued and unpaid fees,
including Broken Funding Costs, if any, shall be payable on the effective date
of any termination of the Aggregate Commitment. Each Commitment
Reduction Notice shall
be
irrevocable once delivered to the Co-Agents.
(b)
At
any time prior to the Facility Termination Date while the Aggregate Commitment
is less than $350,000,000, Borrower may request an increase in the Aggregate
Commitment up to an amount not to exceed $350,000,000, ratably between the
Groups (except as provided in the last sentence of this Section 1.6(b)), in
a
minimum amount of $10,000,000 (or a larger integral multiple of $1,000,000),
upon at least fifteen (15) Business Days’ written notice to the Co-Agents in the
form of Exhibit VII-2 hereto (each, a “Commitment
Increase Request”),
which
request shall specify the aggregate amount of any such increase and the VFCC
Liquidity Banks’ and Victory Liquidity Banks’ proposed respective amounts
thereof. On or within fifteen (15) Business Days after its receipt of a
Commitment Increase Request, each of the Co-Agents shall notify Borrower in
writing in the form of Exhibit VII-3 hereto (each, a “Commitment
Increase Response”)
as to
whether the Liquidity Banks in its Group, in their sole and absolute discretion,
will agree to such Group’s requested increase in whole or in part. Failure by
either Co-Agent to issue a Commitment Increase Response within such fifteen
(15)
Business Day period shall be deemed to constitute a denial by such Co-Agent’s
Group. If either of the Co-Agents issues a Commitment Increase Response that
is
affirmative, in whole or in part, the agreed portion of the increase requested
from its Group will become effective on the
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fifteenth
(15th)
Business Day after the date of the applicable Commitment Increase Request.
If
either of the Co-Agents issues a Commitment Increase Response that is negative,
in whole or in part, or fails to issue a timely Commitment Increase Response,
Borrower may request the other Co-Agent’s Group to agree to the declined portion
of such increase by issuing another Commitment Increase Request pursuant to
this
Section 1.6(b).
(c)
If
Borrower requests more than two changes in the Aggregate Commitment pursuant
to
this Section 1.6 after August 9, 2006, no such change shall become effective
unless and until Borrower has paid each of the Co-Agents whose Liquidity Banks
provide an increase in their Commitments, a fully-earned and nonrefundable
administrative fee of $5,000 each in immediately available funds.
1.3. Section
14.5(b) of the Credit and Security Agreement is hereby amended and restated
in
its entirety to read as follows:
(b) Anything
herein to the contrary notwithstanding, each Loan Party hereby consents to
the
disclosure of any nonpublic information with respect to it (i)
to
any
Agent, the Liquidity Banks, any Conduit and any credit enhancer of any Conduit
(but in accordance with the customary practices of the disclosing parties),
by
each other, (ii)
by
any
Agent, any Lender or any credit enhancer of any Conduit to any prospective
or
actual assignee or participant of any of them (but in accordance with the
customary practices of the disclosing parties), and (iii)
by
any
Agent or any credit enhancer of any Conduit to any rating agency, commercial
paper dealer or provider of a surety, guaranty or credit or liquidity
enhancement to any Conduit, any credit enhancer of any Conduit (but in
accordance with the customary practices of the disclosing parties) or any entity
organized for the purpose of purchasing, or making loans secured by, financial
assets for which Wachovia or BTMU acts as the administrative agent and to any
officers, directors, employees, investors, potential investors, outside
accountants and attorneys and other advisors of any of the foregoing if they
agree to hold such information confidential (it being understood that in the
case of any disclosure to investors, potential investors and any advisors of
the
foregoing, such disclosure will be in accordance with the customary practices
of
the disclosing party and will not identify any Originator or any Affiliate
thereof by name), provided
that,
in each
case, each such Person is informed of the confidential nature of such
information and agrees to maintain the confidential nature of such information.
In addition, the Lenders, the Agents and any credit enhancer of any Conduit
may
disclose any such nonpublic information pursuant to any law, rule, regulation,
direction, request or order of any judicial, administrative or regulatory
authority or proceedings (whether or not having the force or effect of law);
provided
that
the
Lenders, the Agents and any such credit enhancer shall promptly notify the
applicable Loan Party of any such disclosure, except if such disclosure is
in
relation to (A) a routine audit or review by state or Federal authority or
examiner or (B) routine periodic reporting to such state or Federal authorities
or examiners in the normal course of business.
1.4. The
Credit and Security Agreement is hereby amended to add Exhibits VII-1, VII-2
and
VII-3 thereto in the form of Annexes 1, 2 and 3, respectively, to this
Amendment.
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2. Conditions
Precedent to Effectiveness.
The
effectiveness of this Amendment is subject to the conditions precedent
that:
(a) The
Agents shall have received counterparts hereof duly executed by each of the
parties hereto, and
(b) Victory
shall have received counterparts of an amendment to the Victory Liquidity
Agreement extending the term thereof through August 8, 2007, and
(c) VFCC
shall have received counterparts of an amendment to the VFCC Liquidity Agreement
extending the term thereof through August 8, 2007.
The
signatures of Victory and VFCC on counterparts of this Amendment shall
constitute confirmation that conditions (b) and (c), respectively, have been
satisfied.
3. Scope
of Amendment.
Except
as expressly amended hereby, the Credit and Security Agreement remains in full
force and effect in accordance with its terms and this Amendment shall not
by
implication or otherwise alter, modify, amend or in any way affect any of the
other terms, conditions, obligations, covenants or agreements contained in
the
Credit and Security Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect.
4. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York.
5. Counterparts.
This
Amendment may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed an original, and all such
counterparts shall together constitute but one and the same
instrument.
<Signature
pages follow>
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be executed and delivered by their
duly authorized officers as of the date hereof.
| BOSTON SCIENTIFIC FUNDING CORPORATION | ||
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| By: | ||
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Name: |
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| Title: | ||
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VARIABLE
FUNDING CAPITAL COMPANY LLC
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BY:
WACHOVIA CAPITAL MARKETS, LLC, ITS
ATTORNEY-IN-FACT
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| By: | ||
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Name: |
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| Title: | ||
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WACHOVIA
BANK,
NATIONAL ASSOCIATION,
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| individually as a Liquidity Bank, as VFCC Agent and as Administrative Agent | ||
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| By: | ||
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Name: |
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| Title: | ||
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Annex
1
EXHIBIT
VII-1
FORM
OF COMMITMENT REDUCTION NOTICE
The
Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as Victory Agent
Reference
is
made
to the Credit
and Security Agreement dated
as
of August
16, 2002 (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”)
among
Boston Scientific Funding Corporation, a Delaware corporation (the “Borrower”),
Boston
Scientific Corporation,
a
Delaware corporation as initial Servicer,
Variable Funding Capital Company LLC,
Victory
Receivables Corporation,
various
Liquidity Banks, The
Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as a Co-Agent,
and Wachovia
Bank, National Association,
as a
Co-Agent
and Administrative Agent. Capitalized terms defined in the Credit
Agreement are
used
herein with the same meanings.
1.
The
[Servicer,
on behalf of the] Borrower
hereby
irrevocably notifies the Co-Agents of the following reduction in the Aggregate
Commitment:
(b) Aggregate
Reduction requested: $___________
(c) Effective
date of reduction: __________________, 20__ (which date is not less than five
(5) Business Days after the date hereof).
(d) Amount
of
Aggregate Commitment that will be in effect after giving effect to the foregoing
Aggregate Reduction: $__________
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(i) VFCC
Group’s amount of revised Aggregate Commitment: $___________
(ii) Victory
Group’s amount of revised Aggregate Commitment: $___________
2.
The
[Servicer,
on behalf of the] Borrower
hereby
certifies to the Co-Agents as follows:
(a) An
administrative fee of $5,000 in immediately available funds is [not] payable
to
the undersigned in connection with this decrease; and
(b) After
giving effect to the foregoing reduction in the Aggregate
Commitment:
(i)
The
amount of the Aggregate Commitment will not have been reduced below the
Aggregate Principal unless accompanied by a prepayment pursuant to Section
1.5
of the Credit Agreement in the amount necessary to ensure that the Aggregate
Principal does not exceed the Aggregate Commitment;
(ii)
The
amount of the Aggregate Commitment will not be less than $100,000,000 unless
the
Aggregate Commitment is terminated in full; and
(iii)
All
accrued and unpaid fees, including Broken Funding Costs, if any, shall be
payable on the effective date of any termination of the Aggregate
Commitment.
IN
WITNESS
WHEREOF, the
[Servicer,
on behalf of the] Borrower
has
caused this Commitment Reduction Notice to
be
executed and delivered as of this ____ day of ___________,
_____.
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Annex
2
EXHIBIT
VII-2
FORM
OF COMMITMENT INCREASE REQUEST
---
[Borrower’s
Name]
COMMITMENT
INCREASE REQUEST
Date:
__________________
| To: |
Wachovia
Bank, National Association, as VFCC Agent,
and
|
The
Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as Victory Agent
Ladies
and Gentlemen:
Reference
is made to the Credit and Security Agreement dated as of August
16, 2002 (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”)
among
Boston Scientific Funding Corporation, a Delaware corporation (the “Borrower”),
Boston
Scientific Corporation,
a
Delaware corporation as initial Servicer, Variable Funding Capital Company
LLC,
Victory
Receivables Corporation,
various
Liquidity Banks, The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as
a
Co-Agent,
and Wachovia
Bank, National Association,
as a
Co-Agent
and Administrative Agent. Capitalized terms defined in the Credit Agreement
are
used herein with the same meanings.
1.
The
[Servicer,
on behalf of the] Borrower
hereby
requests the following increase in the Aggregate Commitment:
(a) Amount
of
Aggregate Commitment in effect on the date hereof: $__________
(b) Aggregate
increase requested: $___________
(i) VFCC
Group’s amount of requested increase: $___________
(ii) Victory
Group’s amount of requested increase: $___________
(c) If
approved, effective date of increase: __________________, 20__ (which date
is
not less than fifteen (15) Business Days after the date hereof).
(d) Amount
of
Aggregate Commitment that will be in effect after giving effect to the foregoing
aggregate increase: $__________
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(i) VFCC
Group’s amount of revised Aggregate Commitment: $___________
(ii) Victory
Group’s amount of revised Aggregate Commitment: $___________
2. The
[Servicer,
on behalf of the] Borrower
hereby
certifies, represents and warrants to the Agents and the Lenders that on and
as
of the effective date of the requested increase in Aggregate
Commitment:
(a) each
of
its representations and warranties contained in Section 6.1 of the Credit
Agreement will
be
true and correct, in all material respects, as if made on and as of such
effective date; provided,
however, that
so
long as each of the Liquidity Banks remains a party to the BSX Credit Agreement,
in no event will any Loan Party be required to “bring-down” its representation
in Section 6.1(b) or 6.1(g);
(b) no
event
will have occurred and is continuing, or would result from the requested
increase that constitutes an Amortization Event or Unmatured Amortization
Event;
(d) an
administrative fee of $5,000 in immediately available funds is [not] payable
to
the undersigned in connection with this increase.
IN
WITNESS WHEREOF, the
[Servicer,
on behalf of the] Borrower
has
caused this Commitment Increase Request to
be
executed and delivered as of this ____ day of ___________, _____.
| [_______________________, as Servicer, on behalf of:] | ||
|
_________________________,
as Borrower
|
||
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| By: | ||
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Name: |
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| Title: | ||
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Annex
3
EXHIBIT
VII-3
FORM
OF COMMITMENT INCREASE RESPONSE
---
[VFCC/Victory]
Group
COMMITMENT
INCREASE RESPONSE
Date:
__________________
| To: |
Boston
Scientific Funding Corporation,
and
|
Boston
Scientific Corporation, as Servicer
Ladies
and Gentlemen:
Reference
is made to the Credit and Security Agreement dated as of August
16, 2002 (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”)
among
Boston Scientific Funding Corporation, a Delaware corporation (the “Borrower”),
Boston
Scientific Corporation,
a
Delaware corporation as initial Servicer, Variable Funding Capital Company
LLC,
Victory
Receivables Corporation,
various
Liquidity Banks, The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as
a
Co-Agent,
and Wachovia
Bank, National Association,
as a
Co-Agent
and Administrative Agent. Capitalized terms defined in the Credit Agreement
are
used herein with the same meanings.
1.
On
_____________, 20__, you requested that the [VFCC/Victory] Group increase its
share of the Aggregate Commitment by $______________ (the “Group’s
Requested Increase Share”)
effective on __________________, 20__ (the “Increase
Effective Date”).
2.
Please
be advised that the [VFCC/Victory] Group is agreeable to increasing its share
of
the Aggregate Commitment by $__________ [insert a dollar amount from and
including $0 to and including an amount equal to the Group’s Requested Increase
Share] on the Increase Effective Date.
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3.
An
administrative fee of $5,000 in immediately available funds is [not] payable
to
the undersigned in connection with this increase.
| Very truly yours, | ||
| [CO-AGENT’S NAME], as [VFCC/Victory] Agent | ||
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| By: | /s/ | |
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Name: |
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| Title: | ||
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| [By: | /s/ | |
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Name: |
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| Title:] | ||
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