WWW.EXFILE.COM, INC. -- 14526 -- BOSTON SCIENTIFIC CORP. -- EXHIBIT 10.1 TO FORM 10-Q


     

    EXHIBIT
      10.1

     

    FORM
      OF

    AMENDMENT
      #8 TO CREDIT AND SECURITY AGREEMENT

     

     

    THIS
      AMENDMENT #8 TO CREDIT AND SECURITY AGREEMENT (this
      “Amendment”)
      is
      entered into by the undersigned parties as of August 9, 2006 with respect to
      the
      Credit and Security Agreement dated as of August 16, 2002 by and among Boston
      Scientific Funding Corporation, a Delaware corporation (“Borrower”),
      Boston
      Scientific Corporation, a Delaware corporation, as initial Servicer, Variable
      Funding Capital Company LLC, a Delaware limited liability company as assignee
      of
      Blue Ridge Asset Funding Corporation (“VFCC”),
      Victory Receivables Corporation, a Delaware corporation (“Victory”),
      The
      Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch (formerly known as The
      Bank
      of Tokyo-Mitsubishi, Ltd., New York Branch), individually as a Liquidity Bank
      and as Victory Agent and Wachovia Bank, National Association, individually
      as a
      Liquidity Bank, as VFCC Agent and as Administrative Agent, as amended from
      time
      to time (the “Credit
      and Security Agreement”).
      Unless
      defined elsewhere herein, capitalized terms used in this Amendment shall have
      the meanings assigned to such terms in the Credit and Security
      Agreement.

     

    RECITALS

     

    WHEREAS,
      the
      Borrower, the initial Servicer, Victory, VFCC, The Bank of Tokyo-Mitsubishi
      UFJ,
      Ltd., New York Branch, individually as a Liquidity Bank and as Victory Agent
      and
      Wachovia Bank, National Association, individually, as a Liquidity Bank, as
      VFCC
      Agent and as Administrative Agent entered into the Credit and Security
      Agreement; and

     

    WHEREAS,
      the
      Borrower has requested that the Agents amend the Credit and Security
      Agreement.

     

    NOW
      THEREFORE,
      in
      consideration of the mutual execution hereof and other good and valuable
      consideration, the parties hereto agree as follows:

     

    1.    Amendments.

     

    1.1.
      The
      following definitions in the Credit and Security Agreement are hereby amended
      and restated in their entirety to read, respectively, as follows:

     

    “Aggregate
      Commitment”
      means,
      on any date of determination, the aggregate amount of the Commitments to make
      Loans hereunder. As of August 9, 2006, the Aggregate Commitment is
      $350,000,000.

     

    “BSX
      Credit Agreement” means
      that certain Credit Agreement dated as of April 21, 2006 in effect on the date
      hereof among (i) BSX, as the “Borrower” thereunder, (ii) BSC International
      Holding Limited, as the “Term Loan Borrower” thereunder, (iii) the lenders party
      thereto, (iv) Merrill Lynch Capital Corporation, as “Syndication Agent”
thereunder, (v) Bear Stearns & Co., Deutshe Bank Securities Inc. and
      Wachovia Bank, National Association, as “Documentation Agents” thereunder, and
      (vi) Bank of America, N.A., as “Administrative Agent” thereunder, provided
      that
      BTMU and Wachovia are still party thereto as lenders.

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    “Scheduled
      Termination Date”
      means,
      as to each Liquidity Bank, the earlier to occur of August 8,
      2007
      and
      the date on which its Liquidity Commitment terminates in accordance with the
      Liquidity Agreement to which it is a party, in either of the foregoing cases,
      unless extended by agreement of such Liquidity Bank in accordance with Section
      1.8.

     

    1.2.
      Section 1.6 of the Credit and Security Agreement is hereby amended and restated
      in its entirety to read as follows:

     

    Section
      1.6. Changes
      in Aggregate Commitment.

     

    (a)
      Borrower may
      reduce the Aggregate Commitment in whole, or ratably between the Groups in
      part,
      in a minimum amount of $10,000,000 (or a larger integral multiple of
      $1,000,000), upon at least five (5) Business Days’ written notice to the
Co-Agents
      in the form of Exhibit VII-1 hereto (each, a “Commitment
      Reduction Notice”),
      which
      notice shall specify the aggregate amount of any such reduction and the VFCC
      Liquidity Banks’ and Victory Liquidity Banks’ respective amounts thereof,
provided,
      however,
      that
(a)
      the
      amount of the Aggregate Commitment may not be reduced below the Aggregate
      Principal unless accompanied by a prepayment pursuant to Section 1.5 in the
      amount necessary to ensure that the Aggregate Principal does not exceed the
      Aggregate Commitment, and (b)
      the
      amount of the Aggregate Commitment may not be reduced below $100,000,000 unless
      the Aggregate Commitment is terminated in full. All accrued and unpaid fees,
      including Broken Funding Costs, if any, shall be payable on the effective date
      of any termination of the Aggregate Commitment. Each Commitment
      Reduction Notice shall
      be
      irrevocable once delivered to the Co-Agents.

     

    (b)
      At
      any time prior to the Facility Termination Date while the Aggregate Commitment
      is less than $350,000,000, Borrower may request an increase in the Aggregate
      Commitment up to an amount not to exceed $350,000,000, ratably between the
      Groups (except as provided in the last sentence of this Section 1.6(b)), in
      a
      minimum amount of $10,000,000 (or a larger integral multiple of $1,000,000),
      upon at least fifteen (15) Business Days’ written notice to the Co-Agents in the
      form of Exhibit VII-2 hereto (each, a “Commitment
      Increase Request”),
      which
      request shall specify the aggregate amount of any such increase and the VFCC
      Liquidity Banks’ and Victory Liquidity Banks’ proposed respective amounts
      thereof. On or within fifteen (15) Business Days after its receipt of a
      Commitment Increase Request, each of the Co-Agents shall notify Borrower in
      writing in the form of Exhibit VII-3 hereto (each, a “Commitment
      Increase Response”)
      as to
      whether the Liquidity Banks in its Group, in their sole and absolute discretion,
      will agree to such Group’s requested increase in whole or in part. Failure by
      either Co-Agent to issue a Commitment Increase Response within such fifteen
      (15)
      Business Day period shall be deemed to constitute a denial by such Co-Agent’s
      Group. If either of the Co-Agents issues a Commitment Increase Response that
      is
      affirmative, in whole or in part, the agreed portion of the increase requested
      from its Group will become effective on the 

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    fifteenth
      (15th)
      Business Day after the date of the applicable Commitment Increase Request.
      If
      either of the Co-Agents issues a Commitment Increase Response that is negative,
      in whole or in part, or fails to issue a timely Commitment Increase Response,
      Borrower may request the other Co-Agent’s Group to agree to the declined portion
      of such increase by issuing another Commitment Increase Request pursuant to
      this
      Section 1.6(b).

     

    (c)
      If
      Borrower requests more than two changes in the Aggregate Commitment pursuant
      to
      this Section 1.6 after August 9, 2006, no such change shall become effective
      unless and until Borrower has paid each of the Co-Agents whose Liquidity Banks
      provide an increase in their Commitments, a fully-earned and nonrefundable
      administrative fee of $5,000 each in immediately available funds.

     

    1.3.    Section
      14.5(b) of the Credit and Security Agreement is hereby amended and restated
      in
      its entirety to read as follows:

     

    (b) Anything
      herein to the contrary notwithstanding, each Loan Party hereby consents to
      the
      disclosure of any nonpublic information with respect to it (i)
      to
      any
      Agent, the Liquidity Banks, any Conduit and any credit enhancer of any Conduit
      (but in accordance with the customary practices of the disclosing parties),
      by
      each other, (ii)
      by
      any
      Agent, any Lender or any credit enhancer of any Conduit to any prospective
      or
      actual assignee or participant of any of them (but in accordance with the
      customary practices of the disclosing parties), and (iii)
      by
      any
      Agent or any credit enhancer of any Conduit to any rating agency, commercial
      paper dealer or provider of a surety, guaranty or credit or liquidity
      enhancement to any Conduit, any credit enhancer of any Conduit (but in
      accordance with the customary practices of the disclosing parties) or any entity
      organized for the purpose of purchasing, or making loans secured by, financial
      assets for which Wachovia or BTMU acts as the administrative agent and to any
      officers, directors, employees, investors, potential investors, outside
      accountants and attorneys and other advisors of any of the foregoing if they
      agree to hold such information confidential (it being understood that in the
      case of any disclosure to investors, potential investors and any advisors of
      the
      foregoing, such disclosure will be in accordance with the customary practices
      of
      the disclosing party and will not identify any Originator or any Affiliate
      thereof by name), provided
      that,
      in each
      case, each such Person is informed of the confidential nature of such
      information and agrees to maintain the confidential nature of such information.
      In addition, the Lenders, the Agents and any credit enhancer of any Conduit
      may
      disclose any such nonpublic information pursuant to any law, rule, regulation,
      direction, request or order of any judicial, administrative or regulatory
      authority or proceedings (whether or not having the force or effect of law);
      provided
      that
      the
      Lenders, the Agents and any such credit enhancer shall promptly notify the
      applicable Loan Party of any such disclosure, except if such disclosure is
      in
      relation to (A) a routine audit or review by state or Federal authority or
      examiner or (B) routine periodic reporting to such state or Federal authorities
      or examiners in the normal course of business.

     

    1.4.    The
      Credit and Security Agreement is hereby amended to add Exhibits VII-1, VII-2
      and
      VII-3 thereto in the form of Annexes 1, 2 and 3, respectively, to this
      Amendment.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    2.    Conditions
      Precedent to Effectiveness.
      The
      effectiveness of this Amendment is subject to the conditions precedent
      that:

     

    (a)    The
      Agents shall have received counterparts hereof duly executed by each of the
      parties hereto, and

     

    (b)    Victory
      shall have received counterparts of an amendment to the Victory Liquidity
      Agreement extending the term thereof through August 8, 2007, and

     

    (c)    VFCC
      shall have received counterparts of an amendment to the VFCC Liquidity Agreement
      extending the term thereof through August 8, 2007.

     

    The
      signatures of Victory and VFCC on counterparts of this Amendment shall
      constitute confirmation that conditions (b) and (c), respectively, have been
      satisfied.

     

    3.    Scope
      of Amendment.
      Except
      as expressly amended hereby, the Credit and Security Agreement remains in full
      force and effect in accordance with its terms and this Amendment shall not
      by
      implication or otherwise alter, modify, amend or in any way affect any of the
      other terms, conditions, obligations, covenants or agreements contained in
      the
      Credit and Security Agreement, all of which are ratified and affirmed in all
      respects and shall continue in full force and effect. 

     

    4.    Governing
      Law.
      This
      Amendment shall be governed by and construed in accordance with the laws of
      the
      State of New York.

     

    5.    Counterparts.
      This
      Amendment may be executed in any number of counterparts and each of such
      counterparts shall for all purposes be deemed an original, and all such
      counterparts shall together constitute but one and the same
      instrument.

     

    <Signature
      pages follow>

    



    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF,
      the
      parties hereto have caused this Amendment to be executed and delivered by their
      duly authorized officers as of the date hereof.

     

    
 

    
      	 	 	 
	 	BOSTON
              SCIENTIFIC
              FUNDING CORPORATION
	 
 	 
 	 
 
	 	By:  	 
	 	
              
Name:
	 	Title: 


    

     

    
      
 

      
        	 	 	 
	 	
                BOSTON
                  SCIENTIFIC CORPORATION,
                  as
                  Servicer

              
	 
 	 
 	 
 
	 	By:  	 
	 	
                
Name:
	 	Title: 


      

       

       

       

       

       

       

       

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

    

    
 

    
      
        	 	 	 
	 	
                VARIABLE
                  FUNDING CAPITAL COMPANY LLC

              
	 	 
	 	
                BY:
                  WACHOVIA CAPITAL MARKETS, LLC, ITS
                  ATTORNEY-IN-FACT

              
	 
 	 
 	 
 
	 	By:  	 
	 	
                
Name:
	 	Title: 


      

       

    

    
      
        
          	 	 	 
	 	
                  
                    WACHOVIA
                      BANK,
                      NATIONAL ASSOCIATION, 

                  

                
	 	individually
                  as
                  a Liquidity
                  Bank,
                  as VFCC Agent and as Administrative Agent 
	 	
                   

                
	 
 	 
 	 
 
	 	By:  	 
	 	
                  
Name:
	 	Title: 


        

         

      

    

     

    


    


    


     

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    


    
      
        
          	 	 	 
	 	
                  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: 


                

                 

              

            

             

          

        

      

      
 

    

    


     

     

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    


    Annex
      1

     

    EXHIBIT
      VII-1

    


    FORM
      OF COMMITMENT REDUCTION NOTICE

    


    ---

     

    [Borrower’s
      Name]

     

    


     

    COMMITMENT
      REDUCTION NOTICE

     

    Date: __________________

     

    
      	To:	
              Wachovia
                Bank,
                National Association, as VFCC Agent,
                and

            


    

    The
      Bank
      of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as Victory Agent

    


    Ladies
      and
      Gentlemen:

     

    Reference
      is
      made
      to the Credit
      and Security Agreement dated
      as
      of August
      16, 2002 (as
      amended, supplemented or otherwise modified from time to time, the “Credit
      Agreement”)
      among
      Boston Scientific Funding Corporation, a Delaware corporation (the “Borrower”),
      Boston
      Scientific Corporation,
      a
      Delaware corporation as initial Servicer,
      Variable Funding Capital Company LLC,
      Victory
      Receivables Corporation,
      various
      Liquidity Banks, The
      Bank
      of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as a Co-Agent,
      and Wachovia
      Bank, National Association,
      as a
Co-Agent
      and Administrative Agent. Capitalized terms defined in the Credit
      Agreement are
      used
      herein with the same meanings.

     

    1.
      The
[Servicer,
      on behalf of the] Borrower
      hereby
      irrevocably notifies the Co-Agents of the following reduction in the Aggregate
      Commitment:

     

    (a) Amount
      of
      Aggregate Commitment in effect on the date hereof: $__________

     

    (b) Aggregate
      Reduction requested:  $___________

     

    (i) VFCC
      Group’s amount of reduction: $___________

     

    (ii) Victory
      Group’s amount of reduction: $___________

     

    (c) Effective
      date of reduction: __________________, 20__ (which date is not less than five
      (5) Business Days after the date hereof).

     

    (d) Amount
      of
      Aggregate Commitment that will be in effect after giving effect to the foregoing
      Aggregate Reduction: $__________

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    (i) VFCC
      Group’s amount of revised Aggregate Commitment: $___________

     

    (ii) Victory
      Group’s amount of revised Aggregate Commitment: $___________

     

    2.
      The
[Servicer,
      on behalf of the] Borrower
      hereby
      certifies to the Co-Agents as follows:

     

    (a) An
      administrative fee of $5,000 in immediately available funds is [not] payable
      to
      the undersigned in connection with this decrease; and

     

    (b) After
      giving effect to the foregoing reduction in the Aggregate
      Commitment:

     

    (i)
      The
      amount of the Aggregate Commitment will not have been reduced below the
      Aggregate Principal unless accompanied by a prepayment pursuant to Section
      1.5
      of the Credit Agreement in the amount necessary to ensure that the Aggregate
      Principal does not exceed the Aggregate Commitment;

     

    (ii)
      The
      amount of the Aggregate Commitment will not be less than $100,000,000 unless
      the
      Aggregate Commitment is terminated in full; and

     

    (iii)
      All
      accrued and unpaid fees, including Broken Funding Costs, if any, shall be
      payable on the effective date of any termination of the Aggregate
      Commitment.

     

    IN
      WITNESS
      WHEREOF, the
      [Servicer,
      on behalf of the] Borrower
      has
      caused this Commitment Reduction Notice to
      be
      executed and delivered as of this ____ day of ___________,
      _____.

     

    
      	 	 	 
	 	[_______________________,
              as Servicer, on behalf of:]  
	 	
              _________________________,
                as Borrower

            
	 
 	 
 	 
 
	 	By:  	 
	 	
              
Name:
	 	Title: 


    

     

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    Annex
      2

     

    EXHIBIT
      VII-2

    


    FORM
      OF COMMITMENT INCREASE REQUEST

    


    ---

     

    [Borrower’s
      Name]

     

    


     

    COMMITMENT
      INCREASE REQUEST

     

    Date:
      __________________

     

    
      	To:	
              Wachovia
                Bank, National Association, as VFCC Agent,
                and

            


    

    The
      Bank
      of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as Victory Agent

    


    Ladies
      and Gentlemen:

     

    Reference
      is made to the Credit and Security Agreement dated as of August
      16, 2002 (as
      amended, supplemented or otherwise modified from time to time, the “Credit
      Agreement”)
      among
      Boston Scientific Funding Corporation, a Delaware corporation (the “Borrower”),
      Boston
      Scientific Corporation,
      a
      Delaware corporation as initial Servicer, Variable Funding Capital Company
      LLC,
Victory
      Receivables Corporation,
      various
      Liquidity Banks, The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as
      a
Co-Agent,
      and Wachovia
      Bank, National Association,
      as a
Co-Agent
      and Administrative Agent. Capitalized terms defined in the Credit Agreement
      are
      used herein with the same meanings.

     

    1.
      The
[Servicer,
      on behalf of the] Borrower
      hereby
      requests the following increase in the Aggregate Commitment:

     

    (a) Amount
      of
      Aggregate Commitment in effect on the date hereof: $__________

     

    (b) Aggregate
      increase requested:  $___________

     

    (i) VFCC
      Group’s amount of requested increase: $___________

     

    (ii) Victory
      Group’s amount of requested increase: $___________

     

    (c) If
      approved, effective date of increase: __________________, 20__ (which date
      is
      not less than fifteen (15) Business Days after the date hereof).

     

    (d) Amount
      of
      Aggregate Commitment that will be in effect after giving effect to the foregoing
      aggregate increase: $__________

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    (i) VFCC
      Group’s amount of revised Aggregate Commitment: $___________

     

    (ii) Victory
      Group’s amount of revised Aggregate Commitment: $___________

     

    2. The
      [Servicer,
      on behalf of the] Borrower
      hereby
      certifies, represents and warrants to the Agents and the Lenders that on and
      as
      of the effective date of the requested increase in Aggregate
      Commitment:

     

    (a) each
      of
      its representations and warranties contained in Section 6.1 of the Credit
      Agreement will
      be
      true and correct, in all material respects, as if made on and as of such
      effective date; provided,
      however, that
      so
      long as each of the Liquidity Banks remains a party to the BSX Credit Agreement,
      in no event will any Loan Party be required to “bring-down” its representation
      in Section 6.1(b) or 6.1(g);

     

    (b) no
      event
      will have occurred and is continuing, or would result from the requested
      increase that constitutes an Amortization Event or Unmatured Amortization
      Event;

     

    (c) the
      Termination Date has not occurred; and

     

    (d) an
      administrative fee of $5,000 in immediately available funds is [not] payable
      to
      the undersigned in connection with this increase.

     

    IN
      WITNESS WHEREOF, the
      [Servicer,
      on behalf of the] Borrower
      has
      caused this Commitment Increase Request to
      be
      executed and delivered as of this ____ day of ___________, _____.

     

    
       

      
        	 	 	 
	 	[_______________________,
                as Servicer, on behalf of:]  
	 	
                _________________________,
                  as Borrower

              
	 
 	 
 	 
 
	 	By:  	 
	 	
                
Name:
	 	Title: 


      

       

       

       

       

       

    


    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    


    


     

    Annex
      3

     

    EXHIBIT
      VII-3

    


    FORM
      OF COMMITMENT INCREASE RESPONSE

    


    ---

     

    [VFCC/Victory]
      Group

     

    


     

    COMMITMENT
      INCREASE RESPONSE

     

    Date:
      __________________

     

    
      	To:	
              Boston
                Scientific Funding Corporation,
                and

            


    

    Boston
      Scientific Corporation, as Servicer

    


    


    Ladies
      and Gentlemen:

     

    Reference
      is made to the Credit and Security Agreement dated as of August
      16, 2002 (as
      amended, supplemented or otherwise modified from time to time, the “Credit
      Agreement”)
      among
      Boston Scientific Funding Corporation, a Delaware corporation (the “Borrower”),
      Boston
      Scientific Corporation,
      a
      Delaware corporation as initial Servicer, Variable Funding Capital Company
      LLC,
Victory
      Receivables Corporation,
      various
      Liquidity Banks, The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as
      a
Co-Agent,
      and Wachovia
      Bank, National Association,
      as a
Co-Agent
      and Administrative Agent. Capitalized terms defined in the Credit Agreement
      are
      used herein with the same meanings.

     

    1.
      On
      _____________, 20__, you requested that the [VFCC/Victory] Group increase its
      share of the Aggregate Commitment by $______________ (the “Group’s
      Requested Increase Share”)
      effective on __________________, 20__ (the “Increase
      Effective Date”).

     

    2.
      Please
      be advised that the [VFCC/Victory] Group is agreeable to increasing its share
      of
      the Aggregate Commitment by $__________ [insert a dollar amount from and
      including $0 to and including an amount equal to the Group’s Requested Increase
      Share] on the Increase Effective Date. 

     

    
      
        
        

      

      
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    3.
      An
      administrative fee of $5,000 in immediately available funds is [not] payable
      to
      the undersigned in connection with this increase.

     

    
      	 	 	 
	 	Very truly yours, 
	 	 
	 	 
	 	[CO-AGENT’S
              NAME],
              as [VFCC/Victory] Agent
	 
 	 
 	 
 
	 	By:  	/s/ 
	 	
              
Name:
	 	Title: 


    

     

    
      
        	 	 	 
	 	 
	 	 
	 
 	 
 	 
 
	 	[By:  	/s/ 
	 	
                
Name:
	 	Title:] 


      

       

       

       

       

      
        
          
          

        

        
          13