AMENDMENT
#2 TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
and RESTATEMENT OF AMENDED
FEE LETTERS
THIS AMENDMENT #2 TO AMENDED AND RESTATED CREDIT AND SECURITY
AGREEMENT AND RESTATEMENT OF AMENDED FEE LETTERS (this
“ Amendment ”) is entered into by the
undersigned parties as of August 5, 2009 with respect
to
(1) the Amended
and Restated Credit and Security Agreement dated as of November 7,
2007 by and among Boston Scientific Funding LLC, a Delaware limited
liability company (“ Borrower ”), Boston
Scientific Corporation, a Delaware corporation, as initial
Servicer, Old Line Funding, LLC, a Delaware limited liability
company (“ Old Line ”), Victory
Receivables Corporation, a Delaware corporation (“
Victory ”), The Bank of Tokyo-Mitsubishi UFJ,
Ltd., New York Branch, individually as a Liquidity Bank for Victory
and as Victory Agent and Royal Bank of Canada, a Canadian chartered
bank acting through a New York branch, in its capacity as Liquidity
Bank for Old Line, as Old Line Agent and as Administrative Agent,
as amended from time to time (the “ Credit and Security
Agreement ”); and
(2) each of the
Amended Fee Letters described in the Credit and Security Agreement,
as restated pursuant hereto (the “ Fee Letters
”).
Unless defined
elsewhere herein, capitalized terms used in this Amendment shall
have the meanings assigned to such terms in the Credit and Security
Agreement.
WHEREAS, the Borrower, the initial Servicer, Victory,
Old Line, The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch,
individually as a Liquidity Bank and as Victory Agent and Royal
Bank of Canada, individually, as a Liquidity Bank and as
Administrative Agent entered into the Credit and Security
Agreement;
WHEREAS, the Borrower has requested that the Agents
amend the Credit and Security Agreement as hereinafter set forth;
and
WHEREAS, as a condition to agreeing to the requested
amendment to the Credit and Security Agreement, the Agents have
requested the restatement of the Fee Letters hereinafter set
forth.
NOW THEREFORE, in consideration of the mutual
execution hereof and other good and valuable consideration, the
parties hereto agree as follows:
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1.
Amendments to Credit and Security Agreement .
(a) The
following new definitions are hereby inserted in Exhibit I to
the Credit and Security Agreement in the appropriate alphabetical
order:
“
Applicable Stress Factor ” means, as of any
Cut-Off Date, (a) if BSX’s long term unsecured credit
ratings from at least two of the three credit rating agencies are
better than or equal to, in the case of S&P, BBB-, in the case
of Moody’s, Baa3, or in the case of Fitch, BBB-, 2.25 or (b)
otherwise, 2.50.
“
Fitch ” means Fitch Ratings.
(b) The
following definitions in Exhibit I to the Credit and Security
Agreement are hereby restated in their entirety to read as
follows:
“
Default Horizon Ratio ” means, as of any
Cut-Off Date, the ratio (expressed as a decimal) computed by
dividing (i) the aggregate sales generated by the Originators
during the four months ending on such Cut-Off Date, by
(ii) the Net Pool Balance as of such Cut-off Date.
“
Default Ratio ” means, as of any Cut-Off Date,
the ratio (expressed as a percentage) computed by dividing
(x) the sum of, without duplication , (i) the
amount of Receivables that are unpaid and as to which any payment
remains unpaid for more than 150 days but less than
181 days from the original due date for such payment, plus
(ii) the amount of Receivables which have been (or consistent
with the applicable Credit and Collection Policy, should have been)
written off as uncollectible during the month that includes such
Cut-Off Date and as to which any payment remains unpaid for less
than 181 days from the original due date for such payment,
plus (iii) the amount of Receivables for Obligors which have
suffered an Event of Bankruptcy during the month that includes such
Cut-Off Date and as to which any payment remains unpaid for less
than 151 days from the original due date for such payment, by
(y) the aggregate sales generated by the Originators during
the month occurring six months prior to the month ending on such
Cut-Off Date.
“
Defaulted Receivable ” means a Receivable:
(i) as to which the Obligor thereof has suffered an Event of
Bankruptcy; (ii) which consistent with the applicable Credit
and Collection Policy, should be written off as uncollectible; or
(iii) as to which any payment, or part thereof, remains unpaid
for 91 days or more from the original due date for such
payment.
“
Dilution Reserve ” means, for any month, the
product (expressed as a percentage) of: (a) the sum of
(i) Applicable Stress Factor as of the immediately preceding
Cut-Off Date times the Adjusted Dilution Ratio as of the
immediately preceding Cut-Off Date, plus (ii) the Dilution
Volatility Component as of the immediately preceding Cut-Off Date,
times (b) the Dilution Horizon Ratio as of the immediately
preceding Cut-Off Date.
“Liquidity Termination Date” means, for
any Group, August 4, 2010 (unless such date is extended from
time to time in the sole discretion of the Liquidity Bank in such
Group).
“
Loss Reserve ” means, for any month, the
product (expressed as a percentage) of (a) Applicable Stress
Factor as of the immediately preceding Cut-Off Date, times
(b) the highest
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