EXHIBIT 10.1
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EXECUTION COPY
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AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT
Dated as of November 7, 2007
among
BOSTON SCIENTIFIC FUNDING LLC,
as Borrower,
BOSTON SCIENTIFIC CORPORATION,
as Servicer,
OLD LINE FUNDING, LLC
VICTORY RECEIVABLES CORPORATION,
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,
as Victory Agent,
and
ROYAL BANK OF CANADA
as Old Line Agent and as Administrative Agent
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ARTICLE I THE CREDIT....................................................2
Section 1.1 The Facility................................................2
Section 1.2 Funding Mechanics; Liquidity Fundings.......................2
Section 1.3 Interest Rates..............................................3
Section 1.4 Payment Dates; Absence of Notes to Evidence Loans...........4
Section 1.5 Prepayments.................................................4
Section 1.6 Changes in Aggregate Commitment.............................5
Section 1.7 Distribution of Certain Notices; Notification of
Interest Rates............................................6
Section 1.8 Extension of the Scheduled Termination Date.................6
Section 1.9 Eligible Originators........................................7
ARTICLE II BORROWING AND PAYMENT MECHANICS; CERTAIN COMPUTATIONS.........7
Section 2.1 Request a Borrowing.........................................7
Section 2.2 CP Tranche Periods and Interest Periods.....................8
Section 2.3 Computation of Concentration Limits and
Outstanding Balance.......................................8
Section 2.4 Maximum Interest Rate.......................................8
Section 2.5 Payments and Computations, Etc..............................8
Section 2.6 Non-Receipt of Funds by the Co Agents.......................9
ARTICLE III SETTLEMENTS...................................................9
Section 3.1 Monthly Reporting...........................................9
Section 3.2 Turnover of Collections....................................10
Section 3.3 Non-Distribution of Servicing Fee..........................11
Section 3.4 Deemed Collections.........................................11
Section 3.5 Treatment of Collections and Deemed Collections............12
ARTICLE IV FEES AND YIELD PROTECTION....................................12
Section 4.1 Fees.......................................................12
Section 4.2 Yield Protection...........................................12
Section 4.3 Funding Losses.............................................14
ARTICLE V CONDITIONS OF ADVANCES.......................................14
Section 5.1 Conditions Precedent to Initial Advance....................14
Section 5.2 Conditions Precedent to All Advances.......................14
Section 5.3 Conditions Precedent to Effectiveness......................15
ARTICLE VI REPRESENTATIONS AND WARRANTIES...............................15
Section 6.1 Representations and Warranties of the Loan Parties.........15
ARTICLE VII COVENANTS....................................................21
Section 7.1 Affirmative Covenants of the Loan Parties..................21
Section 7.2 Negative Covenants of the Loan Parties.....................27
ARTICLE VIII ADMINISTRATION AND COLLECTION................................29
Section 8.1 Designation of Servicer....................................29
Section 8.2 Duties of Servicer.........................................30
Section 8.3 Rights of Administrative Agent.............................31
Section 8.4 Responsibilities of Borrower...............................33
Section 8.5 Monthly Reports and Other Information......................33
Section 8.6 Servicing Fee..............................................33
ARTICLE IX AMORTIZATION EVENTS..........................................33
Section 9.1 Amortization Events........................................33
Section 9.2 Remedies...................................................35
ARTICLE X INDEMNIFICATION..............................................35
Section 10.1 Indemnities................................................35
Section 10.2 Indemnities by Servicer....................................38
Section 10.3 Other Costs and Expenses...................................39
Section 10.4 Taxes......................................................39
ARTICLE XI THE AGENTS...................................................39
Section 11.1 Appointment................................................39
Section 11.2 Delegation of Duties.......................................40
Section 11.3 Exculpatory Provisions.....................................40
Section 11.4 Reliance by Agents.........................................40
Section 11.5 Notice of Events of Default................................41
Section 11.6 Non-Reliance on Other Agents and Lenders...................41
Section 11.7 Indemnification of Agents..................................41
Section 11.8 Agents in their Individual Capacities......................42
Section 11.9 Conflict Waivers...........................................42
Section 11.10 UCC Filings................................................43
ARTICLE XII ASSIGNMENTS; PARTICIPATIONS..................................43
Section 12.1 Restrictions on Assignments................................43
Section 12.2 Rights of Assignees and Participants.......................44
Section 12.3 Terms and Evidence of Assignment...........................44
ARTICLE XIII SECURITY INTEREST............................................44
Section 13.1 Grant of Security Interest.................................44
Section 13.2 Termination after Final Payout Date........................44
ARTICLE XIV MISCELLANEOUS................................................45
Section 14.1 Waivers and Amendments.....................................45
Section 14.2 Notices....................................................45
Section 14.3 Ratable Payments...........................................46
Section 14.4 Protection of Administrative Agent's Security Interest.....46
Section 14.5 Confidentiality............................................47
Section 14.6 Bankruptcy Petition; Limitation on Payments................48
Section 14.7 Limitation of Liability....................................49
Section 14.8 CHOICE OF LAW..............................................49
Section 14.9 CONSENT TO JURISDICTION....................................49
Section 14.10 WAIVER OF JURY TRIAL.......................................50
Section 14.11 Integration; Binding Effect; Survival of Terms.............50
Section 14.12 Counterparts; Severability; Section References.............50
Section 14.13 Consent to Amendment and Restatement of the
Receivables Purchase Agreement...........................50
Exhibits and Schedules
Exhibit I Definitions
Exhibit II Form of Borrowing Request
Exhibit III Jurisdictions of Organization and Chief Executive Offices of
the Loan Parties; Locations of Records; Organizational
Identification Numbers
Exhibit IV Names of Collection Banks; Collection Accounts
Exhibit V Form of Compliance Certificate
Exhibit VI Form of Collection Account Agreement
Exhibit VII Form of Commitment Reduction Notice; Form of Commitment
Increase Request; Form of Commitment Increase Response
Exhibit VIII Credit and Collection Policy
Exhibit IX Form of Monthly Report
Exhibit X Eligible Originators
Exhibit XI Form of Assignment and Acceptance Agreement
Schedule A Commitments
Schedule B Closing Documents
Schedule C Effectiveness Date Documents
Schedule 14.2 Notices
AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT, dated as of
November 7, 2007 is entered into by and among:
(a) BOSTON SCIENTIFIC FUNDING LLC, a Delaware limited liability company
("Borrower"),
(b) BOSTON SCIENTIFIC CORPORATION, a Delaware corporation ("BSX"), as
initial Servicer,
(c) OLD LINE FUNDING, LLC, a Delaware limited liability company (together
with its successors, "Old Line"), ROYAL BANK OF CANADA, a Canadian chartered
bank acting through a New York branch, in its capacity as a Liquidity Bank to
Old Line (together with its successors in such capacity, "RBC" and together with
Old Line, the "Old Line Group"),
(d) VICTORY RECEIVABLES CORPORATION, a Delaware corporation (together with
its successors, "Victory" and, together with Old Line, the "Conduits"), and THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, in its capacity as a
Liquidity Bank to Victory (together with its successors, "BTMU" and, together
with Victory, the "Victory Group"),
(e) ROYAL BANK OF CANADA, a Canadian chartered bank acting through a New
York branch, in its capacity as agent for the Old Line Group (together with its
successors in such capacity, the "Old Line Agent" or a "Co-Agent"), and THE BANK
OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, in its capacity as agent for the
Victory Group (together with its successors in such capacity, the "Victory
Agent" or a "Co-Agent"), and
(f) ROYAL BANK OF CANADA, a Canadian chartered bank acting through a New
York branch, in its capacity as administrative agent for the Old Line Group, the
Victory Group and the Co-Agents (in such capacity, together with any successors
thereto in such capacity, the "Administrative Agent" and together with each of
the Co-Agents, the "Agents").
Unless defined elsewhere herein, capitalized terms used in this Agreement
and not defined herein shall have the meanings assigned to such terms in Exhibit
I. Those capitalized terms used herein but defined in other Transaction
Documents shall have the same meanings assigned to such terms in those other
Transaction Documents when used herein unless otherwise defined herein.
PRELIMINARY STATEMENTS
The parties hereto are parties (in the case of Old Line and RBC, by way of
assignment and assumption) to a Credit and Security Agreement dated as of August
16, 2002 and previously amended (the "Original Agreement").
The parties hereto desire to further amend and restate the Original
Agreement as of the date hereof.
Now, therefore, the parties hereto agree as follows:
ARTICLE I
THE CREDIT
Section 1.1 The Facility. On the terms and subject to the conditions set
forth in this Agreement, Borrower (or the Servicer on Borrower's behalf) may
from time to time during the Revolving Period request Advances by delivering a
Borrowing Request to the Co-Agents in accordance with Section 2.1. Upon receipt
of a copy of each Borrowing Request from Borrower or Servicer, each of the
Co-Agents shall determine whether its Conduit will make a Loan in an amount
equal to its Group's Percentage of the requested Advance specified in such
Borrowing Request, and
(a) in the event that Old Line elects not to make any such Loan to
Borrower, the Old Line Agent shall promptly notify Borrower and, unless Borrower
cancels its Borrowing Request, each of the Old Line Liquidity Banks severally
agrees to make its Ratable Share of such Loan to Borrower, on the terms and
subject to the conditions hereof, provided that at no time may the aggregate
principal amount of Old Line's and the Old Line Liquidity Banks' Loans at any
one time outstanding exceed the lesser of (i) the aggregate amount of the Old
Line Liquidity Banks' Commitments, and (ii) the Old Line Group's Percentage of
the Borrowing Base (such lesser amount, the "Old Line Allocation Limit"); and
(b) in the event that Victory fails to make any such Loan to Borrower
pursuant to Victory's Commitment, the Victory Agent shall promptly notify
Borrower and, unless Borrower cancels its Borrowing Request, each of the Victory
Liquidity Banks severally agrees to make its Ratable Share of such Loan to
Borrower, on the terms and subject to the conditions hereof, provided that at no
time may the aggregate principal amount of Victory's and the Victory Liquidity
Banks' Loans at any one time outstanding exceed the lesser of (i) the aggregate
amount of the Victory Group's Commitments, and (ii) the Victory Group's
Percentage of the Borrowing Base (such lesser amount, the "Victory Allocation
Limit").
Each Loan shall be in the minimum amount of $1,000,000 or a larger integral
multiple of $500,000. In no event may the aggregate principal amount of the
Advances hereunder exceed the lesser of (x) the Aggregate Commitment, or (y) the
Borrowing Base. Each Committed Lender's Commitment under this Agreement shall
terminate on the Facility Termination Date. Each of the Loans, and all other
Obligations of Borrower, shall be secured by the Collateral as provided in
Article XIII.
Section 1.2 Funding Mechanics; Liquidity Fundings.
(a) Each Advance hereunder shall consist of Loans made by each Group
and (except for any Advance which does not increase the aggregate principal
amount of the Loans outstanding) shall be made in such proportions by each Group
such that, after giving effect thereto, the aggregate outstanding principal
balance of the Loans outstanding from each Group shall be in proportion to such
Group's Percentage of the aggregate outstanding principal balance
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of all Advances then outstanding hereunder. Any Advance which does not increase
the aggregate principal amount outstanding may be funded solely by one or more
of the members of a single Group.
(b) Each Lender funding any portion of an Advance shall wire transfer
the principal amount of its Loan to its applicable Co-Agent in immediately
available funds not later than 1:00 p.m. (New York City time) on the applicable
Borrowing Date and, subject to its receipt of such Loan proceeds, such Co-Agent
shall wire transfer such funds to the account specified by Borrower in its
Borrowing Request not later than 2:00 p.m. (New York City time) on such
Borrowing Date.
(c) While it is the intent of each of the Conduits to fund its
respective Loans through the issuance of Commercial Paper, the parties
acknowledge that if any Conduit is unable, or determines in its reasonable
business judgment that it is undesirable for any reason to issue Commercial
Paper to fund or maintain all or any portion of its Loans at a CP Rate, or is
unable to repay such Commercial Paper upon the maturity thereof, such Conduit or
its related Liquidity Bank will fund such Loan, or a portion thereof, as a
Liquidity Funding. The Liquidity Fundings may be Alternate Base Rate Loans or
LIBOR Loans, or a combination thereof; provided, however, that each Liquidity
Funding shall be an Alternate Base Rate Loan at least for the first two (2)
Business Days after it is funded. In addition, the parties acknowledge that
Commercial Paper is issued at a discount and at varying discount rates;
accordingly, it may not be possible for all CP Rate Loans to be made in amounts
precisely equal to the amounts specified in a Borrowing Request. Regardless of
whether a Liquidity Funding constitutes an assignment of a Loan or the sale of
one or more participations therein or any other obtaining of funding for all or
any portion of any Loan, each Liquidity Bank participating in a Liquidity
Funding shall have the same rights as its Conduit has hereunder with the same
force and effect as if such Liquidity Bank had directly made a Loan to Borrower
in the amount of its Liquidity Funding.
(d) Nothing herein shall be deemed to commit any Lender to make CP
Rate Loans.
Section 1.3 Interest Rates.
(a) Each CP Rate Loan shall bear interest on the outstanding principal
amount thereof from and including the first day of each CP Tranche Period to
(and including) the last day of such CP Tranche Period at the applicable CP
Rate. On the 5th Business Day immediately preceding each Settlement Date, each
Co-Agent shall calculate the amount of CP Costs for its Conduit for the
applicable CP Tranche Period and each shall notify Borrower of such amount which
shall be payable on such Settlement Date.
(b) Each LIBOR Loan shall bear interest on the outstanding principal
amount thereof from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest Period
at a rate per annum equal to the applicable LIBOR for such LIBOR Loan and such
Interest Period; provided that (i) the applicable Co-Agent has received the
notice as and when required under Section 2.2(b) and (ii) the applicable
Co-Agent determines that (I) the funding of a LIBOR Loan would not violate any
applicable law and (II) deposits of a type and maturity appropriate to
match-fund such LIBOR Loan are available.
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(c) Each Alternate Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from and including the date
such Loan is made to but excluding the date it is paid at a rate per annum equal
to the Alternate Base Rate for such Alternate Base Rate Loan for such day.
Changes in the rate of interest on Alternate Base Rate Loans will take effect
simultaneously with each change in the Alternate Base Rate.
(d) Notwithstanding anything to the contrary contained in Sections
1.3(a), (b) or (c), upon the occurrence of an Amortization Event, and during the
continuance thereof, all Obligations shall bear interest, payable upon demand,
at the Default Rate.
(e) Interest shall be payable for the day a Loan is made but not for
the day of any payment on the amount paid if payment is received by each
Co-Agent prior to 1:00 p.m. (New York City time) at the place of payment. If any
payment of principal of or interest on a Loan shall become due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
Section 1.4 Payment Dates; Absence of Notes to Evidence Loans.
(a) Borrower promises to pay the principal of each CP Rate Loan on the
last day of its CP Tranche Period.
(b) Borrower promises to pay the principal of each LIBOR Loan on the
last day of its Interest Period.
(c) Borrower promises to pay the principal of each Alternate Base Rate
Loan on or before the earlier to occur of (i) the Facility Termination Date, and
(ii) the refinancing of such Loan with a CP Rate Loan or a LIBOR Loan.
(d) Borrower promises to pay all accrued and unpaid interest on each
Loan for each Settlement Period or CP Tranche Period on its applicable
Settlement Date(s).
(e) Each Lender shall maintain (or cause its respective Co-Agent to
maintain) in accordance with its usual practice an account or accounts
evidencing the indebtedness of Borrower to such Lender resulting from each Loan
made by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. Upon
request of Borrower, such Lender's Co-Agent or the Administrative Agent, such
Lender will confirm the outstanding principal balances of its Loans and the
amount of any accrued and unpaid interest thereon. The entries maintained in the
accounts maintained pursuant to this Section shall absent manifest error be
correct evidence of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of any Lender (or Co-Agent) to
maintain such accounts or any error therein shall not in any manner affect the
obligation of Borrower to repay the Obligations in accordance with their terms.
Section 1.5 Prepayments. Subject, in the case of CP Rate Loans and LIBOR
Loans, to the funding indemnification provisions of Section 4.3:
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(a) Borrower may from time to time voluntarily prepay, without penalty
or premium, all outstanding Advances, or, in a minimum aggregate amount of
$2,000,000 (or a larger integral multiple of $1,000,000), any portion of the
outstanding Advances by giving prior irrevocable written notice to the Co-Agents
(each, a "Prepayment Notice"): (i) given within the Required Notice Period and
(ii) providing for, in the case of LIBOR Loans, such prepayment to occur on the
last day of the Interest Period for any Liquidity Bank's LIBOR Loans so prepaid;
provided that each such prepayment of principal complying with the provisions of
this section or otherwise is accompanied by a payment of all accrued and unpaid
interest on the amount prepaid, together with all amounts (if any) due under
Section 4.3 and any Broken Funding Costs (if any) due because of such
prepayment, and is made between the Conduits in such proportions so that after
giving effect thereto, the aggregate outstanding principal balance of the Loans
outstanding from each Conduit shall be in proportion to such Conduit's
percentage of the aggregate outstanding principal balance of all Advances then
outstanding hereunder.
(b) If, on any Business Day, the aggregate outstanding principal
amount of the Loans from the Old Line Group exceeds the Old Line Allocation
Limit, or the aggregate principal amount of the Loans outstanding from the Old
Line Group exceeds the Old Line Liquidity Banks' Liquidity Commitments pursuant
to the Old Line Liquidity Agreement divided by 102%, Borrower shall prepay such
Loans by wire transfer to the Old Line Agent received not later than 1:00 p.m.
(New York City time) on the first Business Day thereafter of an amount
sufficient to eliminate such excess, together with accrued and unpaid interest
on the amount prepaid.
(c) If, on any Business Day, the aggregate outstanding principal
amount of the Loans from the Victory Group exceeds the Victory Allocation Limit,
or the aggregate principal amount of the Loans outstanding from the Victory
Group exceeds the Victory Liquidity Banks' aggregate Liquidity Commitments
pursuant to the Victory Liquidity Agreement divided by 102%, Borrower shall
prepay such Loans by wire transfer to the Victory Agent received not later than
1:00 p.m. (New York City time) on the first Business Day thereafter of an amount
sufficient to eliminate such excess, together with accrued and unpaid interest
on the amount prepaid.
(d) Upon receipt of any wire transfer pursuant to Section 1.5(a), (b)
or (c), the applicable Co-Agent shall wire transfer to each of its Constituent
Lenders their respective shares thereof not later than 1:30 p.m. (New York City
time) on the date when received. Any prepayment required pursuant to Section 1.5
(b) or (c) shall be applied in such order as each Co-Agent may determine.
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-l hereto (each, a "Commitment
Reduction Notice"), which notice shall specify the aggregate amount of any such
reduction and the 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
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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, Borrower may
request an increase in the Aggregate Commitment 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 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 any 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 any 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 fifteenth (15th) Business Day after the date of the applicable Commitment
Increase Request. If any 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 each 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).
Section 1.7 Distribution of Certain Notices; Notification of Interest
Rates. Promptly after receipt thereof, each Co-Agent will notify its Constituent
Lenders of the contents of each Monthly Report, Borrowing Request, Commitment
Reduction Notice, Prepayment Notice, or notice of default received by it from
Borrower or the Servicer hereunder. In addition, each of the Co-Agents shall
promptly notify its Constituent Lenders and Borrower of each determination of
and change in Interest Rates and of any decision by the Liquidity Banks in its
Group not to extend their Liquidity Termination Date.
Section 1.8 Extension of the Scheduled Termination Date.
(a) Provided that no Unmatured Amortization Event or Amortization
Event exists and is continuing, the Borrower may request one or more Liquidity
Bank(s) to extend its Scheduled Termination Date by submitting a request for an
extension (each, an "Extension Request") to the Co-Agents no more than 90 days
prior to each such Liquidity Bank's respective Scheduled Termination Date then
in effect. Each Extension Request must specify the new Scheduled Termination
Date requested by the Borrower for such Liquidity Bank(s) and the date (which
must be at least 30 days after the Extension Request is delivered to the
Co-Agents) as of which the Co-Agents and the applicable Liquidity Bank(s) must
respond to the Extension Request (the "Response Date"). The new Scheduled
Termination Date for each applicable Liquidity Bank shall be no more than 364
days after the applicable Response Date, including such Response Date as one of
the days in the calculation of the days elapsed.
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(b) Promptly upon receipt of an Extension Request, each Co-Agent shall
notify its Constituent Lenders of the contents thereof and shall request each
applicable Liquidity Bank to approve such Extension Request. Each applicable
Liquidity Bank approving such Extension Request shall deliver its written
approval to its Co-Agent no later than the Response Date, whereupon such
Co-Agent shall notify the other Co-Agent(s) and the Borrower within one Business
Day thereafter as to which (if any) of such Co-Agent's applicable Constituent
Liquidity Banks have approved such Extension Request.
(c) If any applicable Liquidity Bank does not approve the Extension
Request (each such non-approving Liquidity Bank, a "Non-Approving Lender") its
Co-Agent shall promptly notify its Conduit, the other Co-Agent(s) and the
Borrower of such fact, and the Borrower shall have the right to (i) require such
Non-Approving Lender to assign all, but not less than all, of its Commitment and
outstanding Obligations by entering into written assignments with one or more
Eligible Assignees not later than the 5th Business Day prior to such
Non-Approving Lender's existing Scheduled Termination Date, or (ii) to pay in
full of all Obligations (if any) owing to such Non-Approving Lender and
terminate its Commitment no later than such Non-Approving Lender's existing
Scheduled Termination Date. Each assignment pursuant to clause (i) above to an
Eligible Assignee (which may include a Constituent of another Co-Agent) shall
become effective on the existing Scheduled Termination Date and, subject to
receipt of payment in full on such existing Scheduled Termination Date for all
Obligations, if any, owing to such Non-Approving Lender, such Non-Approving
Lender shall make each such requested assignment; provided that any expenses or
other amounts which would be owing to such Non-Approving Lender pursuant to any
indemnification provision hereof shall be payable by the Borrower as if the
Borrower had prepaid the Loans of the assigning Lenders rather than such
assigning Lenders having assigned their respective interests hereunder. If no
assignment of a Non-Approving Lender's Commitment to an Eligible Assignee is
executed by the 5th Business Day prior to its existing Scheduled Termination
Date, the Scheduled Termination Date for all Lenders shall remain unchanged. If
all applicable Liquidity Banks approve an Extension Request by the Response
Date, the Scheduled Termination Date specified in such Extension Request shall
become effective on such Response Date as to the approving Liquidity Banks, and
each of the Co-Agents shall promptly notify the Borrower and the other
Co-Agent(s) of the applicable Liquidity Banks' new Scheduled Termination Date.
Section 1.9 Eligible Originators. A list of Eligible Originators as of the
Initial Closing Date is attached hereto as Exhibit X. After the Initial Closing
Date, BSX may request that additional Eligible Originators be designated by
submitting a written request to the Co-Agents. If the Co-Agents, in their sole
discretion, approve any such request in writing within 30 days after receiving
such request, Exhibit X will be automatically deemed amended to add the name of
such newly approved Eligible Originator. If the Co-Agents have not approved such
request in writing within thirty (30) days (or if any Co-Agent notifies BSX and
the other Co-Agent that such request is not approved), such request shall be
considered to have been denied.
ARTICLE II
BORROWING AND PAYMENT MECHANICS; CERTAIN COMPUTATIONS
Section 2.1 Request a Borrowing. Borrower (or the Servicer, on Borrower's
behalf) shall give the Co-Agents irrevocable notice in the form of Exhibit II
hereto (each, a "Borrowing
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Request") not later than 1:00 p.m. (New York City time) at least two (2)
Business Days before the Borrowing Date of each Advance. On each Borrowing Date,
each applicable Lender shall make available its Loan or Loans in accordance with
Section 1.2(b). Unless each of the Co-Agents in its sole discretion shall
otherwise agree, not more than one (1) Borrowing Date shall occur in any
calendar week.
Section 2.2 CP Tranche Periods and Interest Periods.
(a) Unless a Co-Agent shall have received written notice by 1:00 p.m.
(New York City time) on the second (2nd) Business Day prior to the last day of a
CP Tranche Period that Borrower intends to reduce the aggregate principal amount
of the CP Rate Loans outstanding, such Co-Agent and its related Conduit shall be
entitled to assume that Borrower desires to refinance the principal and interest
of each maturing CP Rate Loan on the last day of its CP Tranche Period with new
CP Rate Loans; provided, however, that Borrower shall remain liable to pay in
cash any portion of the principal or interest on the maturing CP Rate Loan when
due to the extent that the applicable Conduit cannot issue Commercial Paper or
avail itself of a Liquidity Funding, in either case, in the precise amount
necessary to refinance the maturing CP Rate Loan and the accrued and unpaid
interest thereon.
(b) Unless a Co-Agent shall have received written notice by 1:00 p.m.
(New York City time) on the second (2nd) Business Day prior to the last day of
an Interest Period with respect to a LIBOR Loan that Borrower intends to reduce
the aggregate principal amount of LIBOR Loans outstanding, such Co-Agent and its
related Liquidity Banks shall be entitled to assume that Borrower desires to
refinance its maturing LIBOR Loans on the last day of such Interest Period with
Alternate Base Rate Loans.
Section 2.3 Computation of Concentration Limits and Outstanding Balance.
The Obligor Concentration Limits and the aggregate Outstanding Balance of
Receivables of each Obligor and its Affiliates who are Obligors (if any) shall
be calculated as if each such Obligor and its Affiliates who are Obligors were
one Obligor.
Section 2.4 Maximum Interest Rate. No provision of this Agreement shall
require the payment or permit the collection of interest in excess of the
maximum permitted by applicable law (the "Maximum Rate"). If at any time the
interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law
(collectively the "Charges"), shall exceed the Maximum Rate which may be
contracted for, charged, taken, received or reserved by the Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
Section 2.5 Payments and Computations, Etc.
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(a) Payments. All amounts to be paid or deposited by Borrower or the
Servicer (on Borrower's behalf) to any of the Agents or Lenders (other than
amounts payable under Section 4.2) shall be paid by wire transfer of immediately
available funds received not later than 1:00 p.m. (New York City time) on the
day when due in lawful money of the United States of America to the applicable
Co-Agent at its address specified below its signature hereto, and, to the extent
such payment is for the account of any Lender, the applicable Co-Agent shall
promptly disburse such funds to the appropriate Lender(s) in its Group.
(b) Late Payments. Upon demand, Borrower or the Servicer (on
Borrower's behalf), as applicable, shall pay to the applicable Co-Agent for the
account of each Person in its Group to whom payment of any Obligation is due,
interest on all amounts not paid or deposited by 1:00 p.m. (New York City time)
on the date when due (without taking into account any applicable grace period)
at the Default Rate.
(c) Method of Computation. All computations of interest at the
Alternate Base Rate or the Default Rate shall be made on the basis of a year of
365 (or, when appropriate, 366) days for the actual number of days (including
the first day but excluding the last day) elapsed. All other computations of
interest, and all computations of Servicing Fee, any per annum fees payable
under Section 4.1 and any other per annum fees payable by Borrower to the
Lenders, the Servicer or any of the Agents under the Transaction Documents shall
be made on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) elapsed.
(d) Avoidance or Rescission of Payments. No payment of any Obligation
shall be considered to have been paid if at any time such payment is rescinded
or must be returned for any reason.
Section 2.6 Non-Receipt of Funds by the Co Agents. Unless a Lender notifies
its Co-Agent prior to the date and time on which it is scheduled to fund a Loan
that it does not intend to fund, such Co-Agent may assume that such funding will
be made and may, but shall not be obligated to, make the amount of such Loan
available to the intended recipient in reliance upon such assumption. If such
Lender has not in fact funded its Loan proceeds to the applicable Co-Agent, the
recipient of such payment shall, on demand by such Co-Agent, repay to such
Co-Agent the amount so made available together with interest thereon in respect
of each day during the period commencing on the date such amount was so made
available by such Co-Agent until the date such Co-Agent recovers such amount at
a rate per annum equal to the Federal Funds Effective Rate for such day.
ARTICLE III
SETTLEMENTS
Section 3.1 Monthly Reporting. Not later than the Monthly Reporting Date in
each calendar month hereafter, the Servicer shall deliver to each of the
Co-Agents, a Monthly Report accompanied by an electronic file in a form
reasonably satisfactory to each of the Co-Agents. At or before 1:00 p.m. (New
York City time) on the fifth Business Day immediately preceding each Settlement
Date, each of the Co-Agents shall notify Borrower and the Servicer of (i) the
aggregate principal balance of all Loans that are then outstanding from its
Constituents, and (ii)
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the aggregate amount of all principal, interest and fees that will be due and
payable by Borrower to such Co-Agent for the account of such Co-Agent or its
Constituents on such Settlement Date.
Section 3.2 Turnover of Collections. Without limiting any Agent's or
Lender's recourse to Borrower for payment of any and all Obligations:
(a) If any Monthly Report reveals that a mandatory prepayment is
required under Section 1.5(b) or (c), not later than the 1:00 p.m. (New York
City time) on the next succeeding Settlement Date, the Servicer shall turn over
to each applicable Co-Agent, for distribution to its Constituents, a portion of
the Collections received as of the Monthly Reporting Date on which such Monthly
Report was due and not previously so distributed equal to the amount of such
required mandatory prepayment;
(b) If, on any Settlement Date, any Loans are to be voluntarily
prepaid in accordance with Section 1.5(a), or if the aggregate principal amount
of the Advances outstanding is to be reduced, the Servicer shall turn over to
each of the Co-Agents, for distribution to its Constituents, a portion of the
Collections equal to the Groups' respective Percentages of the aggregate amount
of such voluntary prepayment or reduction and any other amounts required to be
paid in connection with such voluntary prepayment or reduction; and
(c) In addition to, but without duplication of, the foregoing, on (i)
each Settlement Date and (ii) each other date on which any principal of or
interest on any of the Loans becomes due (whether by acceleration or otherwise)
and, in the case of principal, has not been reborrowed pursuant to Section 1.1,
the Servicer shall turn over to each of the Co-Agents, for distribution to their
respective Constituents, the Groups' respective Percentages of a portion of the
Collections equal to the aggregate amount of all other Obligations that are due
and owing on such date. If the Collections and proceeds of new Loans are
insufficient to make all payments required under clauses (a), (b) and (c) and to
pay the Servicing Fees and, if applicable, all expenses due and owing to any
replacement Servicer under Section 8.1 (all of the foregoing, collectively, the
"Required Amounts") and Borrower has made any Demand Advances, Borrower shall
make demand upon BSX for payment of the Demand Advances in an amount equal to
the lesser of the Required Amounts or the aggregate outstanding principal
balance of such Demand Advances (plus any accrued and unpaid interest thereon)
and, upon receipt of any such amounts, Borrower shall pay them to each of the
Co-Agents, ratably in accordance with their respective Groups' Percentages, for
distribution in accordance with this Section 3.2.
(d) If the aggregate amount of Collections and payments on Demand
Advances received by the Co-Agents on any Settlement Date are insufficient to
pay all Required Amounts, the aggregate amount received shall be applied to the
items specified in the subclauses below, in the order of priority of such
subclauses:
(i) to any accrued and unpaid interest on the Loans that is then
due and owing, including any previously accrued interest which was not paid on
its applicable due date;
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(ii) if the Servicer is not Borrower or an Affiliate thereof, to
any accrued and unpaid Servicing Fee that is then due and owing to such
Servicer, together with any invoiced expenses of the Servicer due and owing
pursuant to Section 10.3;
(iii) to the fees due on such Settlement Date pursuant to the
Amended Fee Letters, plus any fees previously accrued thereunder not paid on a
prior Settlement Date;
(iv) to the payment of the principal of any Loans that are then
due and owing;
(v) to other Obligations that are then due and owing; and
(vi) if the Servicer is Borrower, BSX or one of their respective
Affiliates, to the accrued and unpaid Servicing Fee that is then due and owing
to such Servicer.
(e) In addition to, but without duplication of, the foregoing, on (i)
each Settlement Date and (ii) each other date on which any principal of or
interest on any of the Loans becomes due (whether by acceleration or otherwise),
the Servicer shall turn over to each of the Co-Agents, for distribution to the
Lenders, a portion of the Collections equal to the aggregate amount of all
Obligations that are due and owing to their respective Group on such date.
Section 3.3 Non-Distribution of Servicing Fee. Each of the Agents and the
other Secured Parties hereby agrees that prior to the occurrence of an Unmatured
Amortization Event or an Amortization Event, the Servicer may retain a portion
of the Collections equal to the Servicing Fee so long as the Collections
received by the Servicer are sufficient to pay in full all amounts due pursuant
to Section 3.2(d).
Section 3.4 Deemed Collections. If on any Settlement Date:
(a) the aggregate Outstanding Balance of the Receivables as reflected
in the most recent Monthly Report (net of any positive adjustments) has been
reduced or cancelled for any of the following reasons:
(i) as a result of any rejected, defective or returned services or
merchandise, any cash discount or any other adjustment by the Borrower, the
applicable Originator or any Affiliate thereof (regardless of whether the
same is treated by such Originator or Affiliate as a write-off), or as a
result of any surcharge or other governmental or regulatory action, or
(ii) as a result of any setoff or breach of the underlying agreement
in respect of any claim by the Obligor thereof against the Borrower, the
applicable Originator or any Affiliate thereof (whether such claim arises
out of the same or a related or an unrelated transaction), or
(iii) on account of the obligation of the Borrower, the applicable
Originator or any Affiliate thereof to pay to the related Obligor any
rebate or refund, or
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(iv) the Outstanding Balance of any Receivable is less than the amount
included in calculating the Net Pool Balance for purposes of any Monthly
Report (for any reason other than such Receivable becoming a Defaulted
Receivable), or
(b) any of the representations or warranties of the Borrower set forth
in Section 6.1(n), (o) or (r) was not true when made with respect to any
Receivable, or any of the representations or warranties of the Borrower set
forth in Section 6.1(m) is no longer true with respect to any Receivable,
then, in such event, the Borrower shall be deemed to have received during the
preceding Calculation Period a Collection in an amount equal to (A) the amount
of such reduction, cancellation or overstatement, in the case of the preceding
clauses (a)(i), (a)(ii), (a)(iii) and (a)(iv) or the difference between the
actual Outstanding Balance and the amount included in respect of such Receivable
in calculating the Net Pool Balance, as applicable, and (B) in the full amount
of the Outstanding Balance of such Receivable in the case of the preceding
clause (b).
Section 3.5 Treatment of Collections and Deemed Collections. Borrower shall
forthwith deliver to Servicer all Deemed Collections, and Servicer shall hold or
distribute such Deemed Collections in the same manner as all other Collections
are required to be held or distributed hereunder.
ARTICLE IV
FEES AND YIELD PROTECTION
Section 4.1 Fees. BSX or Borrower, as applicable, shall pay to each of the
Agents and the Lenders certain fees from time to time in amounts and payable on
such dates as are set forth in the Amended Fee Letters.
Section 4.2 Yield Protection.
(a) If any Regulatory Change occurring after the date hereof:
(i) shall subject an Affected Party to any Tax (other than Excluded
Taxes), duty or other charge with respect to its obligations hereunder or
under any Funding Agreement or Enhancement Agreement, as applicable, its
Commitment or its Liquidity Commitment, or shall change the basis of
taxation of payments to the Affected Party of any Obligations, owed to or
funded or maintained in whole or in part by it or any other amounts due
under this Agreement in respect of its Obligations or, as applicable, its
Commitment or its Liquidity Commitment; or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of any Affected Party,
deposits or obligations with or for the account of any Affected Party or
with or for the account of any affiliate (or entity deemed by the Federal
Reserve Board to be an affiliate) of any Affected Party, or credit extended
by any Affected Party pursuant to this Agreement, a Funding Agreement or an
Enhancement Agreement, as applicable; or
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(iii) shall affect the amount of capital required or expected to be
maintained by any Affected Party; or
(iv) shall impose any other condition affecting any obligation owned,
funded or maintained in whole or in part by any Affected Party, or its
rights or obligations, if any, to make Loans or Liquidity Fundings or to
provide (or participate in) the funding or maintenance thereof; or
(v) shall change the rate for, or the manner in which the Federal
Deposit Insurance Corporation (or a successor thereto) assesses deposit
insurance premiums or similar charges;
and the result of any of the foregoing is or would be:
(x) to increase the cost to or to impose a cost on (I) an Affected
Party funding or making or maintaining (or providing or agreeing to provide
funding for) any Loan, any Liquidity Funding or loans or other extensions
of credit under any Funding Agreement or Enhancement Agreement or any
commitment of such Affected Party with respect to any of the foregoing, or
(II) any of the Agents for continuing its or Borrower's relationship with
any Affected Party, in each case, in an amount deemed to be material by
such Affected Party,
(y) to reduce the amount of any sum received or receivable by an
Affected Party under this Agreement or under any Liquidity Agreement or
Enhancement Agreement, or
(z) to reduce the rate of return on such Affected Party's capital as a
consequence of its Obligations, its Commitment, its Liquidity Commitment,
its obligations under any Enhancement Agreement or the Loans made by it or
otherwise arising in connection herewith (or therewith) to a level below
that which such Affected Party could have achieved but for the occurrence
of such circumstances,
then, within fifteen days after demand by such Affected Party (which demand
shall be accompanied by a certificate setting forth the basis of such demand),
Borrower shall pay directly to such Affected Party such additional amount or
amounts as will compensate such Affected Party for such actual additional cost,
increased cost or reduction.
(b) Each Affected Party will promptly notify Borrower, the
Administrative Agent and the applicable Co-Agent of any event of which it has
knowledge which will entitle such Affected Party to compensation pursuant to
this Section 4.2; provided, however, no failure to give or delay in giving such
notification shall adversely affect the rights of any Affected Party to such
compensation.
(c) In determining any amount provided for or referred to in this
Section 4.2, an Affected Party may use any reasonable averaging and attribution
methods that it (in its sole discretion) shall deem applicable. Any Affected
Party when making a claim under this Section 4.2 shall submit to Borrower the
above-referenced certificate as to such actual increased cost or
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actual reduced return (including calculation thereof in reasonable detail),
which shall, in the absence of manifest error, be conclusive and binding upon
Borrower.
Section 4.3 Funding Losses. In the event that any Affected Party shall
incur any loss or expense, including without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Affected Party, then, upon written notice from the applicable
Co-Agent to the Administrative Agent, Borrower and the Servicer, Borrower shall
pay to the Servicer, and the Servicer shall pay to the applicable Co-Agent for
the account of such Affected Parties upon demand, the amount of such loss or
expense (which shall include without limitation all Broken Funding Costs). Such
written notice (which shall include the methodology for calculating, and the
calculation of, the amount of such actual loss or expense, in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding upon Borrower
and the Servicer.
ARTICLE V
CONDITIONS OF ADVANCES
Section 5.1 Conditions Precedent to Initial Advance. The initial Advance
under this Agreement was subject to the condition precedent that the
Administrative Agent shall have received on or before the date of such Advance
those documents listed on Schedule B to this Agreement.
Section 5.2 Conditions Precedent to All Advances. Each Advance (including
the initial Advance) and each rollover or continuation of any Advance shall be
subject to the further conditions precedent that (a) the Servicer shall have
delivered to the Agents on or prior to the date thereof, in form and substance
satisfactory to the Agents, all Monthly Reports and other information as and
when due under Section 8.5; (b) the Facility Termination Date shall not have
occurred; (c) the Agents shall have received such other approvals, opinions or
documents as any Agent may reasonably request; and (d) on the date thereof, the
following statements shall be true (and acceptance of the proceeds of such
Advance shall be deemed a representation and warranty by Borrower that such
statements are then true):
(i) the representations and warranties set forth in Section 6.1
and Article II of the Receivables Sale Agreement are true and correct in all
material respects on and as of the date of such Advance (or such Settlement
Date, as the case may be, except for representations and warranties stated to
refer to a specific earlier date, in which case such representations and
warranties are true and correct as of such earlier date) as though made on and
as of such date and shall be deemed to have been made on such date; provided,
however, that the preceding materiality standard shall not apply to those
representations and warranties which themselves contain materiality standards;
and provided, further, 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 "date-down" its representation in Section 6.1(b) or 6.1(g);
(ii) no event has occurred and is continuing, or would result
from such Advance (or the continuation thereof), that will constitute an
Amortization Event, and no event has occurred and is continuing, or would result
from such Advance (or the continuation thereof), that would constitute an
Unmatured Amortization Event;
14
(iii) after giving effect to such Advance (or the continuation
thereof), the Aggregate Principal will not exceed the Aggregate Commitment; and
(iv) after giving affect to the Loans made by each Group included
in such Advance (or the continuation thereof), the aggregate principal of such
Loans will not exceed the Allocation Limit of such Group.
Section 5.3 Conditions Precedent to Effectiveness. This Amended and
Restated Credit and Security Agreement shall become effective at such time as
the Agents shall have received the documents listed on Schedule C to this
Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of the Loan Parties. Each Loan
Party hereby represents and warrants to the Agents and the Lenders, as to itself
in any capacity, as of the date hereof, as of the date of each Advance and as of
each Settlement Date as follows; 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 "date-down" its representation in Section 6.1(b)
or 6.1(g):
(a) Financial Condition. The consolidated balance sheet of BSX and its
consolidated Subsidiaries as at December 31, 2006 and December 31, 2005 and the
related consolidated statements of operations and of cash flows for the fiscal
years ended on such dates, reported on by Ernst & Young LLP, copies of which
have heretofore been furnished to Borrower and Lenders, are complete and correct
and present fairly the consolidated financial condition of BSX as at such dates,
and the consolidated results of its operations and its consolidated cash flows
for the fiscal years then ended. The unaudited consolidated balance sheet of BSX
and its consolidated Subsidiaries as at September 30, 2007 or, if later and
prior to the date of this Agreement, the date of BSX's most recent publicly
available Form 10-Q and the related unaudited consolidated statements of
operations and of cash flows for the fiscal period ended on such date, certified
by an Authorized 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 BSX
and its consolidated Subsidiaries as at such date, and the consolidated results
of its operations and its 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 an Authorized 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 BXS, all adjustments (consisting only of
normal recurring accruals) considered necessary for a fair presentation have
been included. Neither BSX nor any of its consolidated Subsidiaries had, at the
date of the most recent balance sheet referred to above, any material
15
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.
(b) No Change. Since the date of the most recent financial statements
filed with BSX's Form 10-Q or Form 10-K (or the equivalent thereof) under the
Securities Exchange Act of 1934, as amended, in the case of BSX, and since the
date of formation in the case of Borrower, there has been no development or
event which has had or could reasonably be expected to have a Material Adverse
Effect.
(c) Ownership of Borrower and Originators. BSX owns, directly or
indirectly, all the issued and outstanding Equity Interests of (i) the Borrower
and (ii) each of the other Originators (if any), and all of such Equity
Interests are fully paid and non-assessable.
(d) Corporate Existence; Compliance with Law. Each Loan Party and its
Subsidiaries, if any, (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate or other 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 or other entity 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), (c) and (d) to be true and correct could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(e) Corporate Power; Authorization; Enforceable Obligations. Each Loan
Party has the corporate or other power and authority, and the legal right, to
make, deliver and perform its obligations under each Transaction Document to
which it is a party and to consummate the transactions herein and therein
contemplated and has taken all necessary corporate or limited liability company
action to authorize the consummation of the transactions herein and therein
contemplated and to authorize the execution, delivery and performance of the
Transaction Documents to which it is a party. Except for filings with respect to
the disclosure of the Transaction Documents pursuant to the Securities Exchange
Act of 1934, as amended (all of which filings shall be made at or prior to the
time required under applicable law), 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 such Loan Party or any of its
Subsidiaries in connection with the transactions hereunder or with the
execution, delivery, performance, validity or enforceability of the Transaction
Documents to which such Loan Party is a party. This Agreement and each other
Transaction Document to which such Loan Party is, or is to become, a party has
been or will be, as applicable, duly executed and delivered on behalf of such
Loan Party. This Agreement and each other Transaction Document to which such
Loan Party is, or is to become, a party constitutes or will constitute, as
applicable, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
16
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(f) No Legal Bar. The execution, delivery and performance of the
Transaction Documents and transactions contemplated hereunder will not violate
any Requirement of Law or Contractual Obligation of such Loan Party 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 (except for any Lien permitted by, or created pursuant to, any of the
Transaction Documents) 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.
(g) No Material Litigation. Except as disclosed in BSX's most recent
publicly available Form 10-K or, if later, the date of BSX's most recent
publicly available Form 10-Q, no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of such Loan Party, threatened by or against such Loan Party or any of its
Subsidiaries or against any of its or its respective properties or revenues (a)
with respect to any of the Transaction Documents or any of the transactions
contemplated hereby, or (b) which could reasonably be expected to have a
Material Adverse Effect.
(h) No Default. Neither Servicer nor any of its Subsidiaries (other
than Borrower) is in default under or with respect to any of its Contractual
Obligations in excess of $100,000,000. Borrower is not 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 Unmatured
Amortization Event or Amortization Event has occurred and is continuing.
(i) Taxes. Each of such Loan Party and its Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of such Loan Party,
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 (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of such Loan Party or its Subsidiaries, as the case may
be), except to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
(j) Use of Proceeds. The use of all funds obtained by the Borrower
under this Agreement or any other Transaction Document to which it is a party
will not (i) violate Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect, (ii) violate
Section 7.2(e) of this Agreement or (iii) be to acquire any security which is
subject to Section 12, 13 or 14 of the Exchange Act.
(k) Investment Company Act; Other Regulations. Such Loan Party 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. Such Loan
Party 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.
17
(l) Accuracy of Information.
(i) Monthly Reports. Each Monthly Report delivered pursuant to this
Agreement was true and accurate in every material respect on the date
specified in such report and did not contain any material misstatement of
fact or omit to state a material fact or any fact necessary to make the
statements contained therein not misleading.
(ii) Pre-Closing Collateral Information. All information regarding the
Collateral or any Loan Party furnished by any Loan Party or any of its
Affiliates to any of the Agents or Lenders prior to the date of this
Agreement was true and accurate in every material respect on the date such
information was so furnished except as otherwise disclosed to the Agents
and the Lenders prior to the date hereof and, when taken as a whole
together with such subsequent disclosures, did not contain any material
misstatement of fact or omit to state a material fact or any fact necessary
to make the statements contained therein not misleading.
(iii) Ongoing Collateral Information. All other information regarding
the Collateral not covered by clauses (i) and (ii) above which is hereafter
furnished by any Loan Party to any of the Agents or Lenders will be true
and accurate in every material respect on the date such information is so
furnished and, when taken as a whole, will not contain any material
misstatement of fact or omit to state a material fact or any fact necessary
to make the statements contained therein not misleading as of the date when
so furnished.
(iv) Other Information. All other information regarding any Loan
Party, its business, operations, financial condition or prospects furnished
by any Loan Party to any of the Agents or Lenders in connection with the
Transaction Documents after the date of this Agreement that is not covered
by clauses (i), (ii) or (iii) above, will be true and accurate in every
material respect on the date such information is so furnished and, when
taken as a whole together with any subsequent updates to such information,
will not contain any material misstatement of fact or omit to state a
material fact or any fact necessary to make the statements contained
therein not misleading as of the date when furnished or updated.
(m) Valid and Perfected Security Interest. The Borrower has a
perfected ownership interest in each Receivable, and each Receivable is owned by
the Borrower free and clear of any Lien except as created hereby or by the other
Transaction Documents. Without limiting the foregoing, Borrower has delivered to
the Administrative Agent in form suitable for filing all financing statements or
other similar instruments or documents necessary under the UCC of all
appropriate jurisdictions to perfect the Administrative Agent's security
interest in the Receivables and Related Security. This Agreement creates a valid
security interest in each such Receivable and its Related Security in favor of
the Administrative Agent, and, upon filing of the financing statements described
in the preceding sentence, together with UCC termination statements delivered as
a condition precedent to the initial Advance hereunder, such security interest
will be a first priority perfected security interest.
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(n) Nature of Receivables. Each Receivable constitutes an "Account"
and is not a "Health-care-insurance receivable," in each case, as defined in the
UCC in effect in the State of New York.
(o) Title to Receivables and Quality of Title. No financing statement
or other instrument similar in effect creating any Lien on any portion of the
Collateral is on file in any recording office except such as may be filed (i) in
favor of an Originator in accordance with the Contracts, (ii) in favor of the
Borrower and its assigns in connection with the Receivables Sale Agreement,
(iii) in favor of the Administrative Agent in accordance with this Agreement,
(iv) in connection with any Lien arising solely as the result of any action
taken by the Administrative Agent or one of the Secured Parties, or (v) which
shall be terminated or amended pursuant to the UCC termination statements or
amendments delivered as a condition precedent to this Agreement.
(p) Offices. The chief executive office of such Loan Party is located
at the address set forth for it on Exhibit III hereto, and the offices where
such Loan Party keep all books, records and documents evidencing the Receivables
(other than books, records and documents that are stored off-site with respect
to Receivables which are no longer outstanding or which have been written-off),
the related material Contracts and all purchase orders and other agreements
related to such Receivables are located at the addresses specified in Exhibit
III hereto or its Joinder Agreement (or at such other locations, notified to the
Administrative Agent in accordance with Section 7.2(a), in jurisdictions where
all action required by Section 6.1(m) has been taken and completed). Such Loan
Party's jurisdiction of organization and organizational identification number
are also correctly set forth on Exhibit III hereto. As of the date hereof, each
Loan Party is a "registered organization" (within the meaning of Section 9-102
of the UCC as in effect in its jurisdiction of organization). Since the date of
this Agreement, no Loan Party has changed its jurisdiction of organization.
(q) Collection Accounts. The conditions and requirements set forth in
Sections 7.1(h) and 7.1(m) have at all times been satisfied and duly performed.
The names, addresses and jurisdictions of organization of all Collection Banks,
together with the account numbers of the Collection Accounts of Borrower at each
Collection Bank and the post office box number of each Lockbox, are listed on
Exhibit IV. Borrower has not granted any Person, other than the Administrative
Agent as contemplated by this Agreement, dominion and control of any Lockbox or
Collection Account, or the right to take dominion and control of any such
Lockbox or Collection Account at a future time or upon the occurrence of a
future event.
(r) Eligible Receivables. Each Receivable included in the Net Pool
Balance as an Eligible Receivable on the date of any Monthly Report or Borrowing
Base calculation was an Eligible Receivable on such date.
(s) Names. Except as set forth in Exhibit III hereto, since its
formation, Borrower has not used any legal names, trade names or assumed names
other than the name in which it has executed this Agreement.
(t) Credit and Collection Policy. Such Loan Party has complied in all
material respects with the applicable Credit and Collection Policy, and no
change has been made
19
to such Credit and Collection Policy since the date of this Agreement which
would be reasonably likely to materially and adversely affect the collectibility
of the Receivables or decrease the credit quality of any newly created
Receivables except for such changes as to which each of the Agents has received
not less than 30 days' prior written notice of the proposed change and has given
its prior written consent thereto (which consent shall not be unreasonably
withheld or delayed).
(u) Payments to Originators. With respect to each Receivable sold or
contributed to the Borrower under the Receivables Sale Agreement, the Borrower
has given reasonably equivalent value to the applicable Originator in
consideration for such Receivable and the Related Security with respect thereto
and no such transfer is or may be voidable under any section of the Bankruptcy
Reform Act of 1978 (11 U.S.C. S.S.101 et seq.), as amended.
(v) Reliance on Separate Legal Identity. Such Loan Party is aware that
the Lenders, the Liquidity Banks and the Agents are entering into the
Transaction Documents in reliance upon the Borrower's identity as a legal entity
separate from such Loan Party and any of its other Affiliates.
(w) Compliance with Law. (i) Such Loan Party has complied in all
respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it is subject, except where the failure
to so comply could not reasonably be expected to have a Material Adverse Effect;
and (ii) each Receivable, together with any Contract related thereto, does not
contravene any laws, rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to truth in lending, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy), except where such contravention could not
reasonably be expected to have a Material Adverse Effect.
(x) Aggregate Commitment. Immediately after giving effect to each
Advance and each settlement on any Settlement Date hereunder, the Aggregate
Principal is less than or equal to the Aggregate Commitment.
(y) Accounting. The manner in which such Loan Party accounts for the
transactions contemplated by this Agreement and the Receivables Sale Agreement
is consistent with and will not result in the transfer from the Originators to
the Borrower under the Receivables Sale Agreement to be or be characterized as
anything other than a true sale under law and for accounting purposes.
(z) Receivables Sale Agreement. Each Originator's representations and
warranties contained in the Receivables Sale Agreement is true and correct in
all material respects and is made to the Lenders, the Agents and the other
parties hereto as if set forth herein in full together with the related
definitions.
(aa) Servicing Programs. No license or approval is required for any
Agent's use of any software or other similar program used by any Originator or
Servicer in the servicing of the Receivables, other than those which have been
obtained and are in full force and effect.
20
ARTICLE VII
COVENANTS
Section 7.1 Affirmative Covenants of the Loan Parties. Until the Final
Payout date, each Loan Party hereby covenants, as to itself in any capacity, as
set forth below:
(a) Financial Reporting. Such Loan Party will maintain, for itself and
each of its domestic Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish or cause to be furnished to
the Co-Agents:
(i) BSX Financial Statements. Each of the financial statements of
BSX and its consolidated Subsidiaries described in Section 4.2(a) of the
Receivables Sale Agreement on the dates specified therein.
(ii) Borrower's Financial Statements. Together with each of the
financial statements described in Section 7.1(a)(i), analogous unaudited
financial statements for the Borrower on a stand-alone basis prepared in
accordance with GAAP.
(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance certificate in substantially the
form of Exhibit V signed by such Loan Party's Authorized Officer and dated the
date of such annual financial statement or such quarterly financial statement,
as the case may be.
(iv) SEC and Stockholder Reports. Within ten days after the same
are sent, copies of all financial statements and reports which BSX sends to its
stockholders, and within five days after the same are filed, copies of all
financial statements and reports which BSX 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 BSX.
(v) ERISA. Within ten days of the occurrence of a Reportable
Event or an "accumulated funding deficiency" (within the meaning of Section 412
of the Code or Section 302 of ERISA) a detailed description of such Reportable
Event or "accumulated funding deficiency".
(vi) Copies of Notices. Promptly upon its receipt of any notice,
request for consent, financial statements, certification, report or other
material communication under or in connection with any Transaction Document from
any Person other than one of the Agents or Lenders, copies of the same.
(vii) Change in Credit and Collection Policy. At least thirty
(30) days prior to the effectiveness of any material change in or material
amendment to the Credit and Collection Policy, a copy of the Credit and
Collection Policy then in effect and a notice (A) indicating such change or
amendment, and (B) if such proposed change or amendment would be reasonably
likely to adversely affect the collectibility of the Receivables or decrease the
credit quality of any newly created Receivables, requesting the Administrative
Agent's consent thereto.
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(viii) Other Information. Promptly, from time to time, (A) such
other information, documents, records or data relating to the Receivables or (B)
such other information, documents, records or data relating to the condition or
operations, financial or otherwise, of such Loan Party each as the
Administrative Agent may from time to time reasonably request in order to
protect the interests of the Agents and the Lenders under or as contemplated by
this Agreement.
(b) Notices. Such Loan Party will notify the Administrative Agent in
writing by a statement of an Authorized Officer of any of the following as soon
as possible upon learning of the occurrence thereof with respect to such Loan
Party, describing the same and, if applicable, the steps being taken with
respect thereto:
(i) Amortization Events or Unmatured Amortization Events. As soon
as possible, but in any event with one Business Day after such Loan Party
receives knowledge thereof, the occurrence of each Amortization Event and each
Unmatured Amortization Event.
(ii) Proceedings. As soon as possible and in any event within ten
Business Days after any Authorized Officer of any Loan Party obtains knowledge
thereof, notice of (A) any litigation, investigation or proceeding which may
exist at any time which would reasonably be expected to have a Material Adverse
Effect and (B) the entry of any adverse judgment in or other development in
previously disclosed litigation which would reasonably be expected to have a
Material Adverse Effect.
(iii) Material Adverse Effect. The occurrence of any other event
or condition that has had, or could reasonably be expected to have, a Material
Adverse Effect.
(iv) Sale Termination Date. The occurrence of the "Sale
Termination Date" under and as defined in the Receivables Sale Agreement.
(v) Defaults Under Other Agreements. (A) The occurrence of a
material default or an amortization event under any other financing arrangement
pursuant to which BSX is a debtor or an obligor or (B) the occurrence of a
default or an amortization event under any other financing arrangement pursuant
to which the Borrower is a debtor or an obligor and such financing arrangement
is in excess of $10,750.
(c) Conduct of Business and Maintenance of Existence. Such Loan Party
will (i) (x) in the case of BSX, continue to engage in business of the same
general type as conducted by it on the date hereof and (y) in the case of the
Borrower, continue to engage in business of the same general type as conducted
by it on the date of the Original Agreement, (ii) preserve, renew and keep in
full force and effect its corporate or other existence and (except as could not
in the aggregate be reasonably expected to have a Material Adverse Effect),
(iii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business (except
as could not be reasonably expected to have a Material Adverse Effect) and (iv)
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.
22
(d) Audits. Such Loan Party will, subject to compliance with
Contractual Obligations and Requirements of Law: (i) at any time and from time
to time upon not less than ten (10) Business Days' notice (unless an or
Amortization Event has occurred and is continuing, in which case, not more than
one (1) Business Day's notice shall be required) during regular business hours,
permit the Agents or any of their agents or representatives: (A) to examine and
make copies of and abstracts from all Records, Contracts and Invoices in the
possession or under the control of such Loan Party, and (B) to visit the offices
and properties of such Loan Party for the purpose of examining such Records,
Contracts and Invoices and to discuss matters relating to Receivables or such
Loan Party's performance hereunder with any of the officers or employees of such
Loan Party having knowledge of such matters; and (ii) without limiting the
provisions of clause (i) above, from time to time, at the expense of such Loan
Party, permit certified public accountants or auditors acceptable to the Agents
to conduct a review of the Contracts, Invoices and Records (each, a "Review");
provided, however, that, so long as no Amortization Event has occurred and is
continuing, the Loan Parties shall only be responsible for the costs and
expenses of one (1) such Review under this Section in any one calendar year
unless (1) the first such Review in such calendar year resulted in negative
findings (in which case the Loan Parties shall be responsible for the costs and
expenses of two (2) such Reviews in such calendar year), or (2) the Borrower
delivers an Extension Request and the applicable Response Date is more than 3
calendar months after the first Review in such calendar year. Notwithstanding
the foregoing, if the Borrower requests the approval of a new Eligible
Originator who is a Material Proposed Addition, the Loan Parties shall be
responsible for the costs and expenses of one additional Review per proposed
Material Proposed Addition in the calendar year in which such Material Proposed
Addition is expected to occur if such additional Review is requested by any of
the Agents.
(e) Keeping of Records and Books of Account. Such Loan Party will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate essential Records evidencing the
Receivables in the event of the destruction of the originals thereof and backing
up such Records on at least a daily basis on a separate computer from which
electronic file copies can be readily produced), and keep and maintain, all
Contracts, Records and other information necessary or reasonably advisable for
the collection of all such Receivables (including, without limitation, Records
adequate to permit the identification as of any Business Day when required of
Outstanding Balances by Obligor and related debit and credit details of the
Receivables).
(f) Location of Records. Such Loan Party will keep its Records and
material Contracts (and, to the extent that any of the foregoing constitute
instruments, chattel paper or negotiable documents, all originals thereof), at
its addresses referred to in Exhibit III hereto, or, upon 30 days' prior written
notice to the Agents, at such other locations in jurisdictions where all action
required by Section 6.1(m) shall have been taken and completed.
(g) Credit and Collection Policies. Such Loan Party will comply in all
material respects with the Credit and Collection Policy in regard to the
Receivables and will require each applicable Originator to timely and fully
perform and comply with all provisions, covenants and other promises required to
be observed by it under the related Contracts and Invoices.
23
(h) Collections. Such Loan Party will instruct all Obligors thereon to
pay all Collections either directly by mail addressed to a Lockbox listed on
Exhibit IV hereto which is subject to a Collection Account Agreement, or by wire
transfer or other electronic funds transfer directly to a Collection Account
listed on Exhibit IV hereto which is subject to a Collection Account Agreement.
(i) Further Assurances. Such Loan Party shall take all necessary
action to establish and maintain in favor of the Buyer, a valid and perfected
ownership interest in the Receivables and Related Security.
(j) Performance and Enforcement of the Receivables Sale Agreement.
Borrower will, and will require each Originator to, perform each of their
respective obligations and undertakings under and pursuant to the Receivables
Sale Agreement, will purchase Receivables thereunder in strict compliance with
the terms thereof and will vigorously enforce the rights and remedies accorded
to Borrower under the Receivables Sale Agreement. Borrower will take all actions
necessary to perfect and enforce its rights and interests (and the rights and
interests of the Administrative Agent and the Lenders as assignees of Borrower)
under the Receivables Sale Agreement as the Administrative Agent may from time
to time reasonably request, including, without limitation, making claims to
which it may be entitled under any indemnity, reimbursement or similar provision
contained in the Receivables Sale Agreement.
(k) Ownership. Borrower will (or will require each Originator to) take
all necessary action to (i) vest legal and equitable title to the Collateral
acquired by Borrower under the Receivables Sale Agreement irrevocably in
Borrower, free and clear of any Adverse Claims (other than Adverse Claims in
favor of the Administrative Agent, for the benefit of the Secured Parties)
including, without limitation, the filing of all financing statements or other
similar instruments or documents necessary under the UCC (or any comparable law)
of all appropriate jurisdictions to perfect Borrower's interest in such
Collateral and such other necessary action to perfect, protect or more fully
evidence the interest of Borrower therein as the Administrative Agent may
reasonably request, and (ii) establish and maintain, in favor of the
Administrative Agent, for the benefit of the Secured Parties, a valid and
perfected first priority perfected security interest in all Collateral, free and
clear of any Adverse Claims, including, without limitation, the filing of all
financing statements or other similar instruments or documents necessary under
the UCC (or any comparable law) of all appropriate jurisdictions to perfect the
Administrative Agent's (for the benefit of the Secured Parties) security
interest in the Collateral and such other action to perfect, protect or more
fully evidence the interest of the Administrative Agent for the benefit of the
Secured Parties as the Administrative Agent may reasonably request.
(l) Separate Existence of the Borrower. Each Loan Party hereby
acknowledges that Lenders and the Agents are entering into the transactions
contemplated hereby in reliance upon the Borrower's identity as a legal entity
separate from the Servicer and its other Affiliates. Therefore, each Loan Party
shall take all steps specifically required by this Agreement or reasonably
required by any of the Agents to continue the Borrower's identity as a separate
legal entity and to make it apparent to third Persons that the Borrower is an
entity with assets and liabilities distinct from those of its Affiliates, and is
not a division of BSX or any other Person (including complying with and causing
to be true and correct each of the facts and
24
assumptions contained in the legal opinion of Shearman & Sterling). Without
limiting the foregoing, each Loan Party will take such actions as shall be
required in order that:
(i) The Borrower will be a limited purpose limited liability company
whose primary activities are restricted in its limited liability company
agreement to purchasing or otherwise acquiring from any of the Originators,
owning, holding, granting security interests in the Collateral, entering
into agreements for the financing and servicing of the Receivables, and
conducting such other activities as it deems necessary or appropriate to
carry out its primary activities;
(ii) The Borrower's independent manager (the "Independent Manager")
shall be an individual who is not, and never has been, a direct, indirect
or beneficial stockholder, member, officer, director, employee, affiliate,
associate, material supplier or material customer of BSX or any of its
Affiliates (other than an Affiliate organized with a limited purpose
charter for the purpose of acquiring receivables or other financial assets
or intangible property). The limited liability company agreement of the
Borrower shall provide that (A) so long as any Obligations are outstanding,
the Borrower at all times shall have at least one Independent Manager, (B)
the Borrower's members shall not approve, or take any other action to cause
the filing of, a voluntary bankruptcy petition with respect to the Borrower
unless the Independent Manager shall approve the taking of such action in
writing prior to the taking of such action and (C) the provisions requiring
an independent member and the provisions described in clauses (A) and (B)
of this paragraph (ii) cannot be amended without the prior written consent
of the Independent Manager;
(iii) The Independent Manager shall not at any time serve as a trustee
in bankruptcy for the Borrower or any Affiliate thereof;
(iv) Any director, manager, employee, consultant or agent of the
Borrower will be compensated from the Borrower's funds for services
provided to the Borrower. The Borrower will not engage any agents other
than its attorneys, auditors and other professionals and a servicer and any
other agent contemplated by the Transaction Documents for the Collateral,
which servicer will be fully compensated for its services by payment of the
Servicing Fee, and certain organizational expenses in connection with the
formation of the Borrower;
(v) The Borrower will contract with the Servicer to perform for the
Borrower all operations required on a daily basis to service the
Collateral. The Borrower will pay the Servicer the Servicing Fee pursuant
hereto. The Borrower will not incur any material indirect or overhead
expenses for items shared with BSX (or any other Affiliate thereof) which
are not reflected in the Servicing Fee. To the extent, if any, that the
Borrower (or any other Affiliate thereof) shares items of expenses not
reflected in the Servicing Fee, for legal, auditing and other professional
services and directors' fees, such expenses will be allocated to the extent
practical on the basis of actual use or the value of services
25
rendered, and otherwise on a basis reasonably related to the actual use or
the value of services rendered, it being understood that BSX shall pay all
expenses relating to the preparation, negotiation, execution and delivery
of the Transaction Documents, including, without limitation, legal, rating
agency and other fees;
(vi) The Borrower's operating expenses will not be paid by any other
Loan Party or other Affiliate of the Borrower;
(vii) The Borrower will have its own stationery;
(viii) The books of account, financial reports and records of the
Borrower will be maintained separately from those of BSX and each other
Affiliate of the Borrower;
(ix) Any financial statements of any Loan Party or Affiliate thereof
which are consolidated to include the Borrower will contain detailed notes
clearly stating that (A) all of the Borrower's assets are owned by the
Borrower, and (B) the Borrower is a separate legal entity with its own
separate creditors that will be entitled to be satisfied out of the
Borrower's assets prior to any value in the Borrower becoming available to
the Borrower's equity holders; and the accounting records and the published
financial statements of each of the Originators will clearly show that, for
accounting purposes, the Receivables and Related Assets have been sold by
such Originator to the Borrower;
(x) The Borrower's assets will be maintained in a manner that
facilitates their identification and segregation from those of the Servicer
and the other Affiliates;
(xi) Each Affiliate of the Borrower will strictly observe
organizational formalities in its dealings with the Borrower, and, except
as permitted pursuant to this Agreement with respect to Collections, funds
or other assets of the Borrower will not be commingled with those of any of
its Affiliates;
(xii) No Affiliate of the Borrower will maintain joint bank accounts
with the Borrower or other depository accounts with the Borrower to which
any such Affiliate (other than in the Borrower's or such Affiliate's
existing or future capacity as the Servicer hereunder or under the
Receivables Sale Agreement) has independent access;
(xiii) Each Affiliate of the Borrower will maintain arm's length
relationships with the Borrower, and each Affiliate of the Borrower that
renders or otherwise furnishes services or merchandise to the Borrower will
be compensated by the Borrower at market rates for such services or
merchandise;
(xiv) No Affiliate of the Borrower will be, nor will it hold itself
out to be, responsible for the debts of the Borrower or the decisions or
actions in respect of the daily business and affairs of the Borrower. BSX
and the Borrower will immediately correct any known misrepresentation with
respect to the foregoing
26
and they will not operate or purport to operate as an integrated single
economic unit with respect to each other or in their dealing with any other
entity;
(xv) The Borrower will keep correct and complete books and records of
account and minutes of the meetings and other proceedings of its member(s)
and the resolutions, agreements and other instruments of the Borrower will
be continuously maintained as official records by the Borrower; and
(xvi) The Borrower will conduct its business solely in its own legal
name and in a manner separate from the Originators so as not to mislead
others with whom they are dealing.
(m) Collections. BSX and Borrower will cause (1) all proceeds from all
Lockboxes to be directly deposited by a Collection Bank into a Collection
Account and (2) each Lockbox and Collection Account to be subject at all times
to a Collection Account Agreement that is in full force and effect. In the event
any payments relating to the Collateral are remitted directly to Borrower or any
Affiliate of Borrower, Borrower will remit (or will cause all such payments to
be remitted) directly to a Collection Bank and deposited into a Collection
Account within two (2) Business Days following receipt thereof, and, at all
times prior to such remittance, Borrower will itself hold or, if applicable,
will cause such payments to be held in trust for the exclusive benefit of the
Administrative Agent and the Lenders. Borrower will maintain exclusive ownership
of each Lockbox and Collection Account and shall not grant the right to take
dominion and control of any Lockbox or Collection Account at a future time or
upon the occurrence of a future event to any Person, except to the
Administrative Agent as contemplated by this Agreement.
(n) Taxes. Such Loan Party will file all tax returns and reports
required by law to be filed by it and will promptly pay all taxes and
governmental charges at any time owing, except any such taxes which are not yet
delinquent or are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books. Borrower will pay when due any taxes payable in
connection with the Receivables, exclusive of taxes on or measured by income or
gross receipts of any Agent or any Lender.
(o) Payment to Originators. With respect to any Receivable purchased
by Borrower from any Originator, such sale shall be effected under, and in
strict compliance with the terms of (including any grace periods contained
therein), the Receivables Sale Agreement, including, without limitation, the
terms relating to the amount and timing of payments to be made to the applicable
Originator in respect of the purchase price for such Receivable.
Section 7.2 Negative Covenants of the Loan Parties. Until the Final Payout
Date, each Loan Party hereby covenants, as to itself, that:
(a) Name Change, Offices and Records. Borrower and Servicer will not,
and will not consent to any request by any Originator to, change its name,
identity, jurisdiction of organization or corporate structure (within the
meaning of Sections 9-503 and/or 9-507 of the UCC of all applicable
jurisdictions) or relocate its chief executive office, principal place of
27
business or any office where Records are kept unless it shall have: (i) given
Borrower and the Administrative Agent at least forty-five (45) days' prior
written notice thereof and (ii) delivered to the Administrative Agent all
financing statements, instruments and other documents reasonably and promptly
requested by the Administrative Agent in connection with such change or
relocation.
(b) Change in Payment Instructions to Obligors. Except as may be
required by the Administrative Agent pursuant to Section 8.2(b), no Loan Party
will add or terminate any bank as a Collection Bank, or make any change in the
instructions to Obligors regarding payments to be made to any Lockbox or
Collection Account, unless the Administrative Agent shall have received, at
least ten (10) days before the proposed effective date therefor, (i) written
notice of such addition, termination or change and (ii) with respect to the
addition of a Collection Bank or a Collection Account or Lockbox, an executed
Collection Account Agreement with respect to the new Collection Account or
Lockbox; provided, however, that the Servicer may make changes in instructions
to Obligors without any prior notice regarding payments if such new instructions
require such Obligor to make payments to another existing Collection Account. No
Loan Party will deposit or authorize the deposit to any Collection Account of
any cash or cash proceeds other than Collections of Receivables; it being
understood and agreed that no Loan Party shall be deemed to have breached the
covenant set forth in this Section 7.2(b) solely by virtue of any deposits to
any Collection Account of any cash or cash proceeds to the extent such deposit
has not been authorized by such Loan Party.
(c) Modifications to Contracts and Credit and Collection Policy. Such
Loan Party will not, and will not permit any Originator to, make any change to
the Credit and Collection Policy that could adversely affect the collectibility
of the Receivables or decrease the credit quality of any newly created
Receivables. Except as provided in Section 8.2(d), the Servicer will not, and
will not permit any Originator to, extend, amend or otherwise modify the terms
of any Receivable or any Contract related thereto other than in accordance with
the Credit and Collection Policy.
(d) Sales, Liens. Except as otherwise contemplated by the Transaction
Documents, no Loan Party will sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, or create or suffer
to exist any Adverse Claim upon (including, without limitation, the filing of
any financing statement) or with respect to, any of the Collateral, or assign
any right to receive income with respect thereto (other than, in each case, the
creation of a security interest therein in favor of the Administrative Agent as
provided for herein), and each Loan Party will defend the right, title and
interest of the Secured Parties in, to and under any of the foregoing property,
against all claims of third parties claiming through or under Borrower or any
Originator. No Loan Party will create or suffer to exist any mortgage, pledge,
security interest, encumbrance, lien, charge or other similar arrangement on any
of its inventory.
(e) Use of Proceeds. Borrower will not use the proceeds of the
Advances for any purpose other than (i) paying for Receivables and Related
Security under and in accordance with the Receivables Sale Agreement, including
without limitation, making payments on the Subordinated Notes to the extent
permitted thereunder and under the Receivables Sale Agreement, (ii) making
Demand Advances to BSX at any time prior to the Facility Termination
28
Date while it is acting as Servicer and no Amortization Event or Unmatured
Amortization Event exists and is continuing, (iii) paying its ordinary and
necessary operating expenses when and as due, and (iv) making Restricted Junior
Payments to the extent permitted under this Agreement.
(f) Restricted Junior Payments. Borrower will not make any Restricted
Junior Payment if after giving effect thereto, Borrower's Net Worth would be
less than the Required Capital Amount (as defined in the Receivables Sale
Agreement).
(g) Borrower Indebtedness. Borrower will not incur or permit to exist
any Indebtedness except: (i) the Obligations, (ii) the Subordinated Loans, and
(iii) other current accounts payable arising in the ordinary course of business
and not overdue.
(h) Prohibition on Additional Negative Pledges. No Loan Party will
enter into or assume any agreement (other than this Agreement and the other
Transaction Documents) prohibiting the creation or assumption of any Adverse
Claim upon the Collateral except as contemplated by the Transaction Documents,
or otherwise prohibiting or restricting any transaction contemplated hereby or
by the other Transaction Documents, and no Loan Party will enter into or assume
any agreement creating any Adverse Claim upon the Subordinated Notes.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
Section 8.1 Designation of Servicer.
(a) The servicing, administration and collection of the Receivables
shall be conducted by the Person designated as Servicer hereunder ("Servicer")
from time to time in accordance with this Section 8.1. Until the Administrative
Agent gives to BSX a Successor Notice (as defined in Section 8.1(b)), BSX is
hereby designated as, and hereby agrees to perform the duties and obligations
of, Servicer pursuant to the terms hereof.
(b) Upon BSX's receipt of a notice from the Administrative Agent of
the Administrative Agent's designation of a new Servicer pursuant to the terms
hereof (a "Successor Notice"), BSX agrees that it shall terminate its activities
as Servicer hereunder in a manner that the Administrative Agent reasonably
believes will facilitate the transition of the performance of such activities to
the new Servicer, and the Administrative Agent (or its designee) shall assume
each and all of BSX's obligations to service and administer such Receivables, on
the terms and subject to the conditions herein set forth, and BSX shall use its
best efforts to assist the Administrative Agent (or its designee) in assuming
such obligations. The Administrative Agent agrees not to give BSX a Successor
Notice until after the occurrence of an Amortization Event.
(c) BSX may delegate to each other Originator, as sub-servicer of the
Servicer, certain of its duties and responsibilities as Servicer hereunder in
respect of the Receivables. Without the prior written consent of the Agents, BSX
shall not be permitted to delegate any of its duties or responsibilities as
Servicer to any Person other than (i) Borrower, (ii) any other Originator, and
(iii) with respect to certain Defaulted Receivables, outside collection agencies
in accordance with its customary practices. Neither Borrower nor any other
Originator shall be permitted to further delegate to any other Person any of the
duties or responsibilities of the Servicer delegated to it by BSX. If at any
time the Administrative Agent shall designate as
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Servicer any Person other than BSX, all duties and responsibilities theretofore
delegated by BSX to Borrower or any other Originator may, at the discretion of
the Administrative Agent, be terminated forthwith on notice given by the
Administrative Agent to BSX and to Borrower and the applicable Originator.
(d) Notwithstanding delegation under the foregoing subsection (c): (i)
BSX shall be and remain primarily liable to the Agents and the Lenders for the
full and prompt performance of all duties and responsibilities of the Servicer
hereunder and (ii) the Agents and the Lenders shall be entitled to deal
exclusively with BSX in matters relating to the discharge by the Servicer of its
duties and responsibilities hereunder. The Agents and the Lenders shall not be
required to give notice, demand or other communication to any Person other than
BSX in order for communication to the Servicer and its sub-servicer or other
delegate with respect thereto to be accomplished. BSX, at all times that it is
the Servicer, shall be responsible for providing any sub-servicer or other
delegate of the Servicer with any notice given to the Servicer under this
Agreement.
(e) Power of Attorney. Each Loan Party hereby grants to Servicer (if
other than such Loan Party) an irrevocable power of attorney, with full power of
substitution, coupled with an interest, to take in the name of such Loan Party
all steps which are necessary or advisable to endorse, negotiate, enforce, or
otherwise realize on any writing or other right of any kind held or transmitted
by such Loan Party or transmitted or received by such Loan Party in connection
with any Collateral.
Section 8.2 Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such actions as
may be necessary or advisable to collect each Receivable from time to time, all
in accordance with applicable laws, rules and regulations, with reasonable care
and diligence, and in accordance with the Credit and Collection Policy.
(b) The Servicer will instruct all Obligors to pay all Collections
directly to a Lockbox or Collection Account. The Servicer shall effect a
Collection Account Agreement substantially in the form of Exhibit VI with each
bank party to a Collection Account at any time. In the case of any remittances
received in any Lockbox or Collection Account that shall have been identified,
to the satisfaction of the Servicer, to not constitute Collections or other
proceeds of the Receivables or the Related Security, the Servicer shall promptly
remit such items to the Person identified to it as being the owner of such
remittances. From and after the date the Administrative Agent delivers to any
Collection Bank a Collection Notice pursuant to Section 8.3, the Administrative
Agent may request that the Servicer, and the Servicer thereupon promptly shall
instruct all Obligors with respect to the Receivables, to remit all payments
thereon to a new depositary account specified by the Administrative Agent and,
at all times thereafter, Borrower and the Servicer shall not deposit or
otherwise credit, and shall not permit any other Person to deposit or otherwise
credit to such new depositary account any cash or payment item other than
Collections.
(c) The Servicer shall administer the Collections in accordance with
the procedures described herein and in Article III. The Servicer shall set aside
and hold in trust for
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the account of Borrower and the Lenders their respective shares of the
Collections in accordance with Article III. The Servicer shall, upon the request
of the Administrative Agent, segregate, in a manner acceptable to the
Administrative Agent, all cash, checks and other instruments received by it from
time to time constituting Collections from the general funds of the Servicer or
Borrower prior to the remittance thereof in accordance with Article III. If the
Servicer shall be required to segregate Collections pursuant to the preceding
sentence, the Servicer shall segregate and deposit with a bank designated by the
Administrative Agent such allocable share of Collections of Receivables set
aside for the Lenders on the first Business Day following receipt by the
Servicer of such Collections, duly endorsed or with duly executed instruments of
transfer.
(d) The Servicer may, in accordance with the Credit and Collection
Policy, extend the maturity of any Receivable or adjust the Outstanding Balance
of any Receivable as the Servicer determines to be appropriate to maximize
Collections thereof; provided, however, that such extension or adjustment shall
not alter the status of such Receivable as a Delinquent Receivable or Defaulted
Receivable or limit the rights of the Administrative Agent or the Lenders under
this Agreement. Notwithstanding anything to the contrary contained herein, upon
the occurrence and during the continuance of an Amortization Event the
Administrative Agent shall have the absolute and unlimited right to direct the
Servicer to commence or settle any legal action with respect to any Receivable
or to foreclose upon or repossess any Related Security.
(e) The Servicer shall hold in trust for Borrower and the Lenders all
Records that (i) evidence or relate to the Receivables, the related Contracts
and Related Security or (ii) are otherwise necessary or desirable to collect the
Receivables and shall, as soon as practicable after the occurrence and during
the continuance of an Amortization Event and upon demand of the Administrative
Agent, deliver or make available to the Administrative Agent all such Records,
at a place selected by the Administrative Agent. The Servicer shall, as soon as
practicable following receipt thereof turn over to applicable Originator any
cash collections or other cash proceeds received with respect to Indebtedness
not constituting Receivables. The Servicer shall, from time to time at the
request of any Lender, furnish to the Lenders (promptly after any such request)
a calculation of the amounts set aside for the Lenders pursuant to Article III.
(f) Any payment by an Obligor in respect of any indebtedness owed by
it to any Originator or Borrower shall, except as otherwise specified by such
Obligor or otherwise required by contract or law and unless otherwise instructed
by the Administrative Agent, be applied as a Collection of any Receivable of
such Obligor (starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to any other
receivable or other obligation of such Obligor.
Section 8.3 Rights of Administrative Agent. The Administrative Agent is
authorized at any time to date and to deliver to the Collection Banks the
Collection Notices. Borrower hereby transfers, to the fullest extent permitted
by applicable law, to the Administrative Agent for the benefit of the Lenders,
effective when the Administrative Agent delivers such notice, the exclusive
ownership and control of each Lockbox and the Collection Accounts. In case any
authorized signatory of Borrower whose signature appears on a Collection Account
Agreement shall cease to have such authority before the delivery of such notice,
such Collection Notice shall nevertheless be valid as if such authority had
remained in force. Borrower hereby irrevocably
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constitutes and appoints the Administrative Agent with full power of
substitution, as Borrower's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Borrower and in the
name of Borrower or in its own name and without limiting the generality of the
foregoing, grants to Administrative Agent the power and right, on behalf of
Borrower, without notice or assent by Borrower to (i) at any time after delivery
of the Collection Notices, endorse Borrower's name on checks and other
instruments representing Collections, (ii) at any time after the occurrence and
continuation of an Amortization Event, enforce the Receivables, the related
Contracts and the Related Security, and (iii) at any time after the occurrence
and continuation of an Amortization Event, take such action as shall be
necessary or desirable to cause all cash, checks and other instruments
constituting Collections of Receivables to come into the possession of the
Administrative Agent rather than Borrower.
(a) At any time following the designation of a Servicer other than BSX
or any of its Affiliates pursuant to Section 8.1:
(i) the Administrative Agent may direct the Obligors of
Receivables, or any of them, to pay all amounts payable under any Receivable
directly to the Administrative Agent (or other Person designated by the
Administrative Agent).
(ii) Borrower shall, at the Administrative Agent's request and at
Borrower's expense, give notice of the Administrative Agent's security interest
in the Receivables to each said Obligor and direct that payments be made
directly to the Administrative Agent.
(iii) Borrower shall, (A) at the Administrative Agent's request,
assemble all of the Records and (B) at the request of any Agent or its designee
exercise or enforce any of their respective rights hereunder, under any other
Transaction Document, under any Receivable or under any Related Security.
Without limiting the generality of the foregoing, Borrower shall upon the
request of the Administrative Agent or its designee:
(A) execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and such other
instruments or notices, as may be necessary or appropriate; and
(B) xxxx its master data processing records evidencing such
Receivables with such legend.
(b) Borrower hereby authorizes the Administrative Agent or its
designee to file one or more financing or continuation statements, and
amendments thereto and assignments thereof, relative to all or any of the
Receivables and the Related Security now existing or hereafter arising in the
name of Borrower without any signature of Borrower. If Borrower fails to perform
any of its agreements or obligations under this Agreement or any other
Transaction Document, the Administrative Agent or its designee may (but shall
not be required to) itself perform, or cause performance of, such agreement or
obligation, and the expenses of the Administrative Agent or its designee
incurred in connection therewith shall be payable by Borrower as provided
herein.
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Section 8.4 Responsibilities of Borrower. Anything herein to the contrary
notwithstanding, the exercise by the Administrative Agent and the Lenders of
their rights hereunder shall not release the Servicer, any Originator or
Borrower from any of their duties or obligations with respect to any Receivables
or under the related Contracts. The Agents and the Lenders shall have no
obligation or liability with respect to any Receivables or related Contracts,
nor shall any of them be obligated to perform the obligations of Borrower or any
Originator.
Section 8.5 Monthly Reports and Other Information. The Servicer shall
prepare and forward to the Co-Agents (i) on each Monthly Reporting Date, a
Monthly Report and an electronic file of the data contained therein and (ii) at
such times as the Administrative Agent shall request, a listing by Obligor of
all Receivables together with an aging of such Receivables, provided, that, each
Co-Agent may request that a computation of the Borrowing Base be made from time
to time on a date that is not a Monthly Reporting Date and the Servicer will as
soon as practicable comply with such request.
Section 8.6 Servicing Fee. As compensation for the Servicer's servicing
activities on their behalf, the Lenders hereby agree to pay the Servicer the
Servicing Fee, which fee shall be paid in arrears on each Settlement Date and
shall be subject to the provisions of Section 3.2(d).
ARTICLE IX
AMORTIZATION EVENTS
Section 9.1 Amortization Events. The occurrence of any one or more of the
following events shall constitute an "Amortization Event:"
(a) Any Loan Party shall fail to make any payment or deposit (i) of
principal when required to be made by it under the Transaction Documents; or
(ii) of any other Obligation or amount not covered by clause (i) when required
to be made by it under the Transaction Documents and such failure continues for
five (5) consecutive days.
(b) Any representation, warranty, certification or statement made or
deemed made by any Loan Party in any Transaction Document to which it is a party
or in any other document delivered pursuant thereto shall prove to have been
false or incorrect in any material respect when made or deemed made; provided
that the materiality threshold in the foregoing clause shall not be applicable
with respect to any representation or warranty which itself is subject to a
materiality threshold.
(c) Any Loan Party shall fail to perform or observe any covenant
contained in Section 7.2 or 8.5 when due.
(d) Except as provided in any other subsection or clause of this
Section 9.1, any Loan Party shall fail to perform or observe any other covenant
or agreement contained in any Transaction Document, and such failure shall
continue for thirty (30) consecutive days
(e) Failure of Borrower to pay any Indebtedness (other than the
Obligations) when due or the default by Borrower in the performance of any term,
provision or condition contained in any agreement under which any such
Indebtedness was created or is governed, the effect of which is to cause, or to
permit the holder or holders of such Indebtedness to cause, such Indebtedness to
become due prior to its stated maturity; or any such
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Indebtedness of Borrower shall be declared to be due and payable or required to
be prepaid (other than by a regularly scheduled payment) prior to the date of
maturity thereof.
(f) Failure of BSX (at any time while it is a Loan Party) or any of
its Subsidiaries other than Borrower to pay Indebtedness in excess of
$100,000,000 in aggregate principal amount (hereinafter, "Material
Indebtedness") when due taking into account any applicable grace period; or the
default by BSX (at any time while it is a Loan Party) or any of its Subsidiaries
other than Borrower in the performance of any term, provision or condition
contained in any agreement under which any Material Indebtedness was created or
is governed, the effect of which is to cause such Material Indebtedness to
become due prior to its stated maturity; or any Material Indebtedness of BSX (at
any time while it is a Loan Party) or any of its Subsidiaries other than
Borrower shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the date of maturity
thereof.
(g) An Event of Bankruptcy shall occur with respect to any Loan Party
or any Material Subsidiary of any Loan Party.
(h) As at the end of any Calculation Period:
(i) the three-month rolling average Past Due Ratio shall exceed
2.80%, or
(ii) the three-month rolling average Dilution Ratio shall exceed
4.4% for any other three-month period.
(i) A Change of Control shall occur.
(j) One or more judgments or decrees shall be entered against the
Servicer 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 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 one or more judgments or decrees shall be entered
against the Borrower, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof.
(k) The "Sale Termination Date" under and as defined in the
Receivables Sale Agreement shall occur or any Originator shall for any reason
cease to transfer, or cease to have the legal capacity to transfer, or otherwise
be incapable of transferring Receivables under the Receivables Sale Agreement.
(l) This Agreement shall terminate in whole or in part (except in
accordance with its terms), or shall cease to be effective or to be the legally
valid, binding and enforceable obligation of Borrower, or the Administrative
Agent for the benefit of the Secured Parties shall cease to have a valid and
perfected first priority security interest in the Collateral.
(m) On any Settlement Date, after giving effect to the turnover of
Collections by the Servicer on such date and the application thereof to the
Obligations in accordance with
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this Agreement, (i) any Group's Loans at any time outstanding shall exceed the
aggregate amount of such Group's Liquidity Banks' Commitments or (ii) the Net
Pool Balance shall be less than the sum of (A) the Aggregate Principal plus (B)
the Required Reserve.
(n) The Internal Revenue Service shall file notice of a lien pursuant
to Section 6323 of the Code with regard to any of the Collateral and such lien
shall not have been released within seven (7) days, or the PBGC shall file
notice of a lien pursuant to Section 4068 of ERISA with regard to any of the
Collateral and such lien shall not have been released within seven (7) days.
Section 9.2 Remedies. Upon the occurrence and during the continuation of an
Amortization Event, the Administrative Agent may, or upon the direction of the
Required Liquidity Banks shall, take any of the following actions: (i) replace
the Person then acting as Servicer if the Administrative Agent has not already
done so, (ii) declare the Amortization Date to have occurred, whereupon the
Aggregate Commitment shall immediately terminate and the Amortization Date shall
forthwith occur, all without demand, protest or further notice of any kind, all
of which are hereby expressly waived by each Loan Party; provided, however, that
upon the occurrence of an Event of Bankruptcy with respect to any Loan Party,
the Amortization Date shall automatically occur, without demand, protest or any
notice of any kind, all of which are hereby expressly waived by each Loan Party,
(iii) deliver the Collection Notices to the Collection Banks, (iv) exercise all
rights and remedies of a secured party upon default under the UCC and other
applicable laws, and (v) notify Obligors of the Administrative Agent's security
interest in the Receivables and other Collateral. The aforementioned rights and
remedies shall be without limitation, and shall be in addition to all other
rights and remedies of the Administrative Agent and the Lenders otherwise
available under any other provision of this Agreement, by operation of law, at
equity or otherwise, all of which are hereby expressly preserved, including,
without limitation, all rights and remedies provided under the UCC, all of which
rights shall be cumulative.
ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnities.
(a) General Indemnity. Without limiting any other rights which any
such Person may have hereunder or under applicable law, the Borrower hereby
agrees to indemnify each of the Affected Parties, each of their respective
Affiliates, and all successors, transferees, participants and assigns and all
officers, directors, shareholders, controlling persons, employees and agents of
any of the foregoing (each, an "Indemnified Party"), forthwith on demand, from
and against any and all damages, losses, claims, liabilities and reasonable
related out-of-pocket costs and expenses, including reasonable attorneys' fees
and disbursements (all of the foregoing being collectively referred to as
"Indemnified Amounts") awarded against or incurred by any of them arising out of
or relating to the Transaction Documents, the Obligations, the Collateral or the
actions of the Loan Parties excluding, however: (i) Indemnified Amounts to the
extent determined by a court of competent jurisdiction to have resulted from bad
faith, gross negligence or willful misconduct on the part of such Indemnified
Party, (ii) taxes imposed by the jurisdiction in which such Indemnified Party's
principal executive office is located, on or measured by the
35
overall net income of such Indemnified Party; and or (iii) recourse (except as
otherwise specifically provided in this Agreement) for Indemnified Amounts to
the extent the same includes losses in respect of Receivables that were Eligible
Receivables on the date such Receivables were purchased by the Borrower which
are uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor. Without limiting the foregoing, the
Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising
out of or relating to:
(A) the creation of any Lien on, or transfer by any Loan Party of any
interest in, the Collateral other than as provided in the Transaction
Documents;
(B) any representation or warranty made by any Originator or Loan
Party (or any of its officers) under or in connection with any Transaction
Document, any Monthly Report or any other information or report delivered
by or on behalf of any Originator or Loan Party pursuant thereto, which
shall have been false, incorrect or misleading in any respect when made or
deemed made or delivered, as the case may be;
(C) the failure by any Loan Party to comply with the terms of any
Transaction Document or any applicable law, rule or regulation with respect
to any Receivable or the related Contract and/or Invoice, or the
nonconformity of any Receivable or the related Contract and/or Invoice with
any such applicable law, rule or regulation;
(D) the failure to vest and maintain vested in the Borrower a
perfected ownership interest in all Collateral; or the failure to vest and
maintain vested in the Administrative Agent, for the benefit of the Secured
Parties, a valid and perfected first priority security interest in the
Collateral, free and clear of any other Lien, other than a Lien arising
solely as a result of an act of one of the Secured Parties, now or at any
time thereafter;
(E) [Intentionally Omitted]
(F) any dispute, claim, offset or defense of the Obligor to the
payment of any Receivable (including, without limitation, a defense based
on such Receivables or the related Contract and/or Invoice not being a
legal, valid and binding obligation of such Obligor enforceable against it
in accordance with its terms), or any other claim resulting from the sale
of the services related to such Receivable or the furnishing or failure to
furnish such services (provided that this clause (F) shall not be applied
to provide credit recourse in respect of the portion of the Outstanding
Balance of any Receivable which has been discharged in the bankruptcy of
the Obligor thereon);
(G) any matter described in Section 3.4;
(H) any failure of any Loan Party to perform its duties or obligations
in accordance with the provisions of this Agreement or the other
Transaction Documents to which it is a party;
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(I) any claim of breach by any Originator or Loan Party of any related
Contract and/or Invoice with respect to any Receivable;
(J) any Tax (but not including Taxes upon or measured by net income or
net profits or franchise Taxes in lieu of net income or net profits Taxes),
all interest and penalties thereon or with respect thereto, and all
out-of-pocket costs and expenses, including the reasonable fees and
expenses of counsel in defending against the same, which may arise by
reason of the Administrative Agent's security interest in the Collateral;
(K) the commingling of Collections of Receivables at any time with
other funds;
(L) any investigation, litigation or proceeding related to or arising
from this Agreement or any other Transaction Document, the transactions
contemplated hereby or thereby, the use of the proceeds of any Loan, the
security interest in the Receivables and Related Assets or any other
investigation, litigation or proceeding relating to the Borrower or any of
the Originators in which any Indemnified Party becomes involved as a result
of any of the transactions contemplated hereby or thereby;
(M) any products or professional liability, personal injury or damage
suit, or other similar claim arising out of or in connection with
merchandise, insurance or services that are the subject of any Contract,
Invoice or any Receivable;
(N) any inability to litigate any claim against any Obligor in respect
of any Receivable as a result of such Obligor being immune from civil and
commercial law and suit on the grounds of sovereignty or otherwise from any
legal action, suit or proceeding;
(O) the occurrence of any Event of Bankruptcy with respect to any Loan
Party; or
(P) any loss incurred by any of the Secured Parties as a result of the
inclusion in the Borrowing Base of Receivables owing from any single
Obligor and its Affiliates who are Obligors which causes the aggregate
Outstanding Balance of all such Receivables to exceed the applicable
Obligor Concentration Limit.
(b) Contest of Tax Claim; After-Tax Basis. If any Indemnified Party
shall have notice of any attempt to impose or collect any Tax or governmental
fee or charge for which indemnification will be sought from any Loan Party under
Section 10.1(a)(J), such Indemnified Party shall give prompt and timely notice
of such attempt to the Borrower and the Borrower shall have the right, at its
expense, to participate in any proceedings resisting or objecting to the
imposition or collection of any such Tax, governmental fee or charge.
Indemnification hereunder shall be in an amount necessary to make the
Indemnified Party whole after taking into account any tax consequences of the
payment of any of the aforesaid taxes or payments of
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amounts indemnified against hereunder (including any deduction) and the receipt
of the indemnity payment provided hereunder or of any refund of any such tax
previously indemnified hereunder, including the effect of such tax, amount
indemnified against, deduction or refund on the amount of tax measured by net
income or profits which is or was payable by the Indemnified Party.
(c) Contribution. If for any reason the indemnification provided above
in this Section 10.1 is unavailable to an Indemnified Party or is insufficient
to hold an Indemnified Party harmless, then the Borrower shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by such Indemnified Party on the one hand
and the Borrower on the other hand but also the relative fault of such
Indemnified Party as well as any other relevant equitable considerations.
Section 10.2 Indemnities by Servicer.
(a) Without limiting any other rights which any Indemnified Party may
have hereunder or under applicable law, the Servicer hereby agrees to indemnify
each of the Indemnified Parties forthwith on demand, from and against any and
all Indemnified Amounts awarded against or incurred by any of them arising out
of or relating to (i) the Servicer's performance of, or failure to perform, any
of its obligations under or in connection with any Transaction Document, (ii)
any representation or warranty made by the Servicer (or any of its officers)
under or in connection with any Transaction Document, any Monthly Report or any
other information or report delivered by or on behalf of the Servicer, which
shall have been false, incorrect or misleading in any material respect when made
or deemed made or delivered, as the case may be, (iii) the failure of the
Servicer to comply with any applicable law, rule or regulation with respect to
any Receivable or the related Contract and Invoice or (iv) any commingling of
any funds by the Servicer relating to the Receivables with any of its funds or
the funds of any other Person. Notwithstanding the foregoing, in no event shall
any Indemnified Party be indemnified from and against any and all (i)
Indemnified Amounts to the extent determined by a court of competent
jurisdiction to have resulted from gross negligence or willful misconduct on the
part of such Indemnified Party, (ii) taxes imposed by the jurisdiction in which
such Indemnified Party's principal executive office is located, on or measured
by the overall net income of such Indemnified Party; and or (iii) recourse
(except as otherwise specifically provided in this Agreement) for Indemnified
Amounts to the extent the same includes losses in respect of Receivables that
were Eligible Receivables on the date such Receivables were purchased by the
Borrower which are uncollectible on account of the insolvency, bankruptcy or
lack of creditworthiness of the related Obligor.
(b) If for any reason the indemnification provided above in this
Section 10.2 (and subject to the exceptions set forth therein) is unavailable to
an Indemnified Party or is insufficient to hold an Indemnified Party harmless,
then the Servicer shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by such Indemnified Party on the one hand and the Servicer on the other hand but
also the relative fault of such Indemnified Party as well as any other relevant
equitable considerations.
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Section 10.3 Other Costs and Expenses. Borrower shall pay to the Affected
Parties on demand all reasonable costs and out-of-pocket expenses actually
incurred in connection with the preparation, execution, delivery and
administration of this Agreement, the transactions contemplated hereby and the
other documents to be delivered hereunder, including without limitation, the
cost of one set of auditors for the Conduits auditing the books, records and
procedures of Borrower, reasonable fees and out-of-pocket expenses of legal
counsel for Old Line, Old Line Agent and the Administrative Agent actually
incurred (which such counsel may be employees of Old Line, Old Line Agent or the
Administrative Agent) with respect thereto and with respect to advising Old
Line, Victory, the Victory Agent, Old Line Agent and the Administrative Agent as
to their respective rights and remedies under this Agreement. Borrower shall pay
to the Administrative Agent on demand any and all reasonable costs and expenses
of the Administrative Agent and the Lenders, if any, including reasonable
counsel fees and expenses actually incurred in connection with the enforcement
of this Agreement and the other documents delivered hereunder and in connection
with any restructuring or workout of this Agreement or such documents, or the
administration of this Agreement following an Amortization Event.
Section 10.4 Taxes. Any sales or use tax payable in connection with the
transactions contemplated herein, and any documentary stamp taxes or recording
taxes associated with the perfection of the Lender's interest in the Receivables
and Related Assets.
ARTICLE XI
THE AGENTS
Section 11.1 Appointment.
(a) With respect to each Group, each member of such Group hereby
irrevocably designates and appoints its related Co-Agent to act in such capacity
hereunder and under the other Transaction Documents to which such Co-Agent is a
party , and authorizes such Co-Agent to take such action on its behalf under the
provisions of the Transaction Documents and to exercise such powers and perform
such duties as are expressly delegated to such Co-Agent by the terms of the
Transaction Documents, together with such other powers as are reasonably
incidental thereto. Each of the Lenders and the Co-Agents hereby irrevocably
designates and appoints Royal Bank of Canada as Administrative Agent hereunder
and under the Transaction Documents to which the Administrative Agent is a
party, and authorizes the Administrative Agent to take such action on its behalf
under the provisions of the Transaction Documents and to exercise such powers
and perform such duties as are expressly delegated to the Administrative Agent
by the terms of the Transaction Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, none of the Agents shall have any duties or
responsibilities, except those expressly set forth in the Transaction Documents
to which it is a party, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of such Agent shall be read into any Transaction
Document or otherwise exist against such Agent.
(b) The provisions of this Article XI are solely for the benefit of
the Agents and the Lenders, and none of the Loan Parties shall have any rights
as a third-party beneficiary or
39
otherwise under any of the provisions of this Article XI, except that this
Article XI shall not affect any obligations which any of the Agents or Lenders
may have to any of the Loan Parties under the other provisions of this
Agreement.
(c) In performing its functions and duties hereunder, (i) each
Co-Agent shall act solely as the agent of the members of its related Group and
does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for any of the Loan Parties or any of
their respective successors and assigns, and (ii) the Administrative Agent shall
act solely as the agent of the Secured Parties and does not assume nor shall be
deemed to have assumed any obligation or relationship of trust or agency with or
for any of the Loan Parties or any of their respective successors and assigns.
Section 11.2 Delegation of Duties. Each of the Agents may execute any of
its duties under the Transaction Documents to which it is a party by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. None of the Agents shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
Section 11.3 Exculpatory Provisions. None of the Agents nor any of its
directors, officers, agents or employees shall be (i) liable to any of the
Lenders or other Agents for any action lawfully taken or omitted to be taken by
it or them or any Person described in Section 11.2 under or in connection with
this Agreement (except for its, their or such Person's own bad faith, gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Lenders or other Agents for any recitals, statements, representations or
warranties made by Borrower contained in this Agreement or in any certificate,
report, statement or other document referred to or provided for in, or received
under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other document furnished in connection herewith, or for any failure of any
of the Loan Parties to perform its respective obligations hereunder, or for the
satisfaction of any condition specified in Article V, except receipt of items
required to be delivered to such Agent. None of the Agents shall be under any
obligation to any other Agent or any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements or covenants contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
the Loan Parties. This Section 11.3 is intended solely to govern the
relationship between the Agents, on the one hand, and the Lenders and their
respective Liquidity Banks, on the other.
Section 11.4 Reliance by Agents.
(a) Each of the Agents shall in all cases be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, 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 Loan Parties), independent accountants and
other experts selected by such Agent. Each of the Agents shall in all cases be
fully justified in failing or refusing to take any action under this Agreement
or any other document furnished in connection herewith unless it shall first
receive such advice or concurrence of such of its Lenders
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and Liquidity Banks, as it shall determine to be appropriate under the relevant
circumstances, or it shall first be indemnified to its satisfaction by its
Constituent Liquidity Banks against any and all liability, cost and expense
which may be incurred by it by reason of taking or continuing to take any such
action.
(b) Any action taken by any of the Agents in accordance with Section
11.4(a) shall be binding upon all of the Agents and the Lenders.
Section 11.5 Notice of Events of Default. None of the Agents shall be
deemed to have knowledge or notice of the occurrence of any Amortization Event
or Unmatured Amortization Event unless such Agent has received notice from
another Agent, a Lender or a Loan Party referring to this Agreement, stating
that an Amortization Event or Unmatured Amortization Event has occurred
hereunder and describing such Amortization Event or Unmatured Amortization
Event. In the event that any of the Agents receives such a notice, it shall
promptly give notice thereof to the Lenders and the other Agents. The
Administrative Agent shall take such action with respect to such Amortization
Event or Unmatured Amortization Event as shall be directed by either of the
Co-Agents, provided that the Administrative Agent is indemnified to its
satisfaction by such Co-Agent and its Constituent Liquidity Banks against any
and all liability, cost and expense which may be incurred by it by reason of
taking any such action.
Section 11.6 Non-Reliance on Other Agents and Lenders. Each of the Lenders
expressly acknowledges that none of the Agents, nor any of the Agents'
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
any of the Agents hereafter taken, including, without limitation, any review of
the affairs of the Loan Parties, shall be deemed to constitute any
representation or warranty by such Agent. Each of the Lenders also represents
and warrants to the Agents and the other Lenders that it has, independently and
without reliance upon any such Person (or any of their Affiliates) and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of the Loan
Parties and made its own decision to enter into this Agreement. Each of the
Lenders also represents that it will, independently and without reliance upon
the Agents or any other Liquidity Bank or 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 to make such investigation as it deems necessary to
inform itself as to the business, operations, property, prospects, financial and
other condition and creditworthiness of the Loan Parties. The Agents, the
Lenders and their respective Affiliates, shall have no duty or responsibility to
provide any party to this Agreement with any credit or other information
concerning the business, operations, property, prospects, financial and other
condition or creditworthiness of the Loan Parties which may come into the
possession of such Person or any of its respective officers, directors,
employees, agents, attorneys-in-fact or affiliates, except that each of the
Agents shall promptly distribute to the other Agents and the Lenders, copies of
financial and other information expressly provided to it by any of the Loan
Parties pursuant to this Agreement.
Section 11.7 Indemnification of Agents. Each Liquidity Bank agrees to
indemnify (a) its applicable Co-Agent, (b) the Administrative Agent, and (c) the
officers, directors, employees,
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representatives and agents of each of the foregoing (to the extent not
reimbursed by the Loan Parties and without limiting the obligation of the Loan
Parties to do so), ratably in accordance with their respective Loans, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Co-Agent, the Administrative Agent or such
Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Co-Agent or the
Administrative Agent or such Person shall be designated a party thereto) that
may at any time be imposed on, incurred by or asserted against such Co-Agent,
the Administrative Agent or such Person as a result of, or arising out of, or in
any way related to or by reason of, any of the transactions contemplated
hereunder or the execution, delivery or performance of this Agreement or any
other document furnished in connection herewith (but excluding any such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the bad faith, gross
negligence or willful misconduct of such Co-Agent, the Administrative Agent or
such Person as finally determined by a court of competent jurisdiction).
Section 11.8 Agents in their Individual Capacities. Each of the Agents in
its individual capacity and its affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Loan Parties and
their Affiliates as though such Agent were not an Agent hereunder. With respect
to its Loans, if any, pursuant to this Agreement, each of the Agents shall have
the same rights and powers under this Agreement as any Lender and may exercise
the same as though it were not an Agent, and the terms "Lender" and "Lenders"
shall include each of the Agents in their individual capacities.
Section 11.9 Conflict Waivers.
(a) RBC acts, or may in the future act: (i) as administrative agent
for Old Line and certain other Conduits, (ii) as issuing and paying agent for
the Commercial Paper of Old Line and certain other Conduits, (iii) to provide
credit or liquidity enhancement for the timely payment for the Commercial Paper
of Old Line and certain other Conduits and (iv) to provide other services from
time to time for Old Line and certain other Conduits (collectively, the "RBC
Roles"). Without limiting the generality of Sections 11.1 and 11.8, each of the
Administrative Agent and the Lenders hereby acknowledges and consents to any and
all RBC Roles and agrees that in connection with any RBC Role, RBC may take, or
refrain from taking, any action which it, in its discretion, deems appropriate,
including, without limitation, in its role as administrative agent for Old Line
or such other Conduits, the giving of notice to the Liquidity Banks of a
mandatory purchase pursuant to a Liquidity Agreement, and hereby acknowledges
that neither RBC nor any of its Affiliates has any fiduciary duties hereunder to
any Lender (other than Old Line or such other Conduits) arising out of any RBC
Roles.
(b) BTMU acts, or may in the future act: (i) as administrator of
Victory, (ii) to provide credit or liquidity enhancement for the timely payment
for Victory's Commercial Paper and (iii) to provide other services from time to
time for Victory (collectively, the "BTMU Roles"). Without limiting the
generality of Sections 11.1 and 11.8, each of the Agents and Victory hereby
acknowledges and consents to any and all BTMU Roles and agrees that in
connection with any BTMU Role, BTMU may take, or refrain from taking, any action
which it,
42
in its discretion, deems appropriate, including, without limitation, in its role
as administrator of Victory, the giving of notice to the Victory Liquidity Banks
of a mandatory purchase pursuant to the Victory Liquidity Agreement..
Section 11.10 UCC Filings. Each of the Secured Parties hereby expressly
recognizes and agrees that the Administrative Agent may be listed as the
assignee or secured party of record on the various UCC filings required to be
made under the Transaction Documents in order to perfect their respective
interests in the Collateral, that such listing shall be for administrative
convenience only in creating a record or nominee holder to take certain actions
hereunder on behalf of the Secured Parties and that such listing will not affect
in any way the status of the Secured Parties as the true parties in interest
with respect to the Collateral. In addition, such listing shall impose no duties
on the Administrative Agent other than those expressly and specifically
undertaken in accordance with this Article XI.
ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS
Section 12.1 Restrictions on Assignments.
(a) Except to the extent permitted by the Transaction Documents, no
Loan Party may assign its rights, or delegate its duties hereunder or any
interest herein without the prior written consent of each of the Agents.
(b) Each of the Conduits may, at any time, assign all or any portion
of any of its Loans, or sell participations therein, to (i) its Constituent
Liquidity Banks or the Enhancement Providers (or to its Co-Agent for the ratable
benefit of its Constituent Liquidity Banks) or (ii) another multi-seller
commercial paper conduit administered by either Co-Agent which is rated at least
"A-1" by S&P and "P-1" by Xxxxx'x.
(c) In addition to, and not in limitation of, assignments and
participations described in Section 12.1(b):
(i) each of the Lenders may assign all or any portion of its
Loans and, if applicable, its Commitment and Liquidity Commitment, to any
Eligible Assignee with the prior written consent of (A) Borrower and (B) such
Lender's applicable Co-Agent, which consents shall not be unreasonably withheld
or delayed; provided, however, that no such consent shall be required if such
Eligible Assignee is already a Liquidity Bank party to this Agreement or if any
Amortization Event exists and is continuing and the aggregate Liquidity
Commitments, after giving effect to such assignment, would not be reduced solely
because of such assignment;
(ii) each of the Lenders may, without the prior written consent
of Borrower or any of the Agents, sell participations in all or any portion of
their respective rights and obligations in, to and under the Transaction
Documents and the Obligations in accordance with Sections 12.2 and 14.7.
(d) Nothing herein shall limit the ability of either Conduit to grant
a security interest therein to the program collateral agent for such Conduit's
commercial paper program.
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Section 12.2 Rights of Assignees and Participants.
(a) Upon the assignment by a Lender in accordance with Section 1.2(c)
or 12.1(b) or (c), the Eligible Assignee(s) receiving such assignment shall have
all of the rights of such Lender with respect to the Transaction Documents and
the Obligations (or such portion thereof as has been assigned).
(b) In no event will the sale of any participation interest in any
Lender's or any Eligible Assignee's rights under the Transaction Documents or in
the Obligations relieve the seller of such participation interest of its
obligations, if any, hereunder or, if applicable, under the Liquidity Agreement
to which it is a party and such Loan Party shall remain solely responsible for
the performance of its obligations hereunder and thereunder. No participant
shall have any right to restrict the approval of or to approve any amendment,
modification or waiver to the provisions hereof except to the extent any such
amendment, modification or waiver reduces the amount of Advances or the interest
rate or fees payable with respect to such Advances; provided, however, that to
the extent that any Liquidity Funding is deemed to be the sale of a
participation, the foregoing limitation on participants' voting rights shall not
apply to any Liquidity Bank participating in such Liquidity Funding.
Section 12.3 Terms and Evidence of Assignment. Any assignment to any
Eligible Assignee(s) pursuant to Section 1.2(c), 12.1(b) or 12.1(c) shall be
upon such terms and conditions as the assigning Lender and the applicable
Co-Agent, on the one hand, and the Eligible Assignee, on the other, may mutually
agree, and any assignment pursuant to Section 12.1(c) shall be effectuated by
the execution of an Assignment and Acceptance Agreement. Any assignment made in
accordance with the terms of this Article XII shall relieve the assigning Lender
of its obligations, if any, under this Agreement (and, if applicable, the
Liquidity Agreement to which it is a party) to the extent assigned. Following
any such assignment, Schedule A, Schedule 14.2 and other relevant provisions of
this Agreement will be deemed amended or supplemented, as appropriate, without
further action, by the information contained in the applicable Assignment and
Acceptance Agreement.
ARTICLE XIII
SECURITY INTEREST
Section 13.1 Grant of Security Interest. To secure the due and punctual
payment of the Obligations, whether now or hereafter existing, due or to become
due, direct or indirect, or absolute or contingent, including, without
limitation, all Indemnified Amounts, in each case pro rata according to the
respective amounts thereof, Borrower hereby grants to the Administrative Agent,
for the benefit of the Secured Parties, a security interest in, all of
Borrower's right, title and interest, whether now owned and existing or
hereafter arising in and to all of the Receivables, the Related Security, the
Collections and all proceeds of the foregoing (collectively, the "Collateral").
Section 13.2 Termination after Final Payout Date. Each of the Secured
Parties hereby authorizes the Administrative Agent, and the Administrative Agent
hereby agrees, promptly after the Final Payout Date to execute and deliver to
Borrower such UCC termination statements as may be necessary to terminate the
Administrative Agent's security interest in and Lien upon the
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Collateral, all at Borrower's expense. Upon the Final Payout Date, all right,
title and interest of the Administrative Agent and the other Secured Parties in
and to the Collateral shall terminate.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Waivers and Amendments. No amendment or waiver of any
provision of this Agreement nor consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be in writing
and signed by each of the Loan Parties and the Agents, and any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that:
(a) without the prior written consent of all its respective Liquidity
Banks, such Co-Agent will not amend, modify or waive any provision of this
Agreement which would (i) reduce the amount of any principal or interest that is
payable on account of its Group's Loans or delay any scheduled date for payment
thereof; (ii) decrease the Required Reserve, decrease the spread included in any
Interest Rate or change the Servicing Fee; (iii) modify this Section 14.1; or
(iv) modify any yield protection or indemnity provision which expressly inures
to the benefit of assignees or participants of such Co-Agent's Group.
(b) Borrower shall not amend or otherwise modify any other Transaction
Document without the consent of each Agent.
(c) No failure on the part of any Agent, any Affected Party, any
Indemnified Party, Purchaser or any other Secured Party to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law. Any
waiver of this Agreement shall be effective only in the specific instance and
for the specific purpose for which given. Without limiting the foregoing, BTMU,
individually and as a Co-Agent, and Victory's Liquidity Provider and Enhancement
Provider are each hereby authorized by Borrower and Servicer (as Servicer and as
an Originator) at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by BTMU, or to Victory's Liquidity Provider or Enhancement
Provider to or for the credit to the account of Borrower or any Originator, now
or hereafter existing under this Agreement, to of any Agent, any Affected Party,
any Indemnified Party, Purchaser or any other Secured Party, or their respective
successors and assigns.
Section 14.2 Notices. Except as provided in this Section 14.2, all
communications and notices provided for hereunder shall be in writing (including
bank wire, telecopy or electronic facsimile transmission or similar writing) and
shall be given to the other parties hereto at their respective addresses or
telecopy numbers set forth on Schedule 14.2 hereof or at such other address or
telecopy number as such Person may hereafter specify for the purpose of notice
to each of the other parties hereto. Each such notice or other communication
shall be effective (i) if given by telecopy, upon the receipt thereof, (ii) if
given by mail, three (3) Business Days after
45
the time such communication is deposited in the mail with first class postage
prepaid or (iii) if given by any other means, when received at the address
specified below its signature hereto. Borrower hereby authorizes each of the
Co-Agents to effect Advances based on telephonic notices made by any Person whom
such Co-Agent in good faith believes to be acting on behalf of Borrower.
Borrower agrees to deliver promptly to the Co-Agents a written confirmation of
each telephonic notice signed by an authorized officer of Borrower; provided,
however, the absence of such confirmation shall not affect the validity of such
notice. If the written confirmation differs from the action taken by the
Co-Agents, the records of the Co-Agents shall govern absent manifest error.
Section 14.3 Ratable Payments. Except as provided in the next sentence, if
any Lender, whether by setoff or otherwise, has payment made to it with respect
to any portion of the Obligations owing to such Lender (other than payments
received pursuant to Section 10.2 or 10.3) in a greater proportion than that
received by any other Lender entitled to receive a ratable share of such
Obligations, such Lender agrees, promptly upon demand, to purchase for cash
without recourse or warranty a portion of such Obligations held by the other
Lenders so that after such purchase each Lender will hold its ratable proportion
of such Obligations; provided that if all or any portion of such excess amount
is thereafter recovered from such Lender, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest. Notwithstanding the foregoing, if the Liquidity Banks in one of the
Groups decline to extend their Liquidity Termination Date, their Co-Agent will
promptly notify the other Co-Agent and Borrower of such decision, and Borrower
shall have the right to replace the non-extending Group with a new Conduit and
one or more new Liquidity Banks without repaying any portion of the other
Group's Loans at the time of such replacement, and without triggering the
purchase requirements under the preceding sentence.
Section 14.4 Protection of Administrative Agent's Security Interest.
(a) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all instruments and documents, and take all
actions, that may be necessary or desirable, to perfect, protect or more fully
evidence the Administrative Agent's security interest in the Collateral, or to
enable the Administrative Agent or the Lenders to exercise and enforce their
rights and remedies hereunder. At any time after the occurrence and continuation
of an Amortization Event, the Administrative Agent may, or the Administrative
Agent may direct Borrower or the Servicer to, notify the Obligors of
Receivables, at Borrower's expense, of the ownership or security interests of
the Lenders under this Agreement and may also direct that payments of all
amounts due or that become due under any or all Receivables be made directly to
the Administrative Agent or its designee. Borrower or the Servicer (as
applicable) shall, at any Lender's request, withhold the identity of such Lender
in any such notification.
(b) If any Loan Party fails to perform any of its obligations
hereunder, the Administrative Agent or any Lender may (but shall not be required
to) perform, or cause performance of, such obligations, and the Administrative
Agent's or such Lender's reasonable costs and expenses incurred in connection
therewith shall be payable by Borrower as provided in Section 10.3. Each Loan
Party irrevocably authorizes the Administrative Agent at any time and from time
to time in the sole discretion of the Administrative Agent, and appoints the
Administrative Agent as its attorney-in-fact, to act on behalf of such Loan
Party (i) to execute on
46
behalf of Borrower as debtor and to file financing statements necessary or
desirable in the Administrative Agent's sole discretion to perfect and to
maintain the perfection and priority of the interest of the Lenders in the
Receivables and (ii) to file a carbon, photographic or other reproduction of
this Agreement or any financing statement with respect to the Receivables as a
financing statement in such offices as the Administrative Agent in its sole
discretion deems necessary or desirable to perfect and to maintain the
perfection and priority of the Administrative Agent's security interest in the
Collateral, for the benefit of the Secured Parties. This appointment is coupled
with an interest and is irrevocable. Each of the Loan Parties (A) hereby
authorizes the Administrative Agent to file financing statements and other
filing or recording documents with respect to the Receivables and Related
Security (including any amendments thereto, or continuation or termination
statements thereof), without the signature or other authorization of such Loan
Party, in such form and in such offices as the Administrative Agent reasonably
determines appropriate to perfect or maintain the perfection of the security
interest of the Administrative Agent hereunder, (B) acknowledges and agrees that
it is not authorized to, and will not, file financing statements or other filing
or recording documents with respect to the Receivables or Related Security
(including any amendments thereto, or continuation or termination statements
thereof), without the express prior written approval by the Administrative
Agent, consenting to the form and substance of such filing or recording
document, and approves, authorizes and ratifies any filings or recordings made
by or on behalf of the Administrative Agent in connection with the perfection of
the security interests in favor of Borrower or the Administrative Agent.
Section 14.5 Confidentiality.
(a) Each Loan Party and each Lender shall maintain and shall cause
each of its employees and officers to maintain the confidentiality of this
Agreement, the Amended Fee Letters and the other confidential or proprietary
information that are clearly marked as being confidential and/or proprietary
with respect to any Agent or any Conduit and their respective businesses
obtained by it or them in connection with the structuring, negotiating and
execution of the transactions contemplated herein, except that such Loan Party
and such Lender and its officers and employees may disclose such information to
such Loan Party's and such Lender's external accountants and attorneys and as
required by any applicable law or order of any judicial or administrative
proceeding.
(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, any equity provider to
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
any Agent 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
47
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 in writing 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.
Notwithstanding anything to the contrary contained in this Agreement
or any other Transaction Document, each party hereto may disclose to any and all
Persons the tax treatment and tax structure of the transactions entered into
pursuant to this Agreement and the other Transaction Documents other than any
information for which nondisclosure is reasonably necessary in order to comply
with applicable securities laws.
Section 14.6 Bankruptcy Petition; Limitation on Payments. (a) To the
fullest extent permitted by applicable law, each of the Loan Parties, Agents and
Lenders hereby covenants and 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
Conduit, it will not institute against, or join any other Person in instituting
against, such Conduit any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States.
(b) A Conduit shall be required to make payment of the amounts
required to be paid by it pursuant hereto only if the applicable Conduit has
Excess Funds (as defined below). If the applicable Conduit does not have Excess
Funds, the excess of the amount due hereunder over the amount paid shall not
constitute a "claim" (as defined in Section 101(5) of the federal Bankruptcy
Code) against such Conduit until such time as such Conduit has Excess Funds. If
a Conduit does not have sufficient Excess Funds to make any payment due
hereunder, then such Conduit may pay a lesser amount and make additional
payments that in the aggregate equal the amount of the deficiency as soon as
possible thereafter. The term "Excess Funds" means the excess of (A) the
aggregate projected value of the applicable Conduit's assets and other property
(including cash and cash equivalents), over (B) the sum of (i) the sum of all
scheduled payments of principal, interest and other amounts payable on publicly
or privately placed indebtedness of such Conduit for borrowed money, plus (ii)
the sum of all other liabilities, indebtedness and other obligations of such
Conduit for borrowed money or owed to any credit or liquidity provider, together
with all unpaid interest then accrued thereon, plus (iii) all taxes payable by
such Conduit to the Internal Revenue Service, plus (iv) all other indebtedness,
liabilities and obligations of such Conduit then due and payable, but the amount
of any liability, indebtedness or obligation of such Conduit shall not exceed
the projected value of the assets to which recourse for such liability,
indebtedness or obligation is limited. Excess Funds shall be calculated once
each Business Day. Except with respect to (and to the extent of) Excess Funds,
no recourse shall
48
be had for the payment of any amount owing in respect of this Agreement or for
the payment of any fee hereunder or for any other obligation or claim arising
out of or based upon this Agreement, in each case, against any Conduit or any
stockholder, member, employee, officer, director, manager, incorporator or
beneficial owner of any Conduit.
Section 14.7 Limitation of Liability. Except with respect to any claim
arising out of the willful misconduct or gross negligence of any Agent, any
Lender or JH Management Corporation, no claim may be made by any Loan Party or
any other Person against any such Person or any of its respective Affiliates,
directors, officers, employees, attorneys or agents for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement, or any act, omission or event occurring in
connection therewith; and each Loan Party hereby waives, releases, and agrees
not to xxx upon any claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor. The parties agree that
Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company)
shall have no obligation, in its capacity as program administrator for Victory
or otherwise, to take any actions under the Transaction Documents if Deutsche
Bank Trust Company Americas is relieved of its obligations as program
administrator.
Section 14.8 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW (EXCEPT IN THE CASE OF THE OTHER TRANSACTION DOCUMENTS, TO THE
EXTENT OTHERWISE EXPRESSLY STATED THEREIN) AND EXCEPT TO THE EXTENT THAT THE
PERFECTION OF THE OWNERSHIP INTEREST OF BORROWER OR THE SECURITY INTEREST OF THE
ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, IN ANY OF THE
COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
Section 14.9 CONSENT TO JURISDICTION. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT,
AND EACH SUCH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY AGENT OR
ANY LENDER TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY LOAN PARTY AGAINST ANY AGENT
OR ANY LENDER OR ANY AFFILIATE OF ANY AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
49
CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH LOAN PARTY
PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW
YORK.
Section 14.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY LOAN
PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR
THEREUNDER.
Section 14.11 Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document contain the
final and complete integration of all prior expressions by the parties hereto
with respect to the subject matter hereof and shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof
superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns
(including any trustee in bankruptcy). This Agreement shall create and
constitute the continuing obligations of the parties hereto in accordance with
its terms and shall remain in full force and effect until terminated in
accordance with its terms; provided, however, that the rights and remedies with
respect to (i) any breach of any representation and warranty made by any Loan
Party pursuant to Article V, (ii) the indemnification and payment provisions of
Article X, and Sections 2.5(d), 14.5, 14.6 and 14.7 shall be continuing and
shall survive any termination of this Agreement.
(c) Each Liquidity Provider, Enhancement Provider and each other
Affected Party is an express third party beneficiary hereof and of each other
Transaction Document.
Section 14.12 Counterparts; Severability; Section References. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same Agreement. Delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of a signature page to this Agreement. Any provisions of
this Agreement which are 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.
Section 14.13 Consent to Amendment and Restatement of the Receivables
Purchase Agreement. As contemplated in Section 8.1 of the Receivables Sale
Agreement (immediately before giving effect to the amendment and restatement
thereof on the date hereof), each of the Agents hereby consents to the amendment
and restatement of the Receivables Sale Agreement on the date hereof.
50
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
BOSTON SCIENTIFIC FUNDING LLC
By: ________________________
Name: Xxxxx Xxxxx
Title: Treasurer
BOSTON SCIENTIFIC CORPORATION, as Servicer
By: ________________________
Name: Xxxxx Xxxxx
Title: Vice President, Treasurer
[Signature Page to Amended and Restated Credit and Security Agreement]
OLD LINE FUNDING, LLC
BY: ROYAL BANK OF CANADA,
ITS ATTORNEY-IN-FACT
By: ________________________
Name:
Title:
ROYAL BANK OF CANADA,
individually as a Liquidity Bank, as Old Line
Agent and as Administrative Agent
By: ________________________
Name:
Title:
By: ________________________
Name:
Title:
VICTORY RECEIVABLES CORPORATION
By: ________________________
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK BRANCH, as a Liquidity Bank
By: ________________________
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK BRANCH, as Victory Agent
By: ________________________
Name:
Title:
[Signature Page to Amended and Restated Credit and Security Agreement]
EXHIBIT I
DEFINITIONS
A. Definitions. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Adjusted Dilution Ratio" means, at any time, the rolling average of
the Dilution Ratio for the 12 months then most recently ended.
"Administrative Agent" has the meaning set forth in the preamble to
this Agreement.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made on the same Borrowing Date.
"Adverse Claim" means a Lien or other right or claim in, of or on any
Person's assets or properties in favor of any other Person.
"Affected Party" means each of the Lenders, the Agents, the Conduits'
respective Funding Sources, any sub-agent to any of the Agents and any Affiliate
of any of the foregoing.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or any Subsidiary of such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agents" means the Administrative Agent and Co-Agents.
"Aggregate Commitment" means, on any date of determination, the
aggregate amount of the Commitments to make Loans hereunder. As of the
Effectiveness Date, the Aggregate Commitment is $350,000,000.
"Aggregate Principal" means, on any date of determination, the
aggregate outstanding principal amount of all Advances outstanding on such date.
"Agreement" means this Amended and Restated Credit and Security
Agreement, as it may be amended or modified and in effect from time to time.
"Allocation Limit" means the Old Line Allocation Limit, the Victory
Allocation Limit or any other Allocation Limit specified in an Assignment and
Acceptance Agreement, as the case may be.
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"Alternate Base Rate" means, for any Group, for any day, the rate per
annum equal to the higher as of such day of (i) the applicable Prime Rate, or
(ii) one-half of one percent (0.50%) above the Federal Funds Effective Rate. For
purposes of determining the Alternate Base Rate for any day, changes in the
Prime Rate or the Federal Funds Effective Rate shall be effective on the date of
each such change.
"Alternate Base Rate Loan" means a Loan which bears interest at the
Alternate Base Rate or the Default Rate.
"Amended Fee Letters" means the Old Line Fee Letter, the Victory Fee
Letter and any other fee letter entered into among BSX, the Borrower, any
Lender(s) and their Co-Agent in connection with this Agreement.
"Amortization Date" means the earliest to occur of (i) the Business
Day immediately prior to the occurrence of an Event of Bankruptcy with respect
to any Loan Party, (ii) the Business Day specified in a written notice from the
Administrative Agent following the occurrence and during the continuance of any
other Amortization Event, and (iii) the date which is 15 Business Days after the
Administrative Agent's receipt of written notice from Borrower that it wishes to
terminate the facility evidenced by this Agreement.
"Amortization Event" has the meaning specified in Article IX.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Assignment and Acceptance Agreement" means an assignment and
acceptance agreement in the form of Exhibit XI hereto (with such changes as may
be appropriate under the specific circumstances) executed and delivered in
accordance with Section 12.3.
"Authorized Officer" means, with respect to any Loan Party, its
president, vice president, corporate controller, treasurer or chief financial
officer.
"Borrower" has the meaning set forth in the preamble to this
Agreement.
"Borrowing Base" means, on any date of determination, the Net Pool
Balance as of the last day of the period covered by the most recent Monthly
Report, minus the Required Reserve as of the last day of the period covered by
the most recent Monthly Report, and minus Dilution that have occurred since the
most recent Cut-Off Date to the extent that such Dilution exceeds the Dilution
Reserve; provided, however, that if the Borrowing Base is computed at the
request of a Co-Agent and delivered to the Agents on a day other than a Monthly
Report Date, then the data used in such computation shall be the most current
data available to the Servicer.
"Borrowing Date" means a Business Day on which an Advance is made
hereunder.
"Borrowing Request" has the meaning set forth in Section 2.1.
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"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.
"BSX" has the meaning set forth in the preamble to this Agreement.
"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., Deutsche
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 RBC are still party thereto as lenders.
"BTMU" means The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch,
and its successors.
"Business Day" means any day on which banks are not authorized or
required to close in New York, New York, and The Depository Trust Company of New
York is open for business, and, if the applicable Business Day relates to any
computation or payment to be made with respect to LIBOR, any day on which
dealings in dollar deposits are carried on in the London interbank market.
"Calculation Period" means a calendar month.
"Change of Control" means (i) any Person or "group" (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) (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 Servicer (other
than Xxxxx X. Xxxxxxxx and Xxxx X. Xxxxx or any of their affiliated holdings) or
(B) shall obtain the power (whether or not exercised) to elect a majority of
BSX's directors; (ii) the Board of Directors of BSX shall not consist of a
majority of Continuing Directors; or (iii) BSX shall cease to own 100% of the
outstanding capital stock of the Borrower.
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"Co-Agents' means the Co-Agents specified in the preamble to this
Agreement and any Person who becomes a Co-Agent party to this Agreement pursuant
to an Assignment and Acceptance Agreement.
"Code" means the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Collateral" has the meaning set forth in Section 13.1.
"Collection Account" means each concentration account, depositary
account, lock box account or similar account in which any Collections are
collected or deposited and which is listed on Exhibit IV.
"Collection Account Agreement" means an agreement substantially in the
form of Exhibit VI among BSX, Borrower, the Administrative Agent and a
Collection Bank.
"Collection Bank" means, at any time, any of the banks holding one or
more Collection Accounts.
"Collection Notice" means a notice, in substantially the form of Annex
A to Exhibit VI, from the Administrative Agent to a Collection Bank.
"Collections" means, with respect to any Receivable, all funds which
are received from or on behalf of any related Obligor in payment of any amounts
owed (including, without limitation, purchase prices, finance charges, interest
and all other charges) in respect of such Receivable, or applied to such amounts
owed by such Obligor (including, without limitation, payments that the Buyer,
the applicable Seller or the Servicer receives from third party payors and
applies in the ordinary course of its business to amounts owed in respect of
such Receivable and net proceeds of sale or other disposition of repossessed
goods or other collateral or property of the Obligor or any other party directly
or indirectly liable for payment of such Receivable and available to be applied
thereon).
"Commercial Paper" means promissory notes of a Conduit issued by such
Conduit in the commercial paper market.
"Commitment" means, as of any date of determination, for each
Committed Lender, its commitment to make Loans to Borrower hereunder in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Committed Lender's name under the heading "Commitment"
on Schedule A to this Agreement (as such Schedule A is amended from time to
time).
"Commitment Reduction Notice" has the meaning specified in Section
1.6.
"Committed Lender" means (a) Victory, (b) each of the Victory
Liquidity Banks, (c) each of the Old Line Liquidity Banks and (d) each Committed
Lender specified in an Assignment and Acceptance Agreement.
I-4
"Conduits" means the Conduits specified in the preamble to this
Agreement and any bankruptcy-remote commercial paper entity which becomes a
party to this Agreement in accordance with the terms of Sections 12.1 and 12.3
hereof.
"Constituent" means, (a) as to the Old Line Agent, any member of the
Old Line Group from time to time party hereto, (b) as to the Victory Agent, any
member of the Victory Group from time to time a party hereto and (c) as to any
other Agent, any member of its related Group from time to time a party hereto,
and when used as an adjective, "Constituent" shall have a correlative meaning.
"Continuing Directors" means the directors of BSX on the date of this
Agreement and each other director, if such other director's nomination for
election to the Board of Directors of BSX is recommended by a majority of the
then Continuing Directors.
"CP Costs" means for any Conduit's CP Rate Loans and any CP Tranche
Period (or portion thereof), an amount equal to the sum of, for each day in such
CP Tranche Period (or portion thereof), the product of (a) the outstanding
principal balance of the CP Rate Loans of such Conduit on such day, (b) the CP
Rate for such Conduit on such day and (c) a fraction of the numerator of which
is one (1) and the denominator of which is 360.
"CP Rate" means, with respect to any Conduit on any day, the rate
equivalent to the weighted average of the interest rates payable by such Conduit
in respect of its Commercial Paper outstanding on such day that is allocated, in
whole or in part, to fund or maintain its CP Rate Loans on such day, converted
(as necessary) to an annual yield equivalent rate calculated on the basis of a
360-day year, which rates shall include issuing and paying agent fees and any
placement agent or commercial paper fees and commissions.
"CP Rate Loan" means a Loan made by any Conduit which bears interest
at a CP Rate.
"CP Tranche Period" means, with respect to any Conduit, a Calculation
Period.
"Credit and Collection Policy" means Borrower's credit and collection
policies and practices relating to Contracts and Receivables existing on the
date hereof and summarized in Exhibit VIII hereto, as modified from time to time
in accordance with this Agreement.
"Cut-Off Date" means the last day of a Calculation Period.
"Days Sales Outstanding" means, as of any day, an amount equal to the
product of (x) 91, multiplied by (y) the amount obtained by dividing (i) the
aggregate outstanding balance of Receivables as of the most recent Cut-Off Date,
by (ii) the aggregate amount of Receivables created during the three (3)
Calculation Periods including and immediately preceding such Cut-Off Date.
"Deemed Collections" means Collections deemed received by Borrower
under Section 3.4(a).
I-5
"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 nine months ending on such Cut-Off Date, by (ii)
the Net Pool Balance as of such Cut-off Date.
"Default Rate" means a rate per annum equal to the sum of (i) the
applicable Alternate Base Rate plus (ii) 2.00%, changing when and as the
Alternate Base Rate changes.
"Default Ratio" means, as of any Cut-Off Date, the ratio (expressed as
a percentage) computed by dividing (x) the total amount of Receivables which
became Defaulted Receivables during the month that includes such Cut-Off Date,
by (y) the aggregate sales generated by the Originators during the month
occurring nine 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) as to which any payment, or
part thereof, remains unpaid for less than 241 days from the original due date
for such payment and (x) which has been written off as uncollectible or (y)
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 241 days or more from the original due date for such payment.
"Delinquent Receivable" means a Receivable as to which any payment, or
part thereof, remains unpaid for 211-240 days from the original due date for
such payment.
"Demand Advance" means an advance made by Borrower to BSX at any time
while BSX or any of its Affiliates is acting as the Servicer on any day prior to
the Facility Termination Date on which no Amortization Event or Unmatured
Amortization Event exists and is continuing, which advance (a) is payable upon
demand, (b) is not evidenced by an instrument, chattel paper or a certificated
security (unless such instrument, chattel paper or certificated security is
pledged and delivered to the Administrative Agent, together with all necessary
indorsements), (c) bears interest at a market rate determined by Borrower and
the Servicer from time to time, (d) is not subordinated to any other
Indebtedness or obligation of the Servicer, and (e) may not be offset by BSX
against amounts due and owing from Borrower to it under its Subordinated Note.
"Dilution" means the amount of any reduction or cancellation of the
Outstanding Balance of a Receivable as described in Section 3.4(a).
"Dilution Horizon Ratio" means, as of any Cut-off Date, a ratio
(expressed as a decimal), computed by dividing (i) the aggregate sales generated
by the Originators during the month ending on such Cut-Off Date, by (ii) the Net
Pool Balance as of such Cut-Off Date.
"Dilution Ratio" means, as of any Cut-Off Date, a ratio (expressed as
a percentage), computed by dividing (i) the total amount of decreases in
outstanding principal balances of the Receivables due to Dilutions during the
month ending on such Cut-Off Date, by (ii) the aggregate sales generated by the
Originators during the month prior to the current month ending on such Cut-Off
Date.
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"Dilution Reserve" means, for any month, the product (expressed as a
percentage) of: (a) the sum of (i) 2 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.
"Dilution Volatility Component" means the product (expressed as a
percentage) of (i) the difference between (a) the highest three (3)-month
rolling average Dilution Ratio over the past 12 months and (b) the Adjusted
Dilution Ratio, and (ii) a fraction, the numerator of which is equal to the
amount calculated in (i)(a) of this definition and the denominator of which is
equal to the amount calculated in (i)(b) of this definition.
"Domestic Person" means a Person who if a natural person, is a
resident of the United States or, if a corporation or other business
organization, is organized under the laws of the United States or any political
subdivision thereof and has its chief executive office in the United States.
"Effectiveness Date" means the date on which all conditions specified
in Section 5.3 of this Agreement are satisfied.
"Eligible Assignee" means:
(i) for any Conduit, any bankruptcy-remote commercial paper conduit
sponsored or administered by a Co-Agent whose Commercial Paper is rated at
least "A-1" by S&P and "P-1" by Moody's,
(ii) any Liquidity Bank, or
(iii) for any Lender, any commercial bank having a combined capital
and surplus of at least $250,000,000 with a rating of its (or its parent
holding company's) short-term securities equal to or higher than (A) "A-1"
by S&P and (B) "P-1" by Moody's.
"Eligible Originator" means (a) BSX, and (b) any wholly-owned domestic
Subsidiary of BSX that is approved by each of the Co-Agents in accordance with
Section 1.9.
"Eligible Receivable" means, at any time, a Receivable:
(a) the Obligor of which is (i) a Domestic Person, (ii) is not an
Affiliate of any of the parties hereto; and (iii) is not a federal
government or a federal governmental subdivision or agency; provided,
however, that up to 2% of Eligible Receivables may consist of otherwise
Eligible Receivables the Obligor of which is a federal government or a
federal governmental subdivision or agency,
(b) which is not owing from an Obligor as to which more than 35% of
the aggregate outstanding principal balance of all Receivables owing from
such Obligor are Defaulted Receivables,
I-7
(c) which is not a Defaulted Receivable,
(d) which by its terms is due and payable within 30 days of the
original billing date therefor and has not had its payment terms extended
more than once; provided, however, that up to 1% of Eligible Receivables
may consist of otherwise Eligible Receivables which by their terms are due
and payable within 31-60 days of the original billing date therefor and
have not had their payment terms extended more than once,
(e) which is an "Account" and is not a "Health-care-insurance
receivable," in each case, within the meaning of Article 9 of the UCC of
all applicable jurisdictions,
(f) which is denominated and payable only in United States dollars in
the United States,
(g) which arises under a Contract which, together with such
Receivable, is in full force and effect and constitutes the legal, valid
and binding obligation of the related Obligor enforceable against such
Obligor in accordance with its terms,
(h) which arises under a Contract which (A) does not require the
Obligor under such Contract to consent to the transfer, sale, pledge or
assignment of the rights and duties of the applicable Originator or any of
its assignees under such Contract and (B) does not contain a
confidentiality provision that purports to restrict the ability of the
Administrative Agent to exercise its rights under this Agreement including,
without limitation, its right to review the Contract,
(i) which arises under a Contract that contains an obligation to pay a
specified sum of money, contingent only upon the sale of goods or the
provision of services by the applicable Originator,
(j) which, together with the Contract related thereto, does not
contravene any law, rule or regulation applicable thereto (including,
without limitation, any law, rule and regulation relating to usury, truth
in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy) and with respect
to which no part of the Contract related thereto is in violation of any
such law, rule or regulation,
(k) which satisfies all applicable requirements of the applicable
Originator's Credit and Collection Policy,
(l) which was generated by an Eligible Originator in the ordinary
course of its business,
(m) which arises solely from the sale of goods or the provision of
services to the related Obligor by the applicable Originator, and not by
any other Person (in whole or in part),
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(n) as to which none of the Agents has notified Borrower that such
Agent has determined in the exercise of its commercially reasonable credit
judgment that such Receivable or class of Receivables is not acceptable as
an Eligible Receivable, including, without limitation, because such
Receivable arises under a Contract that is not acceptable to such Agent,
(o) which is not subject to any dispute, counterclaim, right of
rescission, set-off, counterclaim or any other defense (including defenses
arising out of violations of usury laws) of the applicable Obligor against
the applicable Originator or any other Adverse Claim, and the Obligor
thereon holds no right as against such Originator to cause such Originator
to repurchase the goods or merchandise the sale of which shall have given
rise to such Receivable (except with respect to sale discounts effected
pursuant to the Contract, or defective goods returned in accordance with
the terms of the Contract); provided, however, that if such dispute,
offset, counterclaim or defense affects only a portion of the outstanding
principal balance of such Receivable, then such Receivable may be deemed an
Eligible Receivable to the extent of the portion of such outstanding
principal balance which is not so affected, and provided, further, that
Receivables of any Obligor which has any accounts payable by the applicable
Originator or by a wholly-owned subsidiary of such Originator (thus giving
rise to a potential offset against such Receivables) may be treated as
Eligible Receivables to the extent that the Obligor of such Receivables has
agreed pursuant to a written agreement in form and substance satisfactory
to the Administrative Agent, that such Receivables shall not be subject to
such offset,
(p) as to which the applicable Originator has satisfied and fully
performed all obligations on its part with respect to such Receivable
required to be fulfilled by it, and no further action is required to be
performed by any Person with respect thereto other than payment thereon by
the applicable Obligor and no portion of which is in respect of any amount
as to which the related Obligor is permitted to withhold payment until the
occurrence of a specified event or condition (including "guaranteed" sales
or any performance by any other Persons),
(q) as to which each of the representations and warranties contained
in Sections 6.1(n), (o) and (r) is true and correct, and
(r) all right, title and interest to and in which was validly
transferred by an Originator to Borrower under and in accordance with the
Receivables Sale Agreement free and clear of any Adverse Claim except as
created hereunder.
"Eligible Receivables Balance" means, at any time, the aggregate
Outstanding Balance of all Eligible Receivables at such time.
"Enhancement Agreement" means any agreement between a Conduit and any
other Person(s), entered into to provide credit enhancement to such Conduit's
commercial paper facility.
I-9
"Enhancement Provider" means any Person providing credit support to a
Conduit under an Enhancement Agreement, including pursuant to an unfunded
commitment.
"Event of Bankruptcy" shall be deemed to have occurred with respect to
a Person if either:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up, or
composition or readjustment of debts of such Person, the appointment of a
trustee, receiver, custodian, liquidator, assignee, sequestrator or the
like for such Person or all or substantially all of its assets, or any
similar action with respect to such Person under any law relating to
bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of 60 consecutive
days; or an order for relief in respect of such Person shall be entered in
an involuntary case under the federal bankruptcy laws or other similar laws
now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization, debt
arrangement, dissolution or other similar law now or hereafter in effect,
or shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee (other than a trustee under a deed of trust,
indenture or similar instrument), custodian, sequestrator (or other similar
official) for, such Person or for any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall be
adjudicated insolvent, or admit in writing its inability to pay its debts
generally as they become due, or, if a corporation or similar entity, its
board of directors shall vote to implement any of the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" means, with respect to a Indemnified Party, Taxes
which are (a) both (i) imposed by the jurisdiction in which such Indemnified
Party is organized or by any other taxing authority of a United States
jurisdiction as a result of such Indemnified Party doing business or maintaining
an office in such jurisdiction (other than any such taxes that the Indemnified
Party establishes would not have been imposed but for (A) such Indemnified Party
having executed, or enforced, a Transaction Document or (B) any of the
transactions contemplated herein or in the other Transaction Documents) and also
(ii) imposed on, based on or measured by net pre-tax income, capital or net
worth of such Indemnified Party (other than Taxes that are, or are in the nature
of, sales, use, rental, property or value added or similar taxes) or (b) any
Tax, assignment or other governmental charge attributable to and which would not
have been imposed but for the failure of a Indemnified Party to deliver to
Borrower the Prescribed Forms properly completed and duly executed by such
Indemnified Party establishing such party's exemption from, or eligibility for,
a reduced rate of any such tax or assessment.
I-10
"Facility Termination Date" means the earliest of (i) the Scheduled
Termination Date, (ii) the occurrence of any Conduit's Liquidity Termination
Date, and (iii) the Amortization Date.
"Federal Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy," as amended and any successor statute thereto.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum for each day during such period equal to (a) 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 for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York in the Composite Closing
Quotations for U.S. Government Securities; or (b) if such rate is not so
published for any day which is a Business Day, the average of the quotations at
approximately 11:30 a.m. (New York time) for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Final Payout Date" means the date on which all Obligations have been
indefeasibly paid in full and the Aggregate Commitment has been terminated.
"Finance Charges" means, with respect to a Contract, any finance,
interest, late payment charges or similar charges owing by an Obligor pursuant
to such Contract.
"Financing Lease" means 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.
"Funding Agreement" means (i) this Agreement, (ii) the Liquidity
Agreements, and (iii) any other agreement or instrument executed by any Funding
Source with or for the benefit of any Conduit.
"Funding Source" means (i) any Liquidity Bank, (ii) any Enhancement
Provider or (iii) any insurance company, bank or other funding entity providing
liquidity, credit enhancement or back-up purchase support or facilities to any
Conduit.
"Group" means the Old Line Group, the Victory Group, or any other
Group specified in an Assignment and Acceptance Agreement as the case may be.
"Indebtedness" means, of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of such Person's
business and payable in accordance with customary practices and earn-outs and
other similar obligations in respect of acquisition and other similar
agreements), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all capital lease obligations of
such Person,
I-11
(f) all obligations of such Person, contingent or otherwise, as an account party
or applicant under or in respect of acceptances, letters of credit, surety bonds
or similar arrangements, (g) the liquidation value of all redeemable preferred
Equity Interests of such Person, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (g) above,
(i) all obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including
accounts and contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such obligation, and (j) net
liabilities under interest rate swap, exchange or cap agreements. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness expressly provide that such Person is not liable
therefor.
"Indemnified Party" has the meaning set forth in Section 10.1.
"Independent Director" shall mean a member of the Board of Directors
of Borrower who is not at such time, and has not been at any time during the
preceding five (5) years: (A) a director, officer, employee or affiliate of any
Originator or any of their respective Subsidiaries or Affiliates (other than
Borrower), or (B) the beneficial owner (at the time of such individual's
appointment as an Independent Director or at any time thereafter while serving
as an Independent Director) of any of the outstanding common shares of Borrower,
any Originator, or any of their respective Subsidiaries or Affiliates, having
general voting rights.
"Initial Closing Date" means the date on which the initial Advance was
made under the Original Agreement.
"Interest" means for any Lender's LIBOR Loans or Alternate Base Rate
Loans and any Settlement Period (or portion thereof), an amount equal to the sum
of the following amounts calculated for each day in such Settlement Period (or
portion thereof):
(a) with respect to the LIBOR Loans, the product of, for each LIBOR
Loan of such Lender (i) the outstanding principal balance of such LIBOR
Loan on such day, (ii) the applicable Interest Rate for such LIBOR Loan on
such day and (iii) a fraction the numerator of which is one (1) and the
denominator of which is 360; and
(b) with respect to the Alternate Base Rate Loans, the product of
(i) the outstanding principal balance on such Alternate Base Rate Loans on
such date, (ii) the applicable Alternate Base Rate (or if the Default Rate
shall be in effect, the Default Rate) on such day and (iii) a fraction the
numerator of which is one (1) and the denominator of which is 365 or 366,
as applicable.
"Interest Period" means, with respect to any LIBOR Loan, a period of
one, two, three or six months, or such other period as may be mutually agreeable
to the applicable Co-Agent and Borrower, commencing on a Business Day selected
by the applicable Lender. Such Interest Period shall end on the day in the
applicable succeeding calendar month which
1-12
corresponds numerically to the beginning day of such Interest Period, provided,
however, that if there is no such numerically corresponding day in such
succeeding month, such Interest Period shall end on the last Business Day of
such succeeding month. If any Interest Period would end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding Business
Day, provided, however, that if such next succeeding Business Day falls in a new
month, such Interest Period shall end on the immediately preceding Business Day.
In the case of any Interest Period for any Loan which commences before the
Amortization Date and would otherwise end on a date occurring after the
Amortization Date, such Interest Period shall end on the Amortization Date. The
duration of each Interest Period which commences after the Amortization Date
shall be of such duration as selected by the applicable Lender.
"Interest Rate" means, with respect to each LIBOR Loan or Alternate
Base Rate Loan, the applicable LIBOR, Alternate Base Rate or Default Rate.
"Interest Reserve" means, for any Calculation Period, the product
(expressed as a percentage) of (i) 1.5 times (ii) the Alternate Base Rate as of
the immediately preceding Cut-Off Date times (iii) a fraction the numerator of
which is the highest Days Sales Outstanding for the most recent 12 Calculation
Periods and the denominator of which is 360.
"Lenders" means, collectively, Old Line, Victory, the Old Line
Liquidity Banks, the Victory Liquidity Banks and their respective successors and
permitted assigns.
"LIBOR" means, for any LIBOR Loan and any Interest Period:
(a) For members of the Old Line Group, (i) the rate per annum
determined on the basis of the offered rate for deposits in U.S. dollars of
amounts equal or comparable to the principal amount of such LIBOR Loan
offered for a term comparable to such Interest Period, which rates appear
on Reuters Screen LIBOR 01 Page (or any successor or substitute page of
such service, providing rate quotations comparable to those currently
reported on such page of such service) effective as of 11:00 A.M., London
time, two Business Days prior to the first day of such Interest Period,
provided that if no such offered rates appear on such page, LIBOR for such
LIBOR Loan and such Interest Period will be the arithmetic average (rounded
upwards, if necessary, to the next higher 1/100th of 1%) of rates quoted by
not less than two major banks in New York, New York, selected by the
Administrative Agent, at approximately 10:00 a.m.(New York time), two
Business Days prior to the first day of such Interest Period, for deposits
in U.S. dollars offered by leading European banks for a period comparable
to such Interest Period in an amount comparable to the principal amount of
such LIBOR Loan, divided by (ii) one minus the maximum aggregate reserve
requirement (including all basic, supplemental, marginal or other
reserves), if any, which is imposed against RBC in respect of Eurocurrency
liabilities, as defined in Regulation D of the Board of Governors of the
Federal Reserve System as in effect from time to time (expressed as a
decimal), applicable to such Interest Period plus (iii) the Applicable
Margin, as defined in the BSX Credit Agreement;
I-13
(b) For members of the Victory Group (i) either (A) the interest rate
per annum designated as The Bank of Tokyo-Mitsubishi UFJ LIBO Rate for a
period of time comparable to such Interest Period that appears on the
Reuters Screen LIBO Page as of 11:00 a.m. (London time) on the second
Business Day preceding the first day of such Interest Period for such LIBOR
Loan or (B) if a rate cannot be determined under clause (i)(A), an annual
rate equal to the average (rounded upwards if necessary to the nearest
1/100th of 1%) of the rates per annum at which deposits in Dollars with a
duration equal to such Interest Period in a principal amount substantially
equal to such LIBOR Loan are offered to the principal London office of The
Bank of Tokyo-Mitsubishi UFJ, Ltd. by three London banks, selected by the
Victory Agent, at about 11:00 a.m. London time on the second Business Day
preceding the first day of such Interest Period, plus (ii) the Applicable
Margin, as defined in the BSX Credit Agreement; and
(c) For members of any other Group, the rate specified in the
applicable Assignment and Acceptance Agreement.
"LIBOR Loan" means a Loan which bears interest at LIBOR.
"Lien" means 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).
"Liquidity Agreements" means, collectively, the Old Line Liquidity
Agreement, the Victory Liquidity Agreement or the Liquidity Agreement of any
other Group as specified in the applicable Assignment and Acceptance Agreement.
"Liquidity Bank" means:
(a) with respect to Old Line , (i) RBC or (ii) any Eligible Assignee
of RBC's Commitment and Liquidity Commitment,
(b) with respect to Victory, (i) BTMU or (ii) any Eligible Assignee of
BTMU's Commitment and/or Liquidity Commitment,
(c) with respect to any other Conduit, the financial institution
specified in the Assignment and Acceptance Agreement pursuant to which such
Conduit becomes a party to this Agreement,
in each of the foregoing cases, to which Borrower has consented if required
under Section 12.1. A Liquidity Bank will become a "Lender" hereunder at such
time as it makes any Liquidity Funding.
"Liquidity Commitment" means, as to each Liquidity Bank, its
commitment under its respective Liquidity Agreement.
I-14
"Liquidity Funding" means (a) a purchase made by any Liquidity Bank
pursuant to its Liquidity Commitment of all or any portion of, or any undivided
interest in (or a loan made by any Liquidity Bank pursuant to its Liquidity
Commitment in the amount equal to) a Loan of its applicable Conduit, or (b) any
Loan made by the applicable Liquidity Banks in lieu of a Conduit pursuant to
Section 1.1 or, (c) any Loan made by a Conduit pursuant to its applicable
Enhancement Agreement.
"Liquidity Termination Date" means, for any Group, August 6, 2008,
(unless such date is extended from time to time in the sole discretion of the
Liquidity Bank in such Group).
"Loan" means any loan made by a Lender to Borrower pursuant to this
Agreement (including, without limitation, any Liquidity Funding). Each Loan
shall either be a CP Rate Loan, an Alternate Base Rate Loan or a LIBOR Loan.
"Loan Parties" means (a) the Borrower, and (b) at any time it is
acting as Servicer, BSX.
"Lockbox" means each locked postal box with respect to which a bank
who has executed a Collection Account Agreement has been granted exclusive
access for the purpose of retrieving and processing payments made on the
Receivables and which is listed on Exhibit IV.
"Loss Reserve" means, for any month, the product (expressed as a
percentage) of (a) 2.0, times (b) the highest three-month rolling average
Default Ratio during the 12 months ending on the immediately preceding Cut-Off
Date, times (c) the Default Horizon Ratio as of the immediately preceding
Cut-Off Date.
"Material Adverse Effect" means a material adverse effect on (i) the
financial condition or operations of (a) Servicer and its subsidiaries taken as
a whole, or (b) the Borrower, (ii) the ability of any Loan Party to perform its
obligations under this Agreement, (iii) the legality, validity or enforceability
of this Agreement any other Transaction Document, (iv) the Administrative
Agent's security interest in the Receivables generally or in any material
portion of the Receivables or the proceeds thereof, or (v) the collectibility of
the Receivables generally or of any material portion of the Receivables.
"Material Proposed Addition" means a Person whom any Loan Party
proposes to add as a "seller" under the Receivables Sale Agreement if either (i)
the aggregate Outstanding Balance of such Person's receivables (on the proposal
date) exceeds 10% of the weighted average Borrowing Base in effect on the
proposal date, or (ii) the Outstanding Balance of such Person's receivables (on
such proposal date), when aggregated with the receivables of all other Persons
added as "sellers" under the Receivables Sale Agreement in the same calendar
year (measured on the respective dates such other Persons became "sellers" under
the Receivables Sale Agreement) exceeds 10% of the weighted average Borrowing
Base in effect during such calendar year.
"Material Subsidiary" means any Subsidiary of BSX whose assets or
income exceed(s) 5% of consolidated total assets or consolidated net income of
BSX and its Subsidiaries, in each case, determined in accordance with GAAP.
I-15
"Monthly Report" means a report, in substantially the form of Exhibit
IX hereto (appropriately completed), furnished by the Servicer to the
Administrative Agent pursuant to Section 8.5.
"Monthly Reporting Date" means the 15th day of each calendar month
after the date of this Agreement (or if any such day is not a Business Day, the
next succeeding Business Day thereafter) or such other days of each calendar
month as the Administrative Agent shall request in connection with Section 8.5
hereof.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Pool Balance" means, at any time, the Eligible Receivables
Balance reduced by the aggregate amount by which the Outstanding Balance of all
Eligible Receivables of each Obligor and its Affiliates exceeds the Obligor
Concentration Limit for such Obligor.
"Net Worth" means as of the last Business Day of each Calculation
Period preceding any date of determination, the excess, if any, of (a) the
aggregate Outstanding Balance of the Receivables at such time plus the
outstanding amount of Demand Advances plus the amount of cash held by the
Borrower, over (b) the sum of (i) the Aggregate Principal outstanding at such
time, plus (ii) the aggregate outstanding principal balance of the Subordinated
Loans (including any Subordinated Loan proposed to be made on the date of
determination).
"Obligations" means, at any time, any and all obligations or
undertakings of or participation in any of the Loan Parties to any of the
Secured Parties arising under or in connection with the Transaction Documents,
whether now existing or hereafter arising, due or accrued, absolute or
contingent, including, without limitation, obligations in respect of Aggregate
Principal, CP Costs, Interest, fees under the Amended Fee Letters, Broken
Funding Costs and Indemnified Amounts. "Obligor" means a Person obligated to
make payments pursuant to a Contract.
"Obligor Concentration Limit" means, at any time, in relation to the
aggregate outstanding principal balance of Receivables owed by any single
obligor and its affiliates (if any), the applicable concentration limit for
obligors who have short term unsecured debt ratings currently assigned to them
by S&P and Moody's (or in the absence thereof, the equivalent long term
unsecured senior debt ratings), determined according to the following table:
-------------------------- --------------------------- -------------------------
Allowable % of Eligible
S&P Rating Xxxxx'x Rating Receivables
-------------------------- --------------------------- -------------------------
A-1+ P-1 10%
-------------------------- --------------------------- -------------------------
A-1 P-1 8%
-------------------------- --------------------------- -------------------------
A-2 P-2 5%
-------------------------- --------------------------- -------------------------
A-3 P-3 3%
-------------------------- --------------------------- -------------------------
Below A-3 or Not Rated by Below P-3 or Not Rated by
either S&P or Moody's either S&P or Moody's 2%
-------------------------- --------------------------- -------------------------
I-16
; provided, however, that (a) if any obligor has a split rating, the applicable
rating will be the lower of the two, (b) if any obligor is not rated by either
S&P or Moody's, the applicable Obligor Concentration Limit shall be the one set
forth in the last line of the table above, and (c) subject to rating agency
approval and/or an increase in the Required Reserve Factor Floor, upon
Borrower's request from time to time, the Co-Agents may agree to a higher
percentage of Eligible Receivables for a particular obligor and its affiliates
(each such higher percentage, a "Special Concentration Limit"), it being
understood that any Special Concentration Limit may be cancelled by either
Co-Agent upon not less than five (5) Business Days' written notice to Borrower
(and, if such notice is given by only one of the Co-Agents, with a copy to the
other Co-Agent). On the date of this Agreement, subject to its right to cancel
same, each Co-Agent hereby agrees to a Special Concentration Limit of 4% for
HCA, Inc.
"Old Line " has the meaning set forth in the preamble to this
Agreement.
"Old Line Agent" has the meaning provided in the preamble to this
Agreement.
"Old Line Allocation Limit" has the meaning set forth in Section
1.1(a).
"Old Line Fee Letter" means that certain Old Line Fee Letter, dated as
of November 20, 2007, by and among BSX, Borrower, Old Line, the Old Line Agent,
RBC and the Administrative Agent, as the same may be amended, restated or
otherwise modified from time to time.
"Old Line Group" has the meaning provided in the preamble to this
Agreement.
"Old Line Liquidity Agreement" means, as applicable, (i) the Liquidity
Asset Purchase Agreement, dated as of November 20, 2007, among Old Line, the Old
Line Agent, and the Liquidity Banks from time to time party thereto and/or
(ii) the Liquidity Loan Agreement, dated as of November 20, 2007, among Old
Line, the Old Line Agent and the Liquidity Banks from time to time party thereto
as either of the same may be amended, restated, supplemented, replaced or
otherwise modified from time to time.
"Old Line Liquidity Bank" means any Liquidity Bank that enters into
this Agreement or an Old Line Liquidity Agreement.
"Organic Document" means, relative to any Person, its certificate of
incorporation, its by-laws, its partnership agreement, its memorandum and
articles of association, its limited liability company agreement and/or
operating agreement, share designations or similar organization documents and
all shareholder agreements, voting trusts and similar arrangements applicable to
any of its authorized Equity Interests.
"Originator" means (a) BSX in its capacity as a seller under the
Receivables Sale Agreement, and (b) each of BSX's domestic wholly-owned
Subsidiaries that hereafter becomes a seller under the Receivables Sale
Agreement by executing a Joinder Agreement in accordance with the terms thereof.
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
I-17
"Past Due Ratio" means, on any date of determination, a percentage
equal to (i) the sum of (a) the aggregate Outstanding Balance of all Delinquent
Receivables as of the last date of the Calculation Period then most recently
ended, plus (b) the aggregate Outstanding Balance of all Receivables that became
Defaulted Receivables during the Calculation Period then most recently ended,
divided by (ii) the average of the aggregate initial Outstanding Balances of all
Receivables generated during the Collection Periods ended eight and nine
Calculation Periods prior to the date of determination.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Percentage" means, for each Group on any date of determination, the
ratio which the sum of the Commitments for all Liquidity Banks in that Group
bears to the Aggregate Commitment.
"Prescribed Forms" means such duly executed form(s) or statement(s),
and in such number of copies, which may, from time to time, be prescribed by law
and which, pursuant to applicable provisions of (a) an income tax treaty between
the United States and the country of residence of the Indemnified Party
providing the form(s) or statement(s), (b) the Code or (c) any applicable rule
or regulation under the Code, required and permitted by law to be provided by
the Indemnified Party, as exhibits, to Borrower in order to permit Borrower to
make payments hereunder for the account of such Indemnified Party free of
deduction or withholding for income or similar taxes.
"Prime Rate" means, for any Group, a rate per annum equal to the prime
rate of interest announced from time to time by its Co-Agent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"Pro Rata Share" means, for each Liquidity Bank, a percentage equal to
the Commitment of such Liquidity Bank, divided by the Aggregate Commitment.
"Ratable Share" means with respect to the Liquidity Banks in each
Group, the ratio each Liquidity Bank's Liquidity Commitment bears to the total
Liquidity Commitment of all Liquidity Banks in such Group.
"RBC" means Royal Bank of Canada, a Canadian chartered bank, acting
through a New York branch, in its individual capacity and its capacity as an
Agent.
"Receivable" has the meaning set forth in the Receivables Sale
Agreement.
"Receivables Sale Agreement" means that certain Amended and Restated
Receivables Sale Agreement, dated as of November 7, 2007, by and between the
Originators, as sellers, and Borrower, as buyer, as the same may be amended,
restated or otherwise modified from time to time in accordance with the terms
thereof and hereof.
"Records" means, with respect to any Receivable, all Contracts and
other documents, books, records and other information (including, without
limitation, computer
I-18
programs, tapes, disks, punch cards, data processing software and related
property and rights) relating to such Receivable, any Related Security therefor
and the related Obligor.
"Regulatory Change" means any change after the date of this Agreement
in United States (federal, state or municipal) or foreign laws, regulations
(including Regulation D) or accounting principles or the adoption or making
after such date of any interpretations, directives or requests applying to a
class of banks (including the Liquidity Banks) of or under any United States
(federal, state or municipal) or foreign laws, regulations (whether or not
having the force of law) or accounting principles by any court, governmental or
monetary authority, or accounting board or authority (whether or not part of
government) charged with the establishment, interpretation or administration
thereof. For the avoidance of doubt, any interpretation of Accounting Research
Bulletin No. 51 by the Financial Accounting Standards Board shall constitute a
Regulatory Change.
"Related Security" means, for purposes of this Agreement:
(i) all of Borrower's right, title and interest in and to the "Related
Security" under and as defined in the Receivables Sale Agreement,
(ii) all of the Borrower's right, title and interest in, to and under
the Receivables Sale Agreement,
(iii) all of the Borrower's right, title and interest in and to the
Demand Advances, and
(iv) all proceeds of any of the foregoing.
"Required Liquidity Banks" means, at any time, Liquidity Banks with
Commitments in excess of 66-2/3% of the Aggregate Commitment.
"Required Notice Period" means the number of days required notice set
forth below applicable to the Aggregate Reduction indicated below:
Aggregate Required Notice
Reduction Period
less than 25% of the 2 Business Days
Aggregate Commitment
greater than or equal to 5 Business Days
25% but less than 50% of the
Aggregate Commitment
greater than or equal to 50% of 10 Business Days
the Aggregate Commitment
"Required Reserve" means, on any day during a Calculation Period, the
product of (a) the greater of (i) the Reserve Floor and (ii) the sum of the Loss
Reserve, the Interest
I-19
Reserve, the Dilution Reserve and the Servicing Reserve, times (b) the Net Pool
Balance as of the Cut-Off Date immediately preceding such Calculation Period.
"Requirements of Law" means as to any Person, (a) its Organic
Documents, and any (b) 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.
"Reserve Floor" means, for any Calculation Period, the sum (expressed
as a percentage) of (a) 10%, provided that the long term unsecured debt rating
of BSX is, in the case of S&P, BB or better or, in the case of Xxxxx'x, Xx0 or
better, or 15% if such long term unsecured debt rating is less than BB or Ba2,
respectively plus (b) the product of the Adjusted Dilution Ratio and the
Dilution Horizon Ratio plus (c) the Interest Reserve plus (d) the Servicing
Reserve, in each case, as of the immediately preceding Cut-Off Date.
"Response Date" has the meaning set forth in Section 1.8.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
capital stock of Borrower now or hereafter outstanding, except a dividend
payable solely in shares of that class of stock or in any junior class of stock
of Borrower, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of capital stock of Borrower now or hereafter outstanding, (iii) any
payment or prepayment of principal of, premium, if any, or interest, fees or
other charges on or with respect to, and any redemption, purchase, retirement,
defeasance, sinking fund or similar payment and any claim for rescission with
respect to the Subordinated Loans (as defined in the Receivables Sale
Agreement), (iv) any payment made to redeem, purchase, repurchase or retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of capital stock of Borrower now or hereafter
outstanding, and (v) any payment of management fees by Borrower (except for
reasonable management fees to BSX or its Affiliates in reimbursement of actual
management services performed).
"Revolving Period" means that period from and after the date hereof
through but excluding the Facility Termination Date.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Scheduled Termination Date" means, as to each Liquidity Bank, the
earlier to occur of August 6, 2008 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.
"SEC" means the Securities and Exchange Commission or any successor or
analogous Governmental Authority.
"Secured Parties" means the Indemnified Parties.
I-20
"Servicer" means at any time the Person (which may be the
Administrative Agent) then authorized pursuant to Article VIII to service,
administer and collect Receivables.
"Servicing Fee" means, for each day in a Calculation Period:
(a) an amount equal to (i) the Servicing Fee Rate at any time while
BSX or one of its Affiliates is the Servicer, times (ii) the aggregate
Outstanding Balance of all Receivables at the close of business on the
Cut-Off Date immediately preceding such Calculation Period, times (iii)
1/360; or
(b) on and after the Servicer's reasonable request made at any time
when BSX or one of its Affiliates is no longer acting as Servicer
hereunder, an alternative amount specified by the successor Servicer not
exceeding (i) 110% of such Servicer's reasonable costs and expenses of
performing its obligations under this Agreement during the preceding
Calculation Period, divided by (ii) the number of days in the current
Calculation Period, in either case, payable in arrears.
"Servicing Fee Rate" means 1.0% per annum.
"Servicing Reserve" means, for any month, the product (expressed as a
percentage) of (a) 1%, times (b) a fraction, the numerator of which is the
highest Days Sales Outstanding for the most recent 12 months and the denominator
of which is 360.
"Settlement Date" means (A) the 3rd Business Day after each Monthly
Reporting Date, and (B) the last day of the relevant Interest Period in respect
of each LIBOR Loan.
"Settlement Period" means, with respect to each Settlement Date, (A)
in respect of each LIBOR Loan (except as provided in following clause (B)) and
Alternate Base Rate Loan, the immediately preceding Calculation Period and (B)
in respect of each LIBOR Loan and the month in which its Interest Period ends,
the period beginning on (and including) the day after the last day through which
Interest was paid thereon and ending on (but not including) the last day of such
Interest Period.
"Solvent" and "Solvency" means, for any Person on a particular date,
that on such date (a) the fair value of the Property of such Person is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts and liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which such Person's Property would constitute an unreasonably small capital.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any partnership, association, limited liability
I-21
company, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Tax" or "Taxes" means all license and registration fees and all
income, gross receipts, rental, franchise, excise, occupational, capital, value
added, sales, use, ad valorem (real and personal), property (real and personal)
and excise taxes, fees, levies, imposts, charges or withholdings of any nature
whatsoever, together with any assessments, penalties, fines, additions to tax
and interest thereon, by any federal, state or local government or taxing
authority in the United States or by any foreign government, foreign
governmental subdivision or other foreign or international taxing authority.
"Termination Date" means the earliest to occur of: (a) the last
Scheduled Termination Date of any Liquidity Bank; (b) the date designated by the
Borrower as the "Termination Date" on not less than fifteen (15) Business Days'
notice to the Co-Agents, provided that on such date the Obligations have been
paid in full; (c) the date specified in Section 9.2 (including, without
limitation, any such specified date following any Co-Agent's failure to approve
a requested waiver hereunder); and (d) the 90th day after any requested
amendment to this Agreement (as opposed to a requested waiver hereunder) is not
approved by the Co-Agents within 30 days after receipt of such request (unless
such proposed amendment is approved by one Co-Agent and the Obligations owing
dissenting Co-Agent's Group(s) are paid in full on or within 60 days after such
30th day).
"Transaction Documents" means, collectively, this Agreement (including
any Assignment and Acceptance Agreements), each Borrowing Request, the
Receivables Sale Agreement, each Joinder Agreement, each Collection Account
Agreement, the Amended Fee Letters, each of the Subordinated Notes (as defined
in the Receivables Sale Agreement), the Liquidity Agreements and all other
instruments, documents and agreements executed and delivered in connection
herewith.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the specified jurisdiction.
"Unmatured Amortization Event" means an event which, with the passage
of time or the giving of notice, or both, would constitute an Amortization
Event.
"Victory" has the meaning provided in the preamble of this Agreement.
"Victory Agent" has the meaning provided in the preamble of this
Agreement.
"Victory Allocation Limit" has the meaning set forth in Section
1.1(b).
"Victory Fee Letter" means that certain Victory Fee Letter, dated as
of August 16, 2002, by and among BSX, Borrower and the Victory Agent, as the
same may be amended, restated or otherwise modified from time to time.
"Victory Group" has the meaning provided in the preamble of this
Agreement.
I-22
"Victory Liquidity Agreement" means, collectively, the Liquidity
Agreement, dated as of August 16, 2002, among Victory, the Victory Agent, and
the Victory Liquidity Banks from time to time party thereto and the related
Asset Purchase Agreement, as each may be amended, restated, supplemented,
replaced or otherwise modified from time to time.
"Victory Liquidity Bank" means any Liquidity Bank that now or
hereafter enters into this Agreement and the Victory Liquidity Agreement.
B. Other Interpretive Matters. All accounting terms defined directly
or by incorporation in this Agreement or the other Transaction Documents shall
have the defined meanings when used in any certificate or other document
delivered pursuant thereto unless otherwise defined therein. For purposes of
this Agreement, the other Transaction Documents and all such certificates and
other documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in such agreement, and accounting terms partly defined in such
agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC and not otherwise defined in such agreement are used as
defined in such Article; (c) references to any amount as on deposit or
outstanding on any particular date means such amount at the close of business on
such day; (d) the words "hereof," "herein" and "hereunder" and words of similar
import refer to such agreement (or the certificate or other document in which
they are used) as a whole and not to any particular provision of such agreement
(or such certificate or document); (e) references to any Section, Schedule or
Exhibit are references to Sections, Schedules and Exhibits in or to such
agreement (or the certificate or other document in which the reference is made),
and references to any paragraph, subsection, clause or other subdivision within
any Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (f) the term "including" means
"including without limitation"; (g) references to any law refer to that law as
amended from time to time and include any successor law; (h) references to any
agreement refer to that agreement as from time to time amended or supplemented
or as the terms of such agreement are waived or modified in accordance with its
terms; (i) references to any Person include that Person's successors and
assigns; (j) headings are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof; (k) unless
otherwise provided, in the calculation of time from a specified date to a later
specified date, the term "from" means "from and including", and the terms "to"
and "until" each means "to but excluding"; (l) terms in one gender include the
parallel terms in the neuter and opposite gender; (m) "during the continuance of
an Amortization Event" means that an Amortization Event has occurred and has not
been waived and (n) the preamble and recitals shall constitute a part of this
Agreement.
I-23
EXHIBIT II
FORM OF BORROWING REQUEST
---
[Borrower's Name]
BORROWING REQUEST
For Borrowing on _____________
Royal Bank of Canada, as Old Line Agent
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx, Fax No. (000) 000-0000
and
The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as Victory Agent
___________________________________
New York, NY
Attention: _____________________, Fax No. (212)_____________________
[SPECIFY Co-Agent]
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit and Security
Agreement dated as of November 7, 2007 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Boston Scientific
Funding LLC, a Delaware limited liability company (the "Borrower"), Boston
Scientific Corporation, a Delaware corporation as initial Servicer, Old Line
Funding, LLC, Victory Receivables Corporation, various Liquidity Banks, The Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as a Co-Agent, and Royal Bank of
Canada, 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 certifies,
represents and warrants to the Agents and the Lenders that on and as of the
Borrowing Date (as hereinafter defined):
(a) all applicable conditions precedent set forth in Article V of the
Credit Agreement have been satisfied;
(b) 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 the Borrowing Date; provided, however, that so long as
each of the Liquidity Banks remains a party
II-1
to the BSX Credit Agreement, in no event will any Loan Party be required to
"date-down" its representation in Section 6.1(b) or 6.1(g);
(c) no event will have occurred and is continuing, or would result
from the requested Purchase, that constitutes an Amortization Event or Unmatured
Amortization Event;
(d) the Termination Date has not occurred; and
(e) after giving effect to the Loans comprising the Advance requested
below, the aggregate principal amount of the Old Line Group's Loans at any one
time outstanding will not exceed the Old Line Allocation Limit, and the
aggregate principal amount of the Victory Group's Loans at any one time
outstanding will not exceed the Victory Allocation Limit [and the aggregate
principal amount of [SPECIFY Group's] Loans at any one time outstanding will not
exceed [SPECIFY GROUP] Allocation Limit.].
2. The [Servicer, on behalf of the] Borrower hereby requests that the
Conduits (or their respective Liquidity Banks) make an Advance on ___________,
_____ (the "Borrowing Date") as follows:
(a) Aggregate Amount of Advance: $__________
(i) Old Line Group's Amount of Advance: $___________
(ii) Victory Group's Amount of Advance: $___________
(iii) [SPECIFY Group's] Amount of Advance: $___________
3. Please disburse the proceeds of the Loans as follows:
(i) Old Line Group: [Apply $________ to payment of principal and
interest of existing Loans due on the Borrowing Date]. [Apply $______ to
payment of fees due on the Borrowing Date]. [Wire transfer $________ to
account no. ________ at ___________ Bank, in [city, state], ABA No.
__________, Reference: ________]; and
(ii) Victory Group: [Apply $________ to payment of principal and
interest of existing Loans due on the Borrowing Date]. [Apply $______ to
payment of fees due on the Borrowing Date]. [Wire transfer $________ to
account no. ________ at ___________ Bank, in [city, state], ABA No.
__________, Reference: ________].
(iii) [SPECIFY Group]: [Apply $________ to payment of principal and
interest of existing Loans due on the Borrowing Date]. [Apply $______ to
payment of fees due on the Borrowing Date]. [Wire transfer $________ to
account no. ________ at ___________ Bank, in [city, state], ABA No.
__________, Reference: ________].
II-2
IN WITNESS WHEREOF, the [Servicer, on behalf of the] Borrower has
caused this Borrowing Request to be executed and delivered as of this ____ day
of ___________, _____.
[_______________________, as Servicer, on
behalf of:] _________________________, as
Borrower
By:
Name:
Title:
II-3
EXHIBIT III
LOAN PARTIES' ORGANIZATIONAL ID NUMBERS; JURISDICTIONS OF
ORGANIZATION; CHIEF EXECUTIVE OFFICE ADDRESSES; LOCATION(S)
WHERE RECORDS ARE KEPT
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
Legal Name of Prior Legal Name, Organizational Jurisdiction Chief Executive Locations of
Loan Party Trade Name or ID of Organization Office Records and
Assumed Name material Contracts
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
Boston Scientific None 0874815 Delaware One Boston One Boston
Corporation Scientific Place, Scientific Place,
Natick, Xxxxxx,
Xxxxxxxxxxxxx 00000 Massachusetts 01760
Xxxxx Xxxxx,
Xxxxxxxxx 00000
000 Xxxxxxxxx Xxxx
Xxxx., Xxxxxx,
Xxxxxxxxxxxxx 00000
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
Boston Scientific Boston Scientific 3541726 Delaware One Boston One Boston
Funding LLC Funding Scientific Place, Scientific Place,
Corporation Natick, Xxxxxx,
Xxxxxxxxxxxxx 00000 Massachusetts 01760
Xxxxx Xxxxx,
Xxxxxxxxx 00000
000 Xxxxxxxxx Xxxx
Xxxx., Xxxxxx,
Xxxxxxxxxxxxx 00000
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
III-1
EXHIBIT IV
NAMES OF COLLECTION BANKS; LOCK BOXES & COLLECTION ACCOUNTS
Lock boxes; Collection Accounts; Collection Banks
-------------------------- --------------- --------- ------- ------------------
Collection Bank Account Lockbox Notes Lockbox Site
-------------------------- --------------- --------- ------- ------------------
Wachovia Bank, National 2014154639256 #0000 Xxxxxxxxxxxx, XX
Association (f.k.a. First
Union National Bank) #812638 Xxx Xxxxxxx, XX
#000000 Xxxxxx, XX
V-1
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: Royal Bank of Canada, as Old Line Agent and as Administrative Agent The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as Victory agent
[Specify other Co-Agent]
This Compliance Certificate is furnished pursuant to that certain
Amended and Restated Credit and Security Agreement dated as of November 7, 2007
among Boston Scientific Funding LLC, a Delaware limited liability company (the
"Borrower"), Boston Scientific Corporation, a Delaware corporation as initial
Servicer (the "Servicer"), Old Line Funding, LLC, Victory Receivables
Corporation, various Liquidity Banks, The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
New York Branch, as a Co-Agent, and Royal Bank of Canada, as a Co-Agent and
Administrative Agent (the "Agreement").
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _________________ of [Borrower/Servicer] (the
"Company").
2. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
an Amortization Event or Unmatured Amortization Event, as each such term is
defined under the Agreement, during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate[, except as set forth in paragraph 4 below].
[3. Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Company has taken, is taking, or
proposes to take with respect to each such condition or event: _______________]
4. The financial statements accompanying this certificate are complete
and correct in all material respects and have been prepared in reasonable detail
and in accordance with GAAP; provided that it is hereby acknowledged that the
quarterly financial statements delivered herewith may not include all of the
information and footnotes required by GAAP for complete annual financial
statements. The financial statements accompanying this certificate present
fairly the [consolidated] financial position of [the Servicer and its
consolidated subsidiaries][the Borrower] in all material respects as of the date
hereof and the [consolidated] results of operations for the period covered
thereby.
V-1
The foregoing certifications and the financial statements delivered
with this Certificate in support hereof, are made and delivered as of
______________, 20__.
By: __________________________
Name:
Title:
V-2
EXHIBIT VI
FORM OF COLLECTION ACCOUNT AGREEMENT
[See Attached]
VI-1
EXHIBIT VII
EXHIBIT VII-1
FORM OF COMMITMENT REDUCTION NOTICE
---
[Borrower's Name]
COMMITMENT REDUCTION NOTICE
Date:_________________
To: Royal Bank of Canada, as Old Line Agent, and The Bank of Tokyo-Mitsubishi
UFJ, Ltd., New York Branch, as Victory Agent [Specify other Co-Agent]
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit and Security
Agreement dated as of November 7, 2007 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Boston Scientific
Funding LLC, a Delaware limited liability company (the "Borrower"), Boston
Scientific Corporation, a Delaware corporation as initial Servicer, Old Line
Funding, LLC, Victory Receivables Corporation, various Liquidity Banks, The Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as a Co-Agent, and Royal Bank of
Canada, as a Co-Agent and Administrative Agent. Capitalized terms defined in the
Credit Agreement are used herein with the same meanings.
The [Servicer, on behalf of the] Borrower hereby irrevocably notifies the
Co-Agents of the following reduction in the Aggregate Commitment:
Amount of Aggregate Commitment in effect on the date hereof: $_________
Aggregate Reduction requested: $_____________
Old Line Group's amount of reduction: $_____________
Victory Group's amount of reduction: $____________
[Other Group's amount of reduction: $_________]
Effective date of reduction: ________________, 20 __ (which date is not less
than five (5) Business Days after the date hereof).
Amount of Aggregate Commitment that will be in effect after giving effect to the
foregoing Aggregate Reduction: $____________
Old Line Group's amount of revised Aggregate Commitment: $_____________
Victory Group's amount of revised Aggregate Commitment: $_____________
[Other Group's amount of revised Aggregate Commitment: $__________]
The [Servicer, on behalf of the] Borrower hereby certifies to the Co-Agents
that, after giving effect to the foregoing reduction in the Aggregate
Commitment:
VII-1-1
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;
The amount of the Aggregate Commitment will not be less than $100,000,000 unless
the Aggregate Commitment is terminated in full; and 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 _________, _____.
[__________________, as Servicer, on behalf of:]
_____________________, as Borrower
By:
Name:
Title:
VII-1-2
EXHIBIT VII-2
FORM OF COMMITMENT INCREASE REQUEST
---
[Borrower's Name]
COMMITMENT INCREASE REQUEST
Date:_________________
To: Royal Bank of Canada, as Old Line Agent, and The Bank of Tokyo-Mitsubishi
UFJ, Ltd., New York Branch, as Victory Agent [Specify other Co-Agent]
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit and Security
Agreement dated as of November 7, 2007 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Boston Scientific
Funding LLC, a Delaware limited liability company (the "Borrower"), Boston
Scientific Corporation, a Delaware corporation as initial Servicer, Old Line
Funding, LLC, Victory Receivables Corporation, various Liquidity Banks, The Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as a Co-Agent, and Royal Bank of
Canada, as a Co-Agent and Administrative Agent. Capitalized terms defined in the
Credit Agreement are used herein with the same meanings.
The [Servicer, on behalf of the] Borrower hereby irrevocably requests the
Co-Agents to increase the Aggregate Commitment as follows:
Amount of Aggregate Commitment in effect on the date hereof: $_________
Aggregate increase requested: $_____________
Old Line Group's amount of requested increase: $_____________
Victory Group's amount of requested increase: $____________
[Other Group's amount of reduction: $_________]
If approved, effective date of increase: ________________, 20 __ (which date is
not less than fifteen (15) Business Days after the date hereof).
Amount of Aggregate Commitment that will be in effect after giving effect to the
foregoing aggregate increase: $____________
Old Line Group's amount of revised Aggregate Commitment: $_____________
Victory Group's amount of revised Aggregate Commitment: $_____________
[Other Group's amount of revised Aggregate Commitment: $__________]
The [Servicer, on behalf of the] Borrower hereby represents and warrants to the
Co-Agents and the Lenders that on and as of the effective date the requested
increase in the Aggregate Commitments that:
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
VII-2-1
Agreement, in no event will any Loan Party be required to "bring-down" its
representation in Section 6.1(b) or 6.1(g);
no event will have occurred and is continuing, or would result from the
requested increase that constitutes an Amortization Event or Unmatured
Amortization Event; and the Termination Date has not occurred.
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
By:
Name:
Title:
VII-2-2
EXHIBIT VII-3
FORM OF COMMITMENT INCREASE RESPONSE
---
[Old Line/Victory/Other] Group
COMMITMENT INCREASE RESPONSE
Date:_________________
To: Boston Scientific Funding LLC, and
Boston Scientific Corporation, as Servicer
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit and Security
Agreement dated as of November 7, 2007 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Boston Scientific
Funding LLC, a Delaware limited liability company (the "Borrower"), Boston
Scientific Corporation, a Delaware corporation as initial Servicer, Old Line
Funding, LLC, Victory Receivables Corporation, various Liquidity Banks, The Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as a Co-Agent, and Royal Bank of
Canada, as a Co-Agent and Administrative Agent. Capitalized terms defined in the
Credit Agreement are used herein with the same meanings.
On ____________, 20__, you requested that the [Old Line/Victory] Group
increase its share of the Aggregate Commitment by $_____________ (the "Group's
Requested Increase Share") effective on ____________, 20__, (the "Increase
Effective Date"). Please be advised that the [Old Line/Victory/Other] 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.
Very truly yours,
[CO-AGENT'S NAME], as [Old Line/Victory/Other]
Agent
By:______________________
Name:
Title:
[By: ______________________
Name:
Title:]
VII-3-1
EXHIBIT VIII
CREDIT AND COLLECTION POLICY
See Exhibit C to Receivables Sale Agreement
VIII-1
EXHIBIT IX
FORM OF MONTHLY REPORT
[See Attached]
IX-1
EXHIBIT X
ELIGIBLE ORIGINATORS
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
Legal Name of Prior Legal Name, Organizational Jurisdiction Chief Executive Locations of
Eligible Trade Name or ID of Organization Office Records and
Originator Assumed Name material Contracts
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
Boston Scientific None 0874815 Delaware One Boston One Boston
Corporation Scientific Place, Scientific Place,
Natick, Xxxxxx,
Xxxxxxxxxxxxx 00000 Massachusetts 01760
Xxxxx Xxxxx,
Xxxxxxxxx 00000
000 Xxxxxxxxx Xxxx
Xxxx., Xxxxxx,
Xxxxxxxxxxxxx 00000
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
X-1
EXHIBIT XI
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Dated [________________]
Reference is made to the Amended and Restated Credit and Security
Agreement, dated as of November 7, 2007 by and among Boston Scientific Funding
LLC, as Borrower, Boston Scientific Corporation, as Servicer, Old Line Funding,
LLC, Victory Receivables Corporation, The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
New York Branch, as a Lender and as a Co-Agent, and Royal Bank of Canada, as a
Lender, as a Co-Agent and as Administrative Agent, as amended (as amended,
supplemented and otherwise modified prior to the date hereof, the "Agreement").
Capitalized terms used and not otherwise defined herein shall have the meanings
attributed thereto in the Agreement.
WHEREAS, [________] ("Conduit Assignor") wishes to assign [__]% of its
outstanding Loans to [______________] ("Conduit Assignee") and, subject to the
terms hereof, Conduit Assignee is willing to accept the Loans so assigned;
WHEREAS, [________] ("Committed Lender Assignor") wishes to assign to
[_______] ("Committed Lender Assignee") [__]% of its Commitment and its
obligation to make Loans from time to time under the Agreement and, subject to
the terms hereof, Committed Lender Assignee is willing to assume the Commitment
so assigned and the obligation to make Loans from time to time under the
Agreement; and
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assignment and Assumption. (a) In consideration of Conduit
Assignee's payment of $[_______] to (or at the direction of) Conduit
Assignor, which amount equals the aggregate outstanding principal of the
assigned Loans owing to Conduit Assignor as of the date hereof under the
Agreement (the "Assignment Price"), Conduit Assignor hereby sells and
assigns to Conduit Assignee, without recourse and (except as set forth in
Section 2) without representation or warranty, and Conduit Assignee hereby
purchases and accepts from Conduit Assignor, all of Conduit Assignor's
right, title and interest in, to and under such assigned Loans owing to
Conduit Assignor on the date hereof, together with a proportionate share of
Conduit Assignor's right, title and interest in and to the Collateral and
all of Conduit Assignor's rights under the Agreement and the other
Transaction Document.
(b) In connection with the assignment and acceptance effected pursuant
to preceding clause (a) (and in consideration thereof), Committed Lender
Assignor hereby assigns to Committed Lender Assignee, without recourse and
(except as set forth in Section 2) without representation or warranty,
[__]% of Committed Lender Assignor's entire Commitment (in the amount of
$[________]) and its obligation to make Loans from time to time under the
Agreement, and Committed Lender Assignee hereby assumes the Commitment so
assigned and the obligation to make Loans from time to time under the
Agreement in accordance with (and subject to the terms of) the Agreement.
For the
avoidance of doubt, Committed Lender Assignor and Committed Lender Assignee
acknowledge and agree that Committed Lender Assignor does not hereby assign
to Committed Lender Assignee all or any portion of Committed Lender
Assignor's Liquidity Commitment and Committed Lender Assignee does not
hereby assume all or any portion of Committed Lender Assignor's Liquidity
Commitment.
(c) [Without limiting the generality of the foregoing, on the date
hereof (after giving effect to all other payments and distributions made
by, or on behalf of the Borrower on the date hereof), the Borrower (or the
Servicer, acting on behalf of the Borrower) agrees to pay $[______] to the
[Assignor Group] Agent, on behalf of Conduit Assignee and the Committed
Lender Assignor, representing all accrued and unpaid interest, fees and all
other Obligations due and owing it and/or them through (but excluding) the
date hereof with respect to the assigned Loans (other than amounts in
respect of principal of the Loans owing to Conduit Assignee).][Include, if
applicable]
2. Representations and Disclaimers of Conduit Assignor and Committed
Lender Assignor.
(a) Each of Conduit Assignor and Committed Lender Assignor represents
and warrants, as to itself, that it is the legal and beneficial owner of
the interests being assigned by it hereunder and that such interest is free
and clear of any adverse claim;
(b) [Each of Conduit Assignor and Committed Lender Assignor represents
and warrants, as to itself, that after giving effect to the payments
contemplated in Section 1(a) and (c) hereof, all Obligations owing to it
shall have been paid in full;][Include if all of Assignor's Loans are being
assigned.]
(c) Each of Conduit Assignor and Committed Lender Assignor represents
and warrants, as to itself, that this Assignment and Acceptance Agreement
has been duly authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable against it in accordance
with the terms hereof;
(d) Neither Conduit Assignor nor Committed Lender Assignor makes any
representation or warranty or assumes any responsibility with respect to
any statements, warranties or representations made in or in connection with
the Transaction Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Transaction
Documents or any other instrument or document furnished pursuant thereto;
and
(e) Neither Conduit Assignor nor Committed Lender Assignor makes any
representation or warranty or assumes any responsibility with respect to
the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Transaction Documents.
XI-2
3. Representations and Agreements of Conduit Assignee and Committed
Lender Assignee.
(a) Each of Conduit Assignee and Committed Lender Assignee confirms
that it has received copies of the Transaction Documents and such other
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance Agreement;
(b) Each of Conduit Assignee and Committed Lender Assignee agrees that
it will, independently and without reliance upon Conduit Assignor,
Committed Lender Assignor or any other person and based on such Transaction
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 Transaction Documents;
(c) Each of Conduit and Committed Lender Assignee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Transaction Documents and this Assignment and Acceptance
Agreement are required to be performed by it; and
(d) Each of Conduit Assignee and Committed Lender Assignee represents
and warrants, as to itself, that this Assignment and Acceptance Agreement
has been duly authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable against it in accordance
with the terms hereof.
4. Agreement to Maintain Confidentiality. Each of Conduit Assignee and
Committed Lender Assignee agrees to abide by the provisions of Section 14.5 of
the Agreement.
5. Effect of Assignment and Acceptance. (a) Upon execution and
delivery of this Assignment and Acceptance Agreement by Conduit Assignor,
Committed Lender Assignor, Conduit Assignee and Committed Lender Assignee, the
acknowledgement and agreement hereto by the Borrower, the Servicer and [Any
other Party], payment by Conduit Assignee of the Assignment Price as provided in
Section 1(a) [and payment by, or on behalf of, Borrower of the amount set forth
in Section 1(c)], (i) Conduit Assignee shall be a party to the Agreement as a
Conduit and shall have all of the rights and obligations of a Conduit
thereunder, (ii) Committed Lender Assignee shall be a party to the Agreement as
a Committed Lender and/or Liquidity Bank, as applicable, and shall have all of
the rights and obligations of a Committed Lender and/or Liquidity Bank
thereunder, and (iii) each of Conduit Assignor and Committed Lender Assignor
shall relinquish all of its respective rights and be released from its
respective obligations (if any) [with respect to the Loans, Collateral and
Commitment assigned hereunder] under the Agreement and the other Transaction
Documents.
(b) Immediately after giving effect to the assignments and assumptions
effected by this Assignment and Acceptance Agreement, (i) Committed Lender
Assignee's Commitment shall be $[____________], the aggregate outstanding
principal of all Loans owing to Conduit Assignee shall be $[________] and
the Percentage for the Group which includes Conduit Assignee and Committed
Lender Assignee shall be [__]%
XI-2
and (ii) Committed Lender Assignor's Commitment shall be $[______], the
aggregate outstanding principal of all Loans owing to Conduit Assignor
shall be $[________] and the percentage for the Group which includes the
Conduit Assignor and Committed Lender Assignor shall be [__]%.
(c) [After giving effect to the assignments and assumptions effected
by this Assignment and Acceptance Agreement, all reimbursement, indemnity
and similar provisions contained in the Transaction Documents which, by
their terms, inure to the benefit of the Lenders and/or the Co-Agents,
shall continue to inure to Conduit Assignor's and Committed Lender
Assignee's benefit, as applicable, as to any actions taken or omitted to be
taken by it while it was a party to the Agreement or any other Transaction
Document.][Include if all of Assignor's rights being assigned.]
(d) Schedule I attached hereto sets forth information (as such
information may be changed from time to time in accordance with the
Agreement) relating to the Conduit Assignee, the Committed Lender Assignee
and its Co-Agent and the related Group. Such Schedule I shall be deemed to
amend the Agreement without any further action of any party to the
Agreement.
6. Further Assurances. Each of Conduit Assignor, Committed Lender
Assignor, Conduit Assignee and Committed Lender Assignee agrees that from time
to time, at the Borrower's expense, it will promptly execute and deliver all
instruments and documents, and take all actions, that may be necessary or
desirable to more fully effect the purposes of this Assignment and Acceptance
Agreement.
7. GOVERNING LAW. THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
XI-4
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
[__________________],
as Conduit Assignor
By: _____________________________
Name:
Title:
[__________________],
as Committed Lender Assignor and Co-Agent for
Conduit Assignor and Committed Lender Assignor
By: _____________________________
Name:
Title:
[__________________],
as Conduit Assignee
By: _____________________________
Name:
Title:
[__________________],
as a Committed Lender Assignee, as a Liquidity
Bank, and as a Co-Agent for Conduit Assignee and
Committed Lender Assignee
By: _____________________________
Name:
Title:
Acknowledged and Agreed:
BOSTON SCIENTIFIC CORPORATION,
as Servicer
By: ___________________________
Name:
Title:
BOSTON SCIENTIFIC FUNDING LLC,
as Borrower
By: ___________________________
Name:
Title:
ROYAL BANK OF CANADA, as Administrative Agent,
By: ___________________________
Name:
Title:
[OTHER PARTY, as required]
By: ___________________________
Name:
Title:
Schedule I to
Assignment and Acceptance
Agreement
Assignee Information
--------------------
Conduit:
Co-Agent:
Committed Lender(s):
Group:
Liquidity Bank(s):
Commitment:
"Liquidity Agreement" means [SPECIFY]
"[Group] Allocation Limit" means [SPECIFY]
"LIBOR", for such Group, means [SPECIFY].
Notice Addresses:
SCHEDULE A
COMMITMENTS
-------------------------------------- ------------------------------------
Lender Commitment
-------------------------------------- ------------------------------------
Old Line None
-------------------------------------- ------------------------------------
Royal Bank of Canada $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)
-------------------------------------- ------------------------------------
S-A-1
SCHEDULE B
DOCUMENTS TO BE DELIVERED TO THE ADMINISTRATIVE AGENT
ON OR PRIOR TO THE INITIAL PURCHASE
------------------------------------------------------------ ------------------- --------------------
Drafting
Document Signatories Responsibility
------------------------------------------------------------ ------------------- --------------------
------------------------------------------------------------ ------------------- --------------------
1. Receivables Sale Agreement ("RSA") Originator L&W
SPC
------------------------------------------------------------ ------------------- --------------------
o Annex A to RSA - Definitions n/a L&W
------------------------------------------------------------ ------------------- --------------------
o Exhibit A to RSA - Form of Purchase Report n/a L&W
------------------------------------------------------------ ------------------- --------------------
o Exhibit B to RSA - Form of Subordinated Note n/a L&W
------------------------------------------------------------ ------------------- --------------------
o Exhibit C to RSA - Credit and Collection Policy n/a BSX
------------------------------------------------------------ ------------------- --------------------
o Exhibit D to RSA - Form of Joinder Agreement n/a L&W
------------------------------------------------------------ ------------------- --------------------
o Schedule 2.1(r) to RSA - Originator's n/a BSX
Organizational ID Number; Chief Executive Office
Address; Locations of Records; Prior Names
------------------------------------------------------------ ------------------- --------------------
2. A certificate of Originator's Assistant Secretary BSX S&S
certifying:
(a) the names and true signatures of the officers
authorized on Originator's behalf to sign the Transaction
Documents to be delivered by it;
(b) an attached copy of resolutions of
Originator's board of directors, authorizing the
Transaction Documents to be delivered by it and the
transactions contemplated thereby; and
(c) an attached copy of Originator's by-laws.
------------------------------------------------------------ ------------------- --------------------
3. A good standing certificate for Originator issued as n/a S&S
of a recent date by the Secretary of State of Delaware
------------------------------------------------------------ ------------------- --------------------
4. Originator's Certificate of Incorporation recently n/a S&S
certified by the Secretary of State of Delaware.
------------------------------------------------------------ ------------------- --------------------
5. A certificate of SPC's Secretary certifying: BSX S&S
(a) the names and true signatures of the officers
authorized on SPC's behalf to sign the Transaction
Documents to be delivered by it;
S-B-1
(b) an attached copy of resolutions of SPC's
board of directors, authorizing the Transaction Documents
to be delivered by it and the transactions contemplated
thereby; and
(c) an attached copy of SPC's by-laws.
------------------------------------------------------------ ------------------- --------------------
6. A good standing certificate for SPC issued as of a n/a S&S
recent date by the Secretary of State of Delaware
------------------------------------------------------------ ------------------- --------------------
7. SPC's Certificate of Incorporation recently certified n/a S&S
by the Secretary of State of Delaware.
------------------------------------------------------------ ------------------- --------------------
8. [Intentionally Deleted] n/a S&S
------------------------------------------------------------ ------------------- --------------------
9. Independent Director's Agreement BSX S&S
SPC
Ind. Dir.
------------------------------------------------------------ ------------------- --------------------
10. UCC, tax and judgment lien searches against n/a S&S
Originator in the relevant central and local filing
offices in the state where (a) it was incorporated and (b)
it maintains its chief executive office
------------------------------------------------------------ ------------------- --------------------
11. Termination Statements with respect to any liens n/a S&S
revealed in the above searches
------------------------------------------------------------ ------------------- --------------------
12. Delaware UCC financing statement naming Originator, n/a L&W
as debtor, SPC, as assignor/secured party, and the
Administrative Agent, as assignee of secured party
------------------------------------------------------------ ------------------- --------------------
13. Subordinated Note SPC L&W
------------------------------------------------------------ ------------------- --------------------
14. Corporate/UCC Opinion S&S S&S
------------------------------------------------------------ ------------------- --------------------
15. True sale and non-consolidation Opinion(s) S&S S&S
------------------------------------------------------------ ------------------- --------------------
16. A certificate from an officer of Originator BSX S&S
to the effect that (a) each of the
representations and warranties set forth in the
RSA is true and correct as of the closing date,
(b) the Sale Termination Date has not occurred,
and (c) Originator has placed on the most recent,
and has taken all steps reasonably necessary to
ensure that there shall be placed on each
subsequent, summary aged trial balance report the
following legend (or the substantive equivalent
thereof): "PROPERTY OF BOSTON SCIENTIFIC FUNDING
LLC"
------------------------------------------------------------ ------------------- --------------------
------------------------------------------------------------ ------------------- --------------------
17. Credit and Security Agreement ("CSA") All L&W
------------------------------------------------------------ ------------------- --------------------
o Exhibit I to CSA: Definitions n/a L&W
------------------------------------------------------------ ------------------- --------------------
S-B-2
o Exhibit II to CSA: Form of Borrowing Request n/a L&W
------------------------------------------------------------ ------------------- --------------------
o Exhibit III to CSA: Jurisdictions of n/a L&W
Organization and Chief Executive Offices of the
Loan Parties; Location of Records; Organizational
identification Numbers
------------------------------------------------------------ ------------------- --------------------
o Exhibit IV to CSA: Names of Collection Banks; n/a Wachovia
Collection Accounts
------------------------------------------------------------ ------------------- --------------------
o Exhibit V to CSA: Form of Compliance Certificate n/a L&W
------------------------------------------------------------ ------------------- --------------------
o Exhibit VI to CSA: Form of Collection Account n/a BSX
Agreement
------------------------------------------------------------ ------------------- --------------------
o Exhibit VII to CSA: [Intentionally Omitted] n/a BSX
------------------------------------------------------------ ------------------- --------------------
o Exhibit VIII to CSA: Credit and Collection Policy n/a BSX
------------------------------------------------------------ ------------------- --------------------
o Exhibit IX to CSA: Form of Monthly Report
------------------------------------------------------------ ------------------- --------------------
o Exhibit X to CSA: Eligible Originators
------------------------------------------------------------ ------------------- --------------------
o Schedule A to CSA: Commitments
------------------------------------------------------------ ------------------- --------------------
o Schedule Bto CSA: Closing Documents
------------------------------------------------------------ ------------------- --------------------
o Schedule 14.2 to CSA: Notices
------------------------------------------------------------ ------------------- --------------------
18. Collection Account Agreement(s) with respect to each BSX L&W
Lockbox and associated account (all are at Wachovia) SPC
Admin. Agent
Wachovia
------------------------------------------------------------ ------------------- --------------------
19. Amended Fee Letters (2) [BSX] L&W
SPC
Co-Agents
------------------------------------------------------------ ------------------- --------------------
20. Monthly Report as of month-end prior to closing BSX BSX/ Wachovia
------------------------------------------------------------ ------------------- --------------------
21. A certificate of an Authorized Officer of each of the BSX S&S
Loan Parties certifying that as of the date of the initial SPC
Advance, no Amortization Event or Unmatured Amortization
Event exists and is continuing
------------------------------------------------------------ ------------------- --------------------
22. Borrowing Notice SPC BSX
------------------------------------------------------------ ------------------- --------------------
23. Delaware UCC Financing Statement naming SPC as debtor n/a L&W
and the Administrative Agent as secured party
------------------------------------------------------------ ------------------- --------------------
24. CSA Corporate/UCC Opinion S&S S&S
------------------------------------------------------------ ------------------- --------------------
25. UCC, tax and judgment lien searches against SPC in n/a S&S
Delaware
------------------------------------------------------------ ------------------- --------------------
S-B-3
26. Opinion back-up certificates BSX S&S
SPC
------------------------------------------------------------ ------------------- --------------------
------------------------------------------------------------ ------------------- --------------------
27. Liquidity Agreement for VFCC Wachovia L&W
VFCC
------------------------------------------------------------ ------------------- --------------------
S-B-3
SCHEDULE C
DOCUMENTS TO BE DELIVERED TO THE ADMINISTRATIVE AGENT
ON OR PRIOR TO THE EFFECTIVENESS DATE
------------------------------------------------------------ ------------------- -------------------- --------------
Drafting
Document Signatories Responsibility Status
------------------------------------------------------------ ------------------- -------------------- --------------
------------------------------------------------------------ ------------------- -------------------- --------------
1. Assignment and Acceptance Agreement, dated as of Borrower OHS Completed
November 7, 2007 among Borrower, Servicer, Royal Bank of Servicer
Canada ("RBC"), Old Line Funding, LLC ("Old Line"), RBC
Variable Funding Capital Company LLC ("VFCC"), Wachovia Old Line
Bank, National Association (the "VFCC Agent") Victory and VFCC
BTMU and payment to the VFCC Agent (on behalf of VFCC) of VFCC Agent
all amounts payable thereunder Victory
BTMU
------------------------------------------------------------ ------------------- -------------------- --------------
2. Amended and Restated Receivables Sale Agreement ("RSA") Originator OHS Completed
SPC
------------------------------------------------------------ ------------------- -------------------- --------------
3. Amendments to/Assignment of BSX Delaware UCC financing n/a OHS Completed
statement nos. 2208187 9 and 6450953 5 assigning same to
the Administrative Agent, as secured party and amending
collateral description
------------------------------------------------------------ ------------------- -------------------- --------------
4. Corporate/UCC Opinion addressed to each Agent and each S&S S&S Completed
Lender
------------------------------------------------------------ ------------------- -------------------- --------------
5. Bring Down Letter addressed to RBC, Old Line, BTMU and S&S S&S Completed
Victory with respect to true sale and non-consolidation
Opinion(s)
------------------------------------------------------------ ------------------- -------------------- --------------
6. A certificate from an officer of Originator to BSX S&S
the effect that (a) each of the representations
and warranties set forth in the RSA is true and
correct as of the closing date and (b) the Sale
Termination Date has not occurred.
------------------------------------------------------------ ------------------- -------------------- --------------
------------------------------------------------------------ ------------------- -------------------- --------------
7. Amended and Restated Credit and Security Agreement All OHS Completed
("CSA")
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit I to CSA: Definitions n/a OHS Completed
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit II to CSA: Form of Borrowing Request n/a OHS Completed
------------------------------------------------------------ ------------------- -------------------- --------------
S-C-1
Exhibit III to CSA: Jurisdictions of Organization and n/a OHS Completed
Chief Executive Offices of the Loan Parties; Location of
Records; Organizational identification Numbers
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit IV to CSA: Names of Collection Banks; n/a BSX Completed
Collection Accounts
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit V to CSA: Form of Compliance Certificate n/a OHS Completed
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit VI to CSA: Form of Collection Account Agreement n/a BSX Completed
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit VII to CSA: Form of Commitment Reduction Notice; n/a BSX Completed
Form of Committment Increase Request; Form of Committment
Increase Response
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit VIII to CSA: Credit and Collection Policy n/a BSX Completed
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit IX to CSA: Form of Monthly Report
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit X to CSA: Eligible Originators Completed
------------------------------------------------------------ ------------------- -------------------- --------------
Exhibit XI to CSA: Form of Assignment and Acceptance Completed
Agreement
------------------------------------------------------------ ------------------- -------------------- --------------
Schedule A to CSA: Commitments Completed
------------------------------------------------------------ ------------------- -------------------- --------------
Schedule B to CSA: Initial Closing Documents Completed
------------------------------------------------------------ ------------------- -------------------- --------------
Schedule C to CSA: Effectiveness Date Documents
------------------------------------------------------------ ------------------- -------------------- --------------
Schedule 14.2 to CSA: Notice Addresses Completed
------------------------------------------------------------ ------------------- -------------------- --------------
8. Amendment/Assignment of Collection Account BSX OHS Completed
Agreement(s) with respect to each Lockbox and associated SPC
account (all are at Wachovia) Admin. Agent
Wachovia
------------------------------------------------------------ ------------------- -------------------- --------------
9. Fee Letter for RBC and Old Line BSX OHS Completed
SPC
Old Line Agent
Old Line
------------------------------------------------------------ ------------------- -------------------- --------------
10. A certificate of an Authorized Officer of each of the BSX S&S
Loan Parties certifying that as of the date of the initial SPC
Advance, no Amortization Event or Unmatured Amortization
Event exists and is continuing
------------------------------------------------------------ ------------------- -------------------- --------------
11. Amendments to/Assignments of Borrower Delaware UCC n/a OHS Completed
Financing Statement nos. 2208192 9 and 6451013 7 assigning
same to the Administrative Agent, as secured party and
amending collateral description
------------------------------------------------------------ ------------------- -------------------- --------------
12. In-house and Delaware counsel opinions addressed to X. Xxxxx X. Xxxxx/S&S Completed
each Agent and each Lender Potter Xxxxxxxx Xxxxxx Xxxxxxxx
------------------------------------------------------------ ------------------- -------------------- --------------
S-C-2
13. Opinion back-up certificates BSX S&S Completed
SPC
------------------------------------------------------------ ------------------- -------------------- --------------
14. Monthly Report for October 2007 BSX BSX
[SPC]
------------------------------------------------------------ ------------------- -------------------- --------------
15. UCC, tax and judgment lien searches against n/a S&S Completed
Originator and Borrower in Delaware
------------------------------------------------------------ ------------------- -------------------- --------------
S-C-3
SCHEDULE 14.2
Addresses
Old Line
--------
Old Line Funding, LLC
c/o Global Securitization Services, LLC
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Old Line Funding, LLC
c/o RBC Capital Markets
Two Little Falls Centre
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Fax (000) 000-0000
Old Line Agent/RBC/Administrative Agent
---------------------------------------
Royal Bank of Canada
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Securitization Finance Managing Director
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
RBC Capital Markets
Two Little Falls Centre
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Fax (000) 000-0000
E-mail: xxxxxxx.xxxxxxxxxx@xxxxx.xxx
S-14.2-1
Victory
-------
Victory Receivables Corporation
c/o X.X. Management Corporation
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Victory Agent/BTMU
------------------
The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Securitization Group
Telephone: (212) 782 - 4913
Fax: (000) 000-0000
S-14.2-2
BSX
---
Boston Scientific Corporation
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx X. Xxxx,
Executive Vice President of
Finance & Information Systems
and Chief Financial Officer
Fax: (000) 000-0000
With a copy to:
General Counsel's Office
Fax: (000) 000-0000
BORROWER
--------
Boston Scientific Funding LLC
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx X. Xxxx,
Chief Financial Officer
Fax: (000) 000-0000
With a copy to:
General Counsel's Office
Fax: (000) 000-0000
S-14.2-3
