EIGHTH AMENDMENT TO RECEIVABLES PURCHASEAGREEMENT
Exhibit 10.1
EIGHTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
THIS EIGHTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT, dated as of September 19, 2006 (this “Amendment”), is by and among Edwards Lifesciences Financing LLC, a Delaware limited liability company (“Seller”), Edwards Lifesciences LLC, a Delaware limited liability company (“Servicer”), Variable Funding Capital Company LLC, a Delaware limited liability company (“VFCC”) as assignee of Blue Ridge Asset Funding Corporation, the liquidity banks from time to time party to the Liquidity Agreement (the “Liquidity Banks;” together with VFCC, the “Purchasers”) and Wachovia Bank, National Association, as agent for the Purchasers (the “Agent”), and pertains to the Receivables Purchase Agreement dated as of December 21, 2000 amongst the parties hereto (as heretofore and hereby amended, the “Purchase Agreement”). Unless otherwise defined in this Amendment capitalized terms used herein shall have the meanings assigned to such terms in the Purchase Agreement.
PRELIMINARY STATEMENTS
WHEREAS, the Seller wishes to make certain amendments to the Purchase Agreement; and
WHEREAS, the Agent and the Purchasers are willing to agree to such amendments.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendments. The Purchase Agreement is hereby amended as follows:
(a) All references in the Purchase Agreement to “Blue Ridge Asset Funding Corporation” and “Blue Ridge” are hereby replaced with “Variable Funding Capital Company LLC” and “VFCC,” respectively.
(b) Sections 13.4(b) and (c) of the Purchase Agreement are hereby combined, amended and restated in their entirety to read as follows:
(b) Each of the Agent and the Purchasers shall maintain and shall cause each of its employees and officers to maintain the confidentiality of this Agreement and the other nonpublic, confidential or proprietary information with respect to the Seller and the Originator and their respective businesses obtained by it or them in connection with the structuring, negotiating, execution and administration of the transactions contemplated herein, except that such information may be disclosed: (i) to the Agent, the Liquidity Banks or VFCC by each other, (ii) to any prospective or actual assignee or participant of the Agent or any Purchaser, (iii) to any provider of a surety, guaranty or credit or liquidity enhancement to VFCC or any entity organized for the purpose of purchasing, or making loans secured by, financial assets for which Wachovia acts as the administrative agent (each, an “Enhancer”), (iv) to any rating agency or
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Commercial Paper dealer, or (v) to any officers, directors, employees and/or external accountants, attorneys, consultants and advisors of any of the foregoing, provided that each such Person is informed of the confidential nature of such information. In addition, each of the Agent, the Purchasers and the Enhancers may disclose any such nonpublic information to its external accountants, attorneys, consultants and advisors and 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).
(c) The definition of “Default Horizon Ratio” set forth in Exhibit I to the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“Default Horizon Ratio” means, as of any Cut-Off Date, the ratio (expressed as a decimal) computed by dividing (i) the aggregate sales generated by the Originator during the five (5) Calculation Periods ending on such Cut-Off Date, by (ii) the Net Pool Balance as of such Cut-off Date.
(d) Clause (iii) of the definition of “Eligible Receivable” set forth in Exhibit I to the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
(iii) which is not a Defaulted Receivable or owing from an Obligor as to which more than 50% of the aggregate Outstanding Balance of all Receivables owing from such Obligor are Defaulted Receivables,
(e) The definition of “Liquidity Termination Date” set forth in Exhibit I to the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“Liquidity Termination Date” means the earlier to occur of (a) September 18, 2007, and (b) the date on which a Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, and either (i) the Downgraded Liquidity Bank shall not have been replaced by an Eligible Assignee pursuant to the Liquidity Agreement or (ii) the Liquidity Commitment of such Downgraded Liquidity Bank shall not have been funded or collateralized in such a manner that will avoid a reduction in or withdrawal of the credit rating applied to the Commercial Paper to which such Liquidity Agreement applies by any of the rating agencies then rating such Commercial Paper.
(f) The table in the definition of “Obligor Concentration Limit” set forth in Exhibit I to the Purchase Agreement is hereby amended to replace “2%” where it appears in the bottom right-hand cell therein with “1.5%”.
(g) The definition of “Required Reserve Factor Floor” set forth in Exhibit I to the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“Required Reserve Factor Floor” means, for any Calculation Period, the sum (expressed as a percentage) of (a) 14.0% plus (b) the product of the Adjusted Dilution Ratio and Dilution Horizon Ratio, in each case, as of the immediately preceding Cut-Off Date.
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2. Representations and Warranties. In order to induce VFCC and the Agent, on behalf of the other Purchasers, to enter into this Amendment, each of the Seller Parties hereby represents and warrants to VFCC and the Agent, on behalf of the other Purchasers, as follows:
(a) The execution and delivery by such party of this Amendment, and the performance of its obligations under the Purchase Agreement as amended hereby, are within such party’s organizational powers and authority and have been duly authorized by all necessary organizational action on its part;
(b) This Amendment has been duly executed and delivered by such party, and the Purchase Agreement, as amended hereby, constitutes such party’s legal, valid and binding obligation, enforceable against such party in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and
(c) As of the date hereof, no event has occurred and is continuing that will constitute an Amortization Event or an Unmatured Amortization Event.
3. Conditions Precedent. This Amendment shall become effective as of the date first above written upon:
(a) execution and delivery to the Agent of a counterpart hereof by each of the parties hereto, and
(b) execution and delivery to the Agent of a counterpart of a sixth amended and restated Fee Letter by each of the parties thereto, and payment to the Agent of any fees due and owing on the date hereof.
4. Miscellaneous.
(a) CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.
(b) Counterparts. This Amendment 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.
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(c) Ratification of Purchase Agreement. Except as expressly amended hereby, the Purchase Agreement remains unaltered and in full force and effect and is hereby ratified and confirmed.
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.
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| EDWARDS LIFESCIENCES FINANCING LLC | ||||
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| By: | /s/ Thomas M. Abate |
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| Name: | Thomas M. Abate | |||
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| Title: | Corporate Vice President, | |||
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| Chief Financial Officer and Treasurer | |||
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| EDWARDS LIFESCIENCES LLC | ||||
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| By: | /s/ Thomas M. Abate |
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| Name: | Thomas M. Abate | |||
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| Title: | Corporate Vice President, | |||
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| Chief Financial Officer and Treasurer | |||
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| VARIABLE FUNDING CAPITAL COMPANY | ||||||
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| LLC | |||||
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| BY: WACHOVIA CAPITAL MARKETS, LLC, ITS | ||||||
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| By: | /s/ Douglas R. Wilson |
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| Name: | Douglas R. Wilson | |||||
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| Title: | Sr. Vice President | |||||
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| WACHOVIA BANK, NATIONAL | ||||||
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| By: | /s/ Elizabeth R. Wagner |
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| Name: | Elizabeth R. Wagner | |||||
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| Title: | Managing Director | |||||
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