AMENDMENT #7 TO CREDIT AND SECURITY AGREEMENT
EXHIBIT
10.1
AMENDMENT
#7 TO CREDIT AND SECURITY AGREEMENT
THIS
AMENDMENT #7 TO CREDIT AND SECURITY AGREEMENT (this
“Amendment”)
is
entered into by the undersigned parties as of March 20, 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.
(a)
Sections
2.2(a) and (b) of the Credit and Security Agreement are hereby amended and
restated in their entirety to read as follows:
(a)
Except upon the occurrence and during the continuance of an Amortization Event
and subject to Sections 1.2(c) and 2.2(b) and, in the case of LIBOR Loans,
Section 2.2(c): Borrower (or the Servicer, on Borrower’s behalf) in its
Borrowing Request may request Interest Periods from time to time to apply to
the
LIBOR Loans; provided,
however,
that no
Interest Period of any Liquidity Bank which began prior to its Liquidity
Termination Date shall extend beyond such Liquidity Termination
Date.
(b)
Each of the Co-Agents
shall have the right to subdivide any requested LIBOR
Loan into one or more LIBOR
Loans with different Interest Periods, or, if the requested period is not
feasible, to suggest an alternative Interest Period. Notwithstanding the
foregoing, not less than $1,000,000 of principal may be allocated to any CP
Tranche Period of the Conduits or to any Interest Period of any Liquidity
Funding, and no Alternate Base Rate Loan may have a principal amount of less
than $1,000,000.
(b) All
references in the Agreement to “BTM” shall be replaced with “BTMU” and
similarly, all references in the Agreement to “The Bank of Tokyo-Mitsubishi,
Ltd., New York Branch” shall be replaced with “The Bank of Tokyo-Mitsubishi UFJ,
Ltd., New York Branch”.
(c) The
definition of “Face
Value” in
the
Agreement is hereby deleted, and each of the following definitions in the
Agreement is hereby amended and restated in its entirety to read as
follows:
“Broken
Funding Costs”
means,
for any CP Rate Loan of a Conduit which: (a)
has
its
principal reduced without compliance by Borrower with
the
notice requirements hereunder, (b)
is
not
prepaid in the amount specified in a Prepayment
Notice on
the
date specified therein or (c)
is
assigned or otherwise transferred by such Conduit to its respective
Liquidity Banks
under its respective
Liquidity Agreement or
terminated prior to the date on which it was originally scheduled to end, an
amount including the excess, if any, of (i)
the
CP
Costs that would have accrued during the remainder of the applicable commercial
paper tranche periods determined by the applicable Co-Agent to relate to such
Loan subsequent to the date of such reduction, assignment or termination (or
in
respect of clause (b)
above,
the date such prepayment was designated to occur pursuant to the applicable
Prepayment
Notice)
of the
principal of such CP Rate Loan if such reduction, assignment or termination
had
not occurred or such Prepayment
Notice had
not
been delivered, over (ii)
the
sum
of (A)
to
the
extent all or a portion of such principal is allocated to another CP Rate Loan,
the amount of CP Costs actually accrued during the remainder of such period
on
such principal for the new Loan, and (B)
to
the
extent such principal is not allocated to another CP Rate Loan, the income,
if
any, actually received during the remainder of such period by the holder of
such
Loan from investing the portion of such principal not so
allocated.
“CP
Costs”
means
for either Conduit for each day, the sum of (i)
discount
or interest accrued on its Pooled Commercial Paper on such day, plus
(ii)
any
and
all accrued commissions in respect of placement agents and Commercial Paper
dealers, and issuing and paying agent fees incurred, in respect of such Pooled
Commercial Paper for such day, plus (iii)
other
costs associated with funding small or odd-lot amounts with respect to all
receivable purchase facilities which are funded by its Pooled Commercial Paper
for such day, minus (iv)
any
accrual
2
of
income
net of expenses received on such day from investment of collections received
under all receivable purchase or financing facilities funded substantially
with
Pooled Commercial Paper, minus (v)
any
payment received on such day net of expenses in respect of Broken Funding
Costs
(or similar costs) related to the prepayment of any investment of such Conduit
pursuant to the terms of any receivable purchase or financing facilities
funded
substantially with Pooled Commercial Paper. In addition to the foregoing
costs,
if Borrower
shall
request any Advance during any period of time determined by a Conduit’s Co-Agent
in its sole discretion to result in incrementally higher CP Costs applicable
to
such Advance, the principal associated with any such Advance shall, during
such
period, be deemed to be funded by such Conduit in a special pool (which may
include capital associated with other receivable purchase or financing
facilities) for purposes of determining such additional CP Costs applicable
only
to such special pool and charged each day during such period against such
principal.
“CP
Rate”
means,
with respect
to either Conduit for any CP Tranche Period, the per
annum
interest
rate that, when applied to the outstanding principal balance of such Conduit’s
CP Rate Loans for the actual number of days elapsed in such CP Tranche Period,
would result in an amount of accrued interest equivalent to such Conduit’s CP
Costs for such CP Tranche Period.
“Pooled
Commercial Paper”
means
Commercial Paper notes of a Conduit subject to any particular pooling
arrangement by such Conduit, but excluding Commercial Paper issued by such
Conduit for a tenor and in an amount specifically requested by any Person in
connection with any agreement effected by such Conduit.
“Required
Notice Period”
means
the number of days required notice set forth below applicable to the Aggregate
Reduction indicated below:
|
Aggregate
Reduction
|
Required
Notice
Period
|
|
less
than 25% of the
Aggregate
Commitment
|
2
Business Days
|
|
greater
than or equal to
25%
but less than 50% of the
Aggregate
Commitment
|
5
Business Days
|
|
greater
than or equal to 50% of
the
Aggregate Commitment
|
10
Business Days
|
3
(d) Schedule
A to the Credit and Security Agreement is hereby amended and restated to read
as
follows, and the Commitments of the various Lenders are hereby amended
accordingly:
|
Lender
|
Commitment
|
|
VFCC
|
None
|
|
Wachovia
|
$210,000,000
|
|
Victory
|
$140,000,000
(less
amounts funded under BTMU’s Commitment)
|
|
BTMU
|
$140,000,000
(less amounts funded under Victory’s
Commitment)
|
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 to the Credit and Security Agreement,
(b) Victory
shall have received counterparts of an amendment to the Victory Liquidity
Agreement increasing the liquidity commitment thereunder to $142,800,000,
and
(c) VFCC
shall have received counterparts of an amendment to the VFCC Liquidity Agreement
increasing the liquidity commitment thereunder to $214,200,000.
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.
4
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
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Vice President, Treasurer & Investor Relations
5
By:
________________________________________
Name:
Title:
WACHOVIA
BANK,
NATIONAL ASSOCIATION,
By:
________________________________________
Name:
Title:
6
VICTORY
RECEIVABLES
CORPORATION
Name:
Title:
By:
_________________________________________
Name:
Title:
THE
BANK
OF TOKYO-MITSUBISHI
UFJ, LTD., NEW
YORK
BRANCH,
as Victory Agent
By:
_________________________________________
Name:
Title:
7