Exhibit 10.36
CREDIT AGREEMENT
AMONG
GENZYME CORPORATION,
THE SUBSIDIARY GUARANTORS PARTY HERETO,
THE LENDERS PARTY HERETO,
AND
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT,
ABN AMRO BANK N.V.,
AS SYNDICATION AGENT
AND THE BANK OF NOVA SCOTIA, CITIZENS BANK OF MASSACHUSETTS AND WACHOVIA
BANK, NATIONAL ASSOCIATION,
AS CO-DOCUMENTATION AGENTS
DATED: DECEMBER 10, 2003
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS--------------------------------------------------------------2
1.1 Certain Defined Terms--------------------------------------------------------------------------------2
1.2 Accounting Terms and Determinations-----------------------------------------------------------------19
1.3 Types of Loans--------------------------------------------------------------------------------------19
SECTION 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS------------------------------------------------------19
2.1 Revolving Credit Loans------------------------------------------------------------------------------19
2.2 Borrowings of Revolving Credit Loans----------------------------------------------------------------20
2.3 Changes of Commitments------------------------------------------------------------------------------20
2.4 Facility Fee----------------------------------------------------------------------------------------21
2.5 Lending Offices-------------------------------------------------------------------------------------21
2.6 Several Obligations; Remedies Independent-----------------------------------------------------------21
2.7 Notes-----------------------------------------------------------------------------------------------21
2.8 Optional Prepayments and Conversions or Continuations of Loans--------------------------------------22
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST-------------------------------------------------------------22
3.1 Repayment of Loans----------------------------------------------------------------------------------22
3.2 Interest--------------------------------------------------------------------------------------------22
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.-----------------------------------------------23
4.1 Payments--------------------------------------------------------------------------------------------23
4.2 Pro Rata Treatment----------------------------------------------------------------------------------25
4.3 Computations----------------------------------------------------------------------------------------25
4.4 Minimum Amounts-------------------------------------------------------------------------------------25
4.5 Certain Notices-------------------------------------------------------------------------------------26
4.6 Non-Receipt of Funds by the Administrative Agent; Delinquent Lenders--------------------------------27
4.7 Sharing of Payments, Etc.---------------------------------------------------------------------------28
SECTION 5. YIELD PROTECTION, ETC.-------------------------------------------------------------------------30
5.1 Additional Costs------------------------------------------------------------------------------------30
5.2 Limitation on Types of Loans------------------------------------------------------------------------32
5.3 Illegality------------------------------------------------------------------------------------------33
5.4 Treatment of Affected Loans-------------------------------------------------------------------------33
5.5 Compensation----------------------------------------------------------------------------------------33
5.6 Rate Selection--------------------------------------------------------------------------------------34
SECTION 6. GUARANTEE--------------------------------------------------------------------------------------35
6.1 Guarantee-------------------------------------------------------------------------------------------35
6.2 Obligations Unconditional---------------------------------------------------------------------------35
6.3 Reinstatement---------------------------------------------------------------------------------------36
6.4 Subrogation-----------------------------------------------------------------------------------------36
6.5 Remedies--------------------------------------------------------------------------------------------37
6.6 Continuing Guarantee--------------------------------------------------------------------------------37
6.7 Rights of Contribution------------------------------------------------------------------------------37
6.8 Limitation on Guarantee Obligations-----------------------------------------------------------------37
SECTION 7. CONDITIONS PRECEDENT---------------------------------------------------------------------------38
7.1 Initial Loan----------------------------------------------------------------------------------------38
7.2 Initial and Subsequent Extensions of Credit---------------------------------------------------------40
SECTION 8. REPRESENTATIONS AND WARRANTIES-----------------------------------------------------------------40
8.1 Existence-------------------------------------------------------------------------------------------41
8.2 Financial Condition---------------------------------------------------------------------------------41
8.3 Litigation------------------------------------------------------------------------------------------41
8.4 No Breach-------------------------------------------------------------------------------------------42
8.5 Action----------------------------------------------------------------------------------------------42
8.6 Approvals------------~------------------------------------------------------------------------------42
8.7 Use of Credit---------------------------------------------------------------------------------------42
8.8 ERISA-----------------------------------------------------------------------------------------------42
8.9 Taxes-----------------------------------------------------------------------------------------------43
8.10 Investment Company Act------------------------------------------------------------------------------43
8.11 Public Utility Holding Company Act------------------------------------------------------------------43
8.12 Borrowing Agreements and Liens----------------------------------------------------------------------43
8.13 Compliance with Laws Including Environmental and Safety Matters-------------------------------------44
8.14 Subsidiaries, Etc.----------------------------------------------------------------------------------44
8.15 Title to Assets; Etc.-------------------------------------------------------------------------------44
8.16 Intellectual Property Rights------------------------------------------------------------------------45
8.17 True and Complete Disclosure------------------------------------------------------------------------45
SECTION 9. COVENANTS OF THE COMPANY-----------------------------------------------------------------------45
9.1 Financial Statements Etc.---------------------------------------------------------------------------45
9.2 Litigation------------------------------------------------------------------------------------------48
9.3 Existence, Etc.-------------------------------------------------------------------------------------48
9.4 Insurance-------------------------------------------------------------------------------------------49
9.5 Prohibition of Fundamental Changes------------------------------------------------------------------49
9.6 Limitation on Liens---------------------------------------------------------------------------------51
9.7 Indebtedness----------------------------------------------------------------------------------------52
9.8 Investments-----------------------------------------------------------------------------------------54
9.9 Financial Covenants---------------------------------------------------------------------------------54
9.10 Lines of Business-----------------------------------------------------------------------------------54
9.11 Use of Proceeds-------------------------------------------------------------------------------------55
9.12 Certain Obligations Respecting Company and Subsidiaries---------------------------------------------55
9.13 Additional Subsidiary Guarantors--------------------------------------------------------------------56
9.14 Subordinated Debt-----------------------------------------------------------------------------------56
SECTION 10. EVENTS OF DEFAULT------------------------------------------------------------------------------56
SECTION 11. THE AGENTS-------------------------------------------------------------------------------------60
11.1 Appointment, Powers and Immunities.-----------------------------------------------------------------60
11.2 Reliance by Agents----------------------------------------------------------------------------------61
11.3 Defaults--------------------------------------------------------------------------------------------61
11.4 Rights as a Lender----------------------------------------------------------------------------------61
11.5 Indemnification-------------------------------------------------------------------------------------62
11.6 Non-Reliance on Agents and Other Lenders------------------------------------------------------------62
11.7 Failure to Act--------------------------------------------------------------------------------------63
11.8 Resignation or Removal of Agents--------------------------------------------------------------------63
11.9 Consents under Other Loan Documents-----------------------------------------------------------------63
SECTION 12. MISCELLANEOUS----------------------------------------------------------------------------------63
12.1 Waiver----------------------------------------------------------------------------------------------64
12.2 Notices---------------------------------------------------------------------------------------------64
12.3 Expenses, Etc.--------------------------------------------------------------------------------------64
12.4 Indemnification-------------------------------------------------------------------------------------65
12.5 Amendments, Etc.------------------------------------------------------------------------------------65
12.6 Successors and Assigns------------------------------------------------------------------------------66
12.7 Assignments and Participations----------------------------------------------------------------------66
12.8 Survival--------------------------------------------------------------------------------------------68
12.9 Captions--------------------------------------------------------------------------------------------68
12.10 Counterparts--------------------------------------------------------------------------------------68
12.11 Governing Law; Submission to Jurisdiction---------------------------------------------------------68
12.12 Waiver of Jury Trial------------------------------------------------------------------------------69
12.13 Confidentiality-----------------------------------------------------------------------------------69
12.14 Compliance with Usury Laws------------------------------------------------------------------------70
12.15 Replacement Note----------------------------------------------------------------------------------71
Schedules:
Schedule 8.3 Litigation
Schedule 8.12A
Credit Agreements, Indentures, Guarantees, Letters of
Credit, Etc.
Schedule 8.12B Liens Securing Indebtedness
Schedule 8.14 Subsidiaries
Schedule 9.7(b) Excluded Indebtedness
Exhibits:
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Legal Opinion
Exhibit C Form of Compliance Certificate
Exhibit D Form of Joinder Agreement
Exhibit E Form of Notice of Assignment
Exhibit F Form of Pledge Agreement
Exhibit G Form of Notice of Borrowing
Exhibit H Form of Notice of Conversion/Continuation
Exhibit I Form of Notice of Prepayment
CREDIT AGREEMENT
CREDIT AGREEMENT ("Agreement" or "
Credit Agreement") dated as of December
10, 2003 among and between:
GENZYME CORPORATION, a corporation duly organized and validly existing
under the laws of The Commonwealth of
Massachusetts (together with its permitted
successors and assigns, the "Company");
Each of the Subsidiaries of the Company identified under the caption
"SUBSIDIARY GUARANTORS" on the signature pages hereto or that may hereafter
become a "Subsidiary Guarantor" pursuant to Section 9.13 hereof (together with
its permitted successors and assigns, individually, a "SUBSIDIARY GUARANTOR"
and, collectively, the "SUBSIDIARY GUARANTORS" and, together with the Company,
the "OBLIGORS");
Each of the lenders identified under the caption "LENDERS" on the signature
pages hereto or that may hereafter become a "Lender" pursuant to Section 12.7(b)
hereof (together with its successors and permitted assigns, individually, a
"LENDER" and, collectively, the "Lenders"); and
FLEET NATIONAL BANK ("FLEET") as administrative agent for the Lenders (in
such capacity, together with the successors in such capacity, the
"ADMINISTRATIVE AGENT");
ABN AMRO Bank N.V. ("ABN AMRO") as syndication agent for the Lenders (in
such capacity, together with the successors in such capacity, the "Syndication
Agent"); and
THE BANK OF NOVA SCOTIA ("NOVA SCOTIA"), CITIZENS BANK OF
MASSACHUSETTS
("CITIZENS") and WACHOVIA BANK, NATIONAL ASSOCIATION ("WACHOVIA") as
co-documentation agents for the Lenders (in such capacity, together with the
successors in such capacity, the "Co-Documentation Agents" and together with the
Administrative Agent and the Syndication Agent, the "AGENT" or "AGENTS").
The Company has requested that the Lenders extend credit to the Company in
an aggregate principal or stated amount not exceeding $350,000,000.00; and
To induce the Lenders to extend such credit, the Obligors, the Lenders and
the Agents propose to enter into this Agreement pursuant to which, INTER ALIA,
(1) the Lenders will make loans to the Company and (2) each Subsidiary Guarantor
will guarantee the credit so extended to the Company. Each of the Obligors
expects to derive benefit, directly or indirectly, from the credit so extended
to the Company, both in its separate capacity and as a member of the integrated
group, since the successful operation of each of the Obligors is dependent on
the continued successful performance of the functions of the integrated group as
a whole.
Accordingly, the parties hereto agree as follows:
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Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.1. CERTAIN DEFINED TERMS. As used herein, the following terms shall
have the following meanings (all terms defined in this Section 1.1 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and VICE VERSA).
"ACCOUNTS RECEIVABLE" shall mean, on any date, the net amount of accounts
receivable of Company and its Consolidated Subsidiaries, excluding any such
accounts which are more than 120 days old, after deducting all returns,
discounts and allowances thereon and reserves relating thereto, determined in
accordance with GAAP.
"ADJUSTED LIBO RATE" shall mean, for any LIBOR Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
Administrative Agent to be equal to the rate of interest specified in the
definition of "LIBO Rate" in this Section 1.1 for the Interest Period for such
Loan divided by 1 minus the Reserve Requirement (if any) for such Loan for such
Interest Period.
"ADMINISTRATIVE AGENT" shall have the meaning given such term in the
preamble hereto, as it may be amended, modified, or changed from time to time.
"AFFILIATE" shall mean any Person that directly or indirectly controls, or
is under common control with, or is controlled by a designated Person and, if
such designated Person is an individual, any member of the immediate family
(including parents, spouse, children and siblings) of such individual and any
trust whose principal beneficiary is such individual or one or more members of
such immediate family and any Person who is controlled by any such member or
trust. As used in this definition, "CONTROL" (including, with its correlative
meanings, "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise), or that, in any event,
any Person that owns directly or indirectly securities having 33% or more of the
voting power for the election of directors or other governing body of a
corporation or 33% or more of the partnership or other ownership interests of
any other Person will be deemed to control such corporation, partnership or
other Person. Notwithstanding the foregoing, (a) the Company and its
Subsidiaries shall not be Affiliates of each other and (b) neither any Agent nor
any Lender shall be an Affiliate of the Company or any of its Subsidiaries.
"AGENTS" shall have the meaning given in the preamble hereto, as it may be
amended, modified or changed from time to time.
"APPLICABLE FACILITY FEE RATE" shall mean, for any period during which the
Company has a Debt Rating as set forth below, the percentage set forth below
opposite the applicable Debt Rating as set forth below under the caption
"APPLICABLE FACILITY FEE RATE", and "APPLICABLE MARGIN" shall mean, for any
period set forth below for either Type of Loan set forth below, the percentage
set forth below opposite such period under the caption "APPLICABLE MARGIN" and
under the caption for such Type of Loan:
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Applicable Margin
Debt Rating (by Standard ------------------------------------------
&Poor's and Moody's Investors Prime Rate Applicable Facility
Service, respectively) Loans LIBOR Loans Fee Rate
--------------------------------------------------------------------------------------------------------------
Level I: if equal to or greater 0.000% 0.375% 0.125%,
than either A- or A3
Level II: if less than both A- and A3, 0.000% 0.475% 0.150%
but equal to or greater than either
BBB+ or Baa1
Level III: if less than both BBB+ 0.000% 0.550% 0.200%
and Baa1, but equal to or greater
than either BBB or Baa2
Level IV: if less than both BBB and 0.000% 0.750% 0.250%
Baa2, but equal to or greater than
either BBB- or Baa3
Level V: if less than both BBB- and 0.000% 1.000% 0.375%
Baa3, but equal to or greater than
either BB+ or Ba1
Level VI: if less than both BB+ and 0.000% 1.500% 0.500%
Ba1
PROVIDED, HOWEVER, that:
(a) (i) in the event of a split rating by Standard & Poor's and
▇▇▇▇▇'▇ Investors Service with respect to the same Long Term
Senior Debt where such ratings differ only by one level, the
higher rating shall determine the Applicable Margin and the
Applicable Facility Fee Rate;
(ii) in the event of a split rating by the two rating agencies
with respect to the same Long Term Senior Debt where such ratings
differ by more than one level, the rating level that is one level
above the lower level shall determine the Applicable Margin and
the Applicable Facility Fee Rate;
(iii) in the event that only one of the two rating agencies
issues a Debt Rating, such rating shall determine the Applicable
Margin and the Applicable Facility Fee Rate;
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(iv) in the event that different types or series of Long Term
Senior Debt have different Debt Ratings, the Long Term Senior
Debt with the highest Debt Ratings will be used to determine the
Applicable Margin and the Applicable Facility Fee Rate;
(v) determinations of the Applicable Margin and the
Applicable Facility Fee Rate, and any resulting adjustment of the
effective interest rate with respect to Prime Rate Loans and
LIBOR Loans and the facility fee described in Section 2.4 hereof,
shall be made on the same Business Day as any such change in the
Debt Rating (the "ADJUSTMENT DATE") and shall remain in effect
until the next Adjustment Date, and all adjustments shall take
effect on the applicable Adjustment Date; and
(vi) in the event that Standard & Poor's and ▇▇▇▇▇'▇ Investors
Service and any Successor Rating Agency cease to issue Debt
Ratings, the Administrative Agent, the Lenders and the Company
shall commence negotiations in good faith to agree on a new
methodology for determining the Applicable Margin and the
Applicable Facility Fee Rate and until such new methodology has
been agreed to in writing by the Company and the Lenders, the
Applicable Margin and the Applicable Facility Fee Rate shall be
at the highest level set forth above; and PROVIDED, FURTHER, in
the event that there is a Successor Rating Agency or there is a
change in rating terminology by Standard & Poor's or ▇▇▇▇▇'▇
Investor Service, each of the Company and the Required Lenders
shall agree as to the amendment of the table set forth above
taking into account the explanation of such new rating
terminology by Standard & Poor's, ▇▇▇▇▇'▇ Investors Service or
such Successor Rating Agency, as the case may be, and its
comparability to the Debt Ratings set forth in the table above;
(b) at all times prior to and including the first Adjustment Date
(other than any period when an Event of Default shall have
occurred and be continuing) Level III shall apply;
(c) (i) at all times after the Closing Date that outstanding
Loans exceed 50% of the aggregate amount of the Commitments AND
as to which Levels I, II or III apply, the Applicable Margin for
LIBOR Loans shall equal the sum of the percentage set forth above
opposite such period under the caption "LIBOR Loans," PLUS
0.125%;
(ii) at all times after the Closing Date that outstanding
Loans exceed 50% of the aggregate amount of the Commitments AND
as to which Level IV or Level V applies, the Applicable Margin
for LIBOR Loans shall equal the sum of the percentage set forth
above opposite such period under the caption "LIBOR Loans," PLUS
0.250%; and
- 4 -
(iii) at all times after the Closing Date that outstanding
Loans exceed 50% of the aggregate amount of the Commitments AND
as to which Level VI applies, the Applicable Margin for LIBOR
Loans shall equal the sum of the percentage set forth above
opposite such period under the caption "LIBOR Loans," PLUS
0.500%.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each Type
of Loan, the "Lending Office" of such Lender (or of an affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of such Lender (or of an affiliate of such Lender) as such Lender may
from time to time specify to the Administrative Agent and the Company as the
office by which its Loans of such Type are to be made and maintained.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BASIC ACCORD" shall mean the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
"BUSINESS DAY" shall mean (a) any day on which commercial banks are not
authorized or required to close in Boston,
Massachusetts and (b) if such day
relates to the giving of notices or quotes in connection with a borrowing of, a
payment or prepayment of principal of or interest on, a Conversion of or into,
or an Interest Period for, a LIBOR Loan or a notice by the Company with respect
to any such borrowing, payment, prepayment, Conversion or Interest Period, then
any day referred to in clause (a) that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, expenditures (including,
without limitation, the aggregate amount of Capital Lease Obligations incurred
during such period) made by the Company or any of its Subsidiaries to acquire or
construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs) during such period computed in
accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"CAPITAL STOCK" shall mean capital stock of the Company that does not rank
prior, as to the payment of dividends or as to the distribution of assets upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, to shares of capital stock of any other class of the Company.
- 5 -
"CASH EQUIVALENTS" shall mean any interest bearing investment of Company
and its Wholly Owned Subsidiaries which meets the definition of a "cash
equivalent" under GAAP (i.e., purchased with a remaining maturity of 90 days or
less). Such investments shall be at least investment grade (A1/P1 for commercial
paper, BBB or better for bonds and similar investments).
"CLOSING DATE" the date upon which the initial Loans hereunder are made.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"COMMITMENTS" shall mean the Revolving Credit Commitments.
"COMPANY" shall have the meaning given in the preamble, and its successors
and permitted assigns hereunder.
"COMPLIANCE CERTIFICATE" shall mean the compliance certificate provided for
under Section 9.1(c)(ii) in substantially the form of EXHIBIT C.
"CONSOLIDATED" shall mean, when used with reference to any term, that term
(or the term "combined" in the case of partnerships, joint ventures and
Affiliates of the Company that are not Subsidiaries) as applied to the accounts
of Company (or any other specified Person) and all of its Subsidiaries (or other
specified Persons) or such of its Subsidiaries as may be specified, consolidated
(or combined) in accordance with GAAP and with appropriate deductions for
minority interests in Subsidiaries, if required by GAAP.
"CONSOLIDATED FUNDED DEBT" shall mean, at any time, the outstanding balance
of all Indebtedness in respect of borrowed money, Capital Lease Obligations,
Synthetic Lease Obligations, letters of credit and trade acceptances for the
Company and its Consolidated Subsidiaries.
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, for any period, the
ratio of (a) EBITDA for such period to (b) all Interest Expense for such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, net income (or loss)
for the Company and its Consolidated Subsidiaries (determined in accordance with
GAAP), PROVIDED, HOWEVER, that Consolidated Net Income shall not include amounts
included in computing net income (or loss) in respect of extraordinary and
non-recurring gains or losses.
"CONSOLIDATED QUICK RATIO" shall mean, at any date, the ratio, for the
Company and its Consolidated Subsidiaries, of (a) the sum of (i) Unrestricted
Cash on such date PLUS (ii) Marketable Investments on such date PLUS (iii)
Accounts Receivable on such date to (b) the sum of (i) Current Liabilities on
such date, PLUS (ii) current Synthetic Lease Obligations.
"CONSOLIDATED TANGIBLE ASSETS" shall mean, at any date, all assets of the
Borrower and its Consolidated Subsidiaries other than Intangible Assets.
- 6 -
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the continuation
pursuant to Section 2.8 hereof of a LIBOR Loan from one Interest Period to the
next Interest Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.8 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion,
but subject to Section 5.l(d) hereof) of a Loan from one Applicable Lending
Office to another.
"CURRENT LIABILITIES" shall mean any liability that in accordance with GAAP
would be classified as such.
"DEBT RATING" shall mean at all relevant times of reference thereto, the
rating issued from time to time (whether on a preliminary basis or otherwise) by
Standard & Poor's or ▇▇▇▇▇'▇ Investors Service or such other rating service or
services as the Company may designate from time to time with the consent of the
Required Lenders (each a "Successor Rating Agency") with respect to unsecured
Indebtedness of the Company not maturing within twelve (12) months, the
repayment obligations of the Company thereunder are not supported or otherwise
enhanced by any other Person (including, without limitation, supported by any
letter of credit or other instrument, agreement or document issue by any other
Person) and not subordinated by its terms in right of payment to other unsecured
Indebtedness of the Company (such Indebtedness, the "Long Term Senior Debt").
"DEFAULT" shall mean an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"DIVIDEND PAYMENT" shall mean dividends (in cash, Property or obligations)
on, or other payments or distributions on account of, or the setting apart of
money for a sinking or other analogous fund for, or the purchase, redemption,
retirement or other acquisition of, any shares of any class of stock of, or any
partnership or other equity interest issued by, the Company or of any warrants,
options or other rights to acquire the same (or to make any payments to any
Person, such as "phantom stock" payments, where the amount thereof is calculated
with reference to the fair market or equity value of the Company or any of its
Subsidiaries), but excluding dividends payable solely in shares of common stock
of the Company.
"DOLLARS" and "$" shall mean lawful money of the United States of America.
"EBITDA" shall mean Consolidated Net Income plus Interest Expense, plus
Taxes, plus depreciation, plus amortization, plus non-cash non-recurring charges
for acquired research and development (to the extent deducted in calculating
Consolidated Net Income), plus non-cash non-recurring charges for asset
impairments (to the extent deducted in calculating Consolidated Net Income),
each as calculated in accordance with GAAP.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any written
or oral notice, claim, demand or other communication (collectively, a "claim")
by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising
- 7 -
out of, based on or resulting from (a) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (b) circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law. The term "Environmental Claim" shall
include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to the environment.
"ENVIRONMENTAL LAWS" shall mean any and all present and future Federal,
state, local and foreign laws, rules or regulations, and any orders or decrees,
in each case as now or hereafter in effect, relating to the regulation or
protection of the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants or toxic or hazardous substances
or wastes into the indoor or outdoor environment, including, without limitation,
ambient air, soil, surface water, ground water, wetlands, land or subsurface
strata, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants
or toxic or hazardous substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or business that is a
member of any group of organizations (a) described in Section 414(b) or (c) of
the Code of which the Company is a member and (b) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(l1)
of the Code and the lien created under Section 302(f) of ER1SA and Section
412(n) of the Code, described in Section 4l4(m) or (o) of the Code of which the
Company is a member.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in Section
10 hereof.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, PROVIDED that (a) if the day for which such rate is to be
determined is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to the Administrative Agent on such Business
Day on such transactions as determined by the Administrative Agent.
"FUNDAMENTAL CHANGE" shall mean any of the following;
(i) a "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the
- 8 -
"Exchange Act")), becoming the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of Voting Shares of the Company
entitled to exercise more than 50% of the total voting power of all
outstanding Voting Shares of the Company (including any right to
acquire Voting Shares that are not then outstanding of which such
person or group is deemed the beneficial owner); or
(ii) a change in the Board of Directors in which the
individuals who constituted the Board of Directors at the beginning
of the two-year period immediately preceding such change (together
with any other director whose election by the Board of Directors or
whose nomination for election by the shareholders of the Company was
approved by a vote of at least two-thirds of the directors then in
office who either were directors at the beginning of such period or
whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the
directors then in office; or
(iii) any consolidation of the Company with, or
merger of the Company into, any other Person, any merger of another
Person into the Company, or any sale or transfer of all or
substantially all of the assets of the Company to another Person
(other than (w) a merger which does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of Capital Stock, (x) a merger which is effected
solely to change the jurisdiction of incorporation of the Company,
(y) any consolidation with or merger of the Company into a Wholly
Owned Subsidiary of the Company, or any sale or transfer by the
Company of all or substantially all of its assets to one or more of
its Wholly Owned Subsidiaries, in any one transaction or a series of
transactions, provided, in any such case, that the resulting
corporation or each such Wholly Owned Subsidiary assumes the
Obligations under the Loan Documents; or (z) a merger or
consolidation in which the holders of the Company's Voting Shares
immediately prior to such event continue to hold more than 50% of
the Voting Shares outstanding immediately after such event).
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with those that, in accordance with the last sentence of
Section 1.2(a) hereof, are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent agreement
to purchase or to furnish funds for the payment or maintenance of, or otherwise
to be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding
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endorsements for collection or deposit in the ordinary course of business. The
terms "Guarantee" and "Guaranteed" used as a verb shall have a correlative
meaning.
"GUARANTEED OBLIGATIONS" shall have the meaning assigned to such term in
Section 6.1 hereof.
"HAZARDOUS MATERIAL" shall mean, collectively, (a) any petroleum or
petroleum products, explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, and transformers or other equipment that contain
polychlorinated biphenyls ("PCB's") in concentrations that are regulated under
the Toxic Substances Control Act, as amended, or any other Environmental Law,
(b) any chemicals or other materials or substances that are now or hereafter
become defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants", "pollutants" or words of similar import under any Environmental
Law and (c) any other chemical or other material or substance, exposure to which
is now or hereafter prohibited, limited or regulated under any Environmental
Law.
"INDEBTEDNESS" shall mean, for the Company and its Consolidated
Subsidiaries: (a) obligations created, issued or incurred by such Person for
borrowed money (whether by loan, the issuance and sale of debt securities or the
sale of Property to another Person subject to an understanding or agreement,
contingent or otherwise, to repurchase such Property from such Person); (b)
obligations of such Person to pay the deferred purchase or acquisition price of
Property or services, other than trade accounts payable (other than for borrowed
money) arising, and accrued expenses incurred, in the ordinary course of
business so long as such trade accounts payable are payable within 120 days of
the date the respective goods or services are delivered or rendered; (c)
Indebtedness of others secured by a Lien on the Property of such Person, whether
or not the respective Indebtedness so secured has been assumed by such Person;
(d) obligations of such Person, contingent or otherwise, in respect of letters
of credit, bankers' acceptances or similar instruments issued or accepted by
banks and other financial institutions for account of such person; (c) Capital
Lease Obligations of such Person; (f) Synthetic Lease Obligations of such
Person; and (g) Guarantees by such Person of Indebtedness of others.
"INDEMNIFIED LIABILITY" shall have the meaning assigned such term in
Section 11.5 hereof.
"INDEMNIFIED PARTY" shall have the meaning assigned such term in Section
12.4 hereof.
"INFORMATION" shall have the meaning assigned such term in Section 12.13(b)
hereof.
"INTANGIBLE ASSETS" shall mean intangible assets, as determined in
accordance with GAAP, including, without limitation, all deferred assets,
patents, copyrights, trademarks, non-compete agreements and similar intangibles,
goodwill, unamortized debt discount and expenses, and all investments other than
Marketable Investments.
"INTELLECTUAL PROPERTY" shall mean "Intellectual Property," as defined in
Section 101(60) of the Bankruptcy Code, now or hereafter owned by Company or any
of its Subsidiaries, together with all of the following property now or
hereafter owned by Company or any of its Subsidiaries;
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all domestic and foreign patents and patent applications; inventions,
discoveries and improvements, whether or not patentable; trademarks, trademark
applications and registrations; service marks, service ▇▇▇▇ applications and
registrations; copyrights, copyright applications and registrations; all
licenses therefor; trade secrets and all other proprietary information.
"INTEREST EXPENSE" shall mean, for any period, the sum, for the Company and
its Consolidated Subsidiaries, of the following: (a) all interest in respect of
Indebtedness (including, without limitation, the interest component of any
payments in respect of Capital Lease Obligations) accrued or capitalized during
such period (whether or not actually paid during such period); and (b) all other
amounts that would be accrued or capitalized during such period as "interest
expense" in accordance with GAAP.
"INTEREST PERIOD" shall mean: with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or Converted from a Loan of
another Type or the day after the last day of the next preceding Interest Period
for such Loan and ending on the numerically corresponding day in the first,
second, third, sixth, or ninth calendar month thereafter, as the Company may
select as provided in Section 4.5 hereof, except that each Interest Period that
commences on the last Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent calendar
month; PROVIDED, THAT, notwithstanding the foregoing:
(i) if any Interest Period for any Revolving Credit
Loan would otherwise end after the Revolving Credit Commitment
Termination Date, such Interest Period shall not be available
hereunder;
(ii) each Interest Period that would otherwise end
on a day that is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day);
and
(iii) notwithstanding clauses (i) and (ii) above, no
Interest Period for any LIBOR Loan shall have a duration of less
than one month and, if the Interest Period for any LIBOR Loan would
otherwise be a shorter period, such Loan shall not be available as a
LIBOR Loan hereunder for such period.
"INVESTMENT" shall mean, for any Person: (a) the acquisition (whether for
cash, Property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including,
without limitation, any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of Property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such Property to such Person), but excluding any such advance, loan or extension
of credit arising in connection with the sale of inventory or supplies by such
Person in the ordinary course of business so long as such advance, loan or
extension of credit is made on
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terms (including as to maturity) consistent with those terms offered by the
Company on the date hereof; and (c) the entering into of any Guarantee of, or
other contingent obligation with respect to, Indebtedness or other liability of
any other Person and (without duplication) any amount committed to be advanced,
lent or extended to such Person.
"LIBO RATE" shall mean, with respect to any LIBOR Loan for any Interest
Period therefor, the simple average (rounded upwards, if necessary, to the
nearest 1/100 of 1%), as determined by the Administrative Agent, of the rates
per annum which appear on the Dow ▇▇▇▇▇ Markets page 3750 as of 11:00 a.m.
London time on the day that is two Business Days prior to the first day of such
Interest Period (provided, that if the rate described above does not appear on
the Dow ▇▇▇▇▇ Markets on any applicable interest determination date, then at the
rates per annum quoted to the Administrative Agent at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) on the date two Business Days
prior to the first day of such Interest Period for the offering by leading banks
in the London interbank market) of Dollar deposits having a term comparable to
such Interest Period and in an amount comparable to the principal amount of the
LIBOR Loan to be made by the Lenders for such Interest Period.
"LIBOR LOANS" shall mean loans bearing interest at the rate determined
under Section 3.2(b).
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
property. For purposes of this Agreement and the other Loan Documents, a Person
shall be deemed to own subject to a Lien any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
"LIQUIDITY" shall mean, at any time, the sum of (a) Unrestricted Cash; (b)
Marketable Investments; and (c) the unused amount of the Revolving Credit
Commitment that is available to be borrowed by the Company, at such time.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Pledge Agreement
and all other agreements, instruments and documents entered into pursuant hereto
or thereto as such may be amended, modified or changed from time to time.
"LOANS" shall mean Prime Rate Loans and LIBOR Loans.
"LONG TERM SENIOR DEBT" shall have the meaning set forth in the definition
of "Debt Rating" herein.
"MARGIN STOCK" shall mean "margin stock" within the meaning of Regulations
U and X.
"MARKETABLE INVESTMENTS" shall mean any interest-bearing debt obligations
owned by Company and its Wholly-Owned Subsidiaries (excluding directors'
qualifying shares and items included as Cash Equivalents) which meet the
definition of marketable securities under GAAP. Such amounts shall exclude
common or preferred stock. Such securities shall include obligations issued by
the U.S. Treasury and other agencies of the U.S. government, corporate
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bonds, bank notes, mortgage and asset backed securities, finance company
securities and auction rate preferred stocks. Such securities shall be rated
investment grade (BBB or better for bonds or similar securities, A1/P1 for
commercial paper and notes) and shall otherwise be reasonably liquid
investments.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a) the
business, operations or financial condition or material Property of the Company
and its Subsidiaries, taken as a whole, (b) the validity or enforceability of
any of the Loan Documents or the rights and remedies of the Lenders and the
Agents thereunder or (c) the ability of the Obligors to perform their
obligations hereunder including the timely payment of the principal of or
interest on the Loans or other amounts in connection therewith.
"MATERIAL SUBSIDIARY" shall mean any Subsidiary of the Company, the total
assets of which equal or exceed five percent (5%) of the Consolidated total
assets of the Company and its Subsidiaries taken as a whole, and each as
reported in the books and records of the Company and its Subsidiaries and as
calculated in accordance with GAAP, and, for the purposes of Sections 6 and 9.13
hereof means such a Subsidiary of the Company that is organized under the laws
of the United States, provided that Genzyme Securities Corporation shall not be
deemed to be a Material Subsidiary for purposes of Sections 6 and 9.13 hereof.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Company or
any ERISA Affiliate and that is covered by Title IV of ERISA.
"NOTES" shall mean the Revolving Credit Notes.
"OBLIGATIONS" shall mean any and all of the Revolving Credit Loans,
including any principal, interest, charges, fees, costs and expenses (including
interest arising after the filing of any bankruptcy petition and notwithstanding
any law to the contrary) and all other obligations liabilities and indebtedness
of the Company or any Obligor of any kind, nature or description arising under
this Agreement, the Notes or any other Loan Documents.
"OBLIGOR" shall have the meaning given such term in the Preamble hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof)
and shall include any syndicate or group which would be deemed to be a "person"
under Section 13(d)(3) of the Exchange Act.
"PLAN" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
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"PLEDGE AGREEMENT" shall mean the Pledge Agreement provided under Section
7.1 (f) as the same such shall be modified, amended and supplemented from time
to time.
"POST-DEFAULT RATE" shall mean a rate per annum equal to 2% plus the
interest rate for a Loan as provided in one of the lettered paragraphs of
Section 3.2, with the applicable Applicable Margin being that opposite the Level
VI designation.
"PRIME RATE" shall mean for any day the rate equal to the higher from time
to time of (A) the rate of interest announced by the Administrative Agent at the
Principal Office from time to time as its prime rate; and (B) a rate equal to
1/2 of 1% per annum above the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as determined on any day by the Administrative Agent.
"PRIME RATE LOANS" shall mean loans bearing interest at the rate determined
under Section 3.2(a).
"PRINCIPAL OFFICE" shall mean the principal office of Fleet, located on the
date hereof at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
principal office of the Administrative Agent, after written notice by the
Administrative Agent.
"PROPERTY" shall mean any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"PURCHASE MONEY INDEBTEDNESS" shall mean Indebtedness incurred by a Person
to purchase machinery, equipment and other fixed assets, but only (i) if the
amount of such Indebtedness is not greater than 100% of the invoice amount of
such purchased machinery, equipment and other fixed assets, and (ii) such
Indebtedness, if secured, is secured by a security interest in only the
purchased machinery, equipment and other fixed assets and such Person has not
granted a lien or security interest to secure such Indebtedness on any other
property of such Person other than such purchased fixed assets; and (iii) such
purchased fixed assets do not constitute all or substantially all of the fixed
assets of any Person or any division of any Person.
"QUARTERLY DATES" shall mean the last Business Day of March, June,
September and December of each year, the first of which shall be the first such
day after the date hereof.
"PUT OPTION" shall mean the obligation of the Company to purchase, at the
option of the holders of the Company's 3% Convertible Subordinated Debentures
due May 15, 2021, all or any portion of those securities issued under the
Indenture between the Company and State Street Bank and Trust Company, as
Trustee, dated May 8, 2001.
"REGULATIONS A, D, U AND X" shall mean, respectively, Regulations A, D, U
and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying
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to a class of banks including such Lender of or under any Federal, state or
foreign law or regulations (whether or not having the force of law and whether
or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"REQUIRED LENDERS" shall mean Lenders having at least 51% of the aggregate
amount of the Commitments or, if the Commitments shall have terminated, Lenders
holding at least 51% of the aggregate unpaid principal amount of the Loans.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for a LIBOR Loan,
the average maximum rate at which reserves (including, without limitation, any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the LIBOR Loan is to be determined
or (ii) any category of extensions of credit or other assets that includes LIBOR
Loans.
"REVOLVING CREDIT COMMITMENT" shall mean, for each Revolving Credit Lender,
the obligation of such Lender to make Revolving Credit Loans in an aggregate
principal amount at any one time outstanding up to but not exceeding (a) in the
case of any such Lender originally party hereto, the sum of (i) the amount set
opposite the name of such Lender on the signature pages hereto, plus (ii) the
aggregate amount of Revolving Credit Commitments acquired by such Lender from
other Lenders pursuant to Section 12.7(b) hereof minus (iii) the aggregate
amount of Revolving Credit Commitments transferred by such Lender to one or more
other Lenders pursuant to Section 12.7(b) hereof and (b) in the case of any such
Lender that was not originally party hereto, (i) the aggregate amount of
Revolving Credit Commitments acquired by such Lender from other Lenders pursuant
to Section 12.7(b) hereof minus (ii) the aggregate amount of Revolving Credit
Commitments transferred by such Lender to one or more other Lenders pursuant to
Section 12.7(b) hereof, in each case, as such obligation may be reduced from
time to time pursuant to Section 2.3 hereof.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with respect to any
Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall be either:
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(A) December 10, 2006, if on or before March 15, 2006 the Company
delivers to the Administrative Agent and each of the Lenders a certificate
accompanied by evidence sufficient to establish to the satisfaction of the
Administrative Agent that either:
(a) either:
(i) the requisite holders of the Company's 3%
Convertible Subordinated Debentures due May 15,
2021 (the "3% Debentures") have agreed with the
Company and the trustee thereunder that the
first date on which the Put Option may be
exercised shall not be earlier than January 26,
2007; or
(ii) the Put Option has been eliminated in a manner
satisfactory to the Administrative Agent in its
sole discretion; or
(b) the Company has maintained Liquidity of at least
$975,000,000 as of March 15, 2006 and on each of the
ten (10) consecutive Business Days prior to March 15,
2006; or
(B) otherwise, March 31, 2006.
"REVOLVING CREDIT LENDERS" shall mean the Lenders from time to time holding
Revolving Credit Loans and/or Revolving Credit Commitments.
"REVOLVING CREDIT LOANS" shall mean the loans provided for in Section 2.1
hereof, which may be Prime Rate Loans and/or LIBOR Loans.
"REVOLVING CREDIT NOTES" shall mean the promissory notes provided for by
Section 2.7(a) hereof and all promissory notes delivered in substitution or
exchange for any thereof, in each case as the same shall be modified and
supplemented and in effect from time to time.
"SENIOR UNSECURED DEBT RATING" shall mean, for any date, the senior
unsecured debt rating, as rated by Standard & Poor's or ▇▇▇▇▇'▇ Investor Service
as of such date.
"SUBORDINATED DEBT" means (1) the Company's Convertible Notes, issued May,
2001, in the original aggregate principal amount of $575 million, (2) unsecured
Indebtedness of the Company or a Subsidiary of the Company which, by its terms,
is explicitly subordinated to the prior payment in full of the Obligations to at
least the following extent: (a) no payments of principal of (or premium, if any)
or interest on (or otherwise due in respect of) such Indebtedness may be
permitted for so long as any Default or Event of Default in the payment of
principal (or premium, if any) or interest on the Loans exists; (b) in the event
that any other Default or Event of Default exists, upon notice by the Required
Lenders, the Administrative Agent shall have the right to give notice to the
Company and the holders of such Indebtedness (or agents therefor) of a payment
blockage, and thereafter no payments of principal of (or premium, if any) or
interest on (or otherwise due in respect of) such Indebtedness may be made for a
period of 179 days from the date of such notice unless, prior to such time, such
Default or Event of Default is cured or waived; PROVIDED, HOWEVER, that only one
such notice of a payment blockage shall be effective
- 16 -
during any 365 consecutive day period and PROVIDED, FURTHER, that no such other
Default or Event of Default that existed upon first delivery of such a notice
shall be the basis for a subsequent notice of payment blockage unless such
Default or Event of Default shall have been cured or waived for a period of 180
consecutive days; (c) such Indebtedness may not (i) provide for payments of
principal of such Indebtedness at the stated maturity thereof or by way of a
sinking fund applicable thereto or by way of any mandatory redemption,
defeasance, retirement or repurchase thereof by the Company or any Subsidiary
(including any redemption, retirement or repurchase which is contingent upon
events or circumstances but not including any exchange, conversion or payment
with equity or other Subordinated Debt), in each case prior to the Revolving
Credit Commitment Termination Date or (ii) permit redemption or other retirement
(including pursuant to an offer to purchase made by the Company or any
Subsidiary) of such other Indebtedness at the option of the holder thereof prior
to the Revolving Credit Commitment Termination Date other than by conversion to
Capital Stock or other equity of the Company or other Subordinated Debt;
PROVIDED, HOWEVER, in the case of either (i) or (ii), such Indebtedness may
provide for payment prior to the stated maturity of such Indebtedness if any
event which causes, or (with the giving of any notice or the lapse of time or
both) permits the holder or holders of such Indebtedness (or a trustee or agent
on behalf of such holder or holders) to cause such Indebtedness to become due,
or to be prepaid (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity would also cause a Default or an Event
of Default (subject, however, to the limitations of clauses (a), (b), (d) and
(e) hereof); (d) the terms of such Indebtedness shall provide, to the extent not
prohibited in the Trust Indenture Act of 1939, as amended, that no action to
enforce the payment thereof or to exercise any remedy with respect thereto shall
occur unless the holders of such Indebtedness (or agents therefor) give the
Administrative Agent notice of such default and thereafter no such enforcement
action or exercise of remedies shall occur until 180 days shall have elapsed
from the date of such notice without the cure or waiver of such default,
provided that such standstill period shall continue for as long as a Default or
an Event of Default under clause (a) above exists; provided, further, however,
that the restrictions described in this clause (d) shall not apply if the event
which gives rise to the right to enforce such payment or exercise such remedy
triggers a Default or an Event of Default (subject, however, to the limitations
of clauses (a), (b), (c), and (e); and (e) such Indebtedness shall further
provide that, upon any bankruptcy, insolvency, liquidation or similar case or
proceeding relative to the Company or any of its Subsidiaries, or upon the
realization of any amounts by the holders of the Indebtedness (or the agents
therefor) resulting from an action under clause (d) above, the Obligations shall
first be paid in full to the Administrative Agent or such payment shall have
been provided for to the satisfaction of the Required Lenders before any payment
or distribution is made to or retained by the holders of the Indebtedness (or
the agents therefor), (3) any other Indebtedness of the Company or its
Subsidiaries, incurred after the date hereof, containing subordination terms,
which are specifically consented to in writing by the Required Lenders and (4)
any refinancing of Subordinated Debt incurred pursuant to subsections (1), (2)
or (3), in which (x) the principal amount of Subordinated Debt resulting from
such refinancing does not exceed the sum of (i) the principal amount of the
Subordinated Debt so refinanced plus (ii) customary fees and expenses incurred
in connection with such refinancing and (y) the Indebtedness resulting from such
refinancing satisfies the criteria for Subordinated Debt hereunder.
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"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency), or of
which at least a majority of the limited partnership interests or other similar
ownership interests issued by any limited partnership or other similar entity,
is at the time directly or indirectly owned or controlled by such Person or one
or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person.
"SUBSIDIARY GUARANTOR" shall have the meaning given such term in the
preamble hereof.
"SUCCESSOR RATING AGENCY" shall have the meaning set forth in the
definition of "Debt Rating" herein.
"SYNTHETIC LEASE OBLIGATIONS" shall mean, for any Person, all obligations
of such Person to pay rent or other amounts under or in connection with any
so-called "synthetic lease" (i.e., a lease (or other agreement conveying the
right to use) of property that constitutes a lease in accordance with GAAP but
that does not constitute a lease for Federal income tax purposes), including,
without limitation, obligations under: (i) the Agency Agreement, dated as of
October 21, 1998 (the "Agency Agreement") between the Company, as
successor-by-merger to GelTex Pharmaceuticals, Inc. and First Security Bank,
N.A., not in its individual capacity except as expressly set forth in the Agency
Agreement, but solely as Trustee under the Owner Trust Agreement dated as of
October 21, 1998 (the "Owner Trust Agreement") between Fleet Real Estate, Inc.
and First Security Bank, N.A., not in its individual capacity except as
expressly set forth in the Agency Agreement, but solely as Trustee under the
Owner Trust Agreement; and (ii) a Lease Agreement, dated as of October 21, 1998
(the "Lease Agreement"), between the Company, as successor-by-merger to GelTex
Pharmaceuticals, Inc. and First Security Bank, N.A., not in its individual
capacity except as expressly set forth in the Lease Agreement, but solely as
Trustee under the Owner Trust Agreement.
"TAXES" shall mean any present tax (including, without limitation, any
income, documentary, sales, stamp, registration, property or excise tax),
assessment or other charge, levy, impost, fee, compulsory loan, charge or
withholding.
"TYPE" shall have the meaning given such term in Section 1.3 hereof.
"UNRESTRICTED CASH" shall mean cash and Cash Equivalents of the Company and
its Wholly Owned Subsidiaries that are readily available to Company and not
subject to any limitation or restriction on their use by the Company.
"U.S. PERSON" shall mean a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or
under any laws of the United States of America or any State thereof, or any
estate or trust that is subject to Federal income taxation regardless of the
source of its income.
- 18 -
"VOTING SHARES" shall mean all outstanding shares of any class or series
(however designated) of Capital Stock entitled to vote generally in the election
of members of the Board of Directors of the Company.
"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity to which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares or, in the case of a limited partnership, not more
than 1% of the aggregate partnership interests issued by such limited
partnership) are directly or indirectly owned or controlled by such Person or
one or more Wholly Owned Subsidiaries of such Person or by such Person and one
or more Wholly Owned Subsidiaries of such Person.
1.2. ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein,
all accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders
hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described
in subsection (b) below) be prepared, in accordance with GAAP
applied on a basis consistent with those used in the
preparation of the latest annual or quarterly financial
statements furnished to the Lenders hereunder (which, prior to
the delivery of the first annual or quarterly financial
statements under Section 9.1 hereof, shall mean the audited
financial statements as at December 31, 2002 referred to in
Section 8.2 hereof).
(b) To enable the ready and consistent
determination of compliance with the covenants set forth in
Section 9 hereof, the Company will not change its fiscal year.
1.3. TYPES OF LOANS. Loans hereunder are distinguished by "Type". The
"Type" of a Loan refers to whether such Loan is a Prime Rate Loan or a LIBOR
Loan.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.1. REVOLVING CREDIT LOANS.
(a) REVOLVING CREDIT FACILITY. Each Lender
severally agrees, on the terms and conditions of this
Agreement, to make loans to the Company in Dollars during the
period from and including the Closing Date to but not including
the Revolving Credit Commitment Termination Date in an
aggregate principal amount at any one time outstanding up to
but not exceeding the amount of the Revolving Credit Commitment
of such Lender as in effect from time to time (such Loans being
herein called "REVOLVING CREDIT LOANS"); PROVIDED THAT in no
event shall the Revolving
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Credit Loans at any time outstanding exceed the aggregate
amount of the Revolving Credit Commitments as in effect from
time to time. Subject to the terms and conditions of this
Agreement, during such period the Company may borrow, repay and
reborrow the amount of the Revolving Credit Commitments by
means of Prime Rate Loans and LIBOR Loans and may Convert
Revolving Credit Loans of one Type into Revolving Credit Loans
of another Type (as provided in Section 2.8 hereof) or Continue
Revolving Credit Loans of one Type as Revolving Credit Loans of
the same Type (as provided in Section 2.8 hereof).
(b) INTEREST PERIODS. No more than five separate
Interest Periods in respect of LIBOR Loans may be outstanding
at any one time.
2.2. BORROWINGS OF REVOLVING CREDIT LOANS. The Company shall give the
Administrative Agent notice of each borrowing hereunder as provided in Section
4.5 hereof, and the Administrative Agent shall promptly give each Lender notice
thereof. Not later than 1:00 p.m. Boston,
Massachusetts time on the date
specified for each borrowing of Revolving Credit Loans hereunder, each Lender
shall make available the amount of the Loan or Loans to be made by it on such
date to the Administrative Agent, at account number ▇▇▇▇▇▇▇ maintained by the
Administrative Agent with Fleet at the Principal Office, or, after written
notice by the Administrative Agent to the Lenders, at such other account
maintained by the Administrative Agent, in immediately available funds, for the
account of the Company. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Company by depositing the same, in immediately available funds, in an
account of the Company maintained with Fleet at the Principal Office designated
for the Company, or at such other account designated in writing by the
Administrative Agent.
2.3. CHANGES OF COMMITMENTS.
(a) The aggregate amount of the Revolving Credit
Commitments shall be automatically reduced to zero on the
Revolving Credit Commitment Termination Date.
(b) The Company shall have the right at any time
or from time to time to reduce the aggregate unused amount of
the Revolving Credit Commitments (for which purpose the
Revolving Credit Commitments shall be deemed to be utilized by
the amount of the Revolving Credit Loans); PROVIDED that (x)
the Company shall give notice of each such termination or
reduction as provided in Section 4.5 hereof, , and (y) each
partial reduction to the aggregate Revolving Credit Commitments
shall be in an aggregate amount at least equal to $5,000,000
(or any integral multiple of $1,000,000 in excess thereof) or
such lesser amount required to reduce the remaining Revolving
Credit Commitments to zero ($0.00), as applicable.
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(c) The Commitments once terminated or reduced may
not be reinstated.
2.4. FACILITY FEE. The Company shall pay to the Administrative Agent
for the account of each Lender a facility fee on the entire amount of such
Lender's Commitment (without regard to whether the Borrower is permitted by the
terms hereof to borrow the entire amount of such Commitment), for the period
from and including the date hereof to but not including the date such Commitment
is terminated or expires, at a rate per annum equal to the Applicable Facility
Fee Rate. Accrued facility fees shall be payable in arrears on each Quarterly
Date and on the date the respective Revolving Credit Commitments are terminated
or expire.
2.5. LENDING OFFICES. The Loans of each Type made by each Lender shall
be made and maintained at such Lender's Applicable Lending Office for Loans of
such Type.
2.6. SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor any Agent shall be responsible for the failure of any
other Lender to make a Loan to be made by such other Lender, and (except as
otherwise provided in Section 4.6 hereof) no Lender shall have any obligation to
any Agent or any other Lender for the failure by such Lender to make any Loan
required to be made by such Lender. The amounts payable by the Company at any
time hereunder and under the Note to each Lender shall be a separate and
independent debt and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and the Notes, and it shall not be
necessary for any other Lender or any Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.7. NOTES.
(a) The Revolving Credit Loans made by each Lender
shall be evidenced by a single promissory note of the Company
substantially in the form of EXHIBIT A hereto, dated the date
hereof, payable to such Lender in a principal amount equal to
the amount of its Revolving Credit Commitment as originally in
effect and otherwise duly completed.
(b) The date, amount, Type, interest rate and
duration of Interest Period (if applicable) of each Loan made
by each Lender to the Company, and each payment made on account
of the principal thereof, shall be recorded by such Lender on
its books and, prior to any transfer of any Note evidencing the
Loans held by it, endorsed by such Lender on the schedule
attached to such Note or any continuation thereof, PROVIDED
that the failure of such Lender to make any such recordation or
endorsement shall not affect the obligations of the Company to
make a payment when due of any amount owing hereunder or under
such Note in respect of such Loans.
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(c) No Lender shall be entitled to have its Note
substituted or exchanged for any reason, or subdivided for
promissory notes of lesser denominations, except in connection
with a permitted assignment of all or any portion of such
Lender's relevant Commitment, Loans and Note pursuant to
Section 12.7 hereof (and, if requested by any Lender, the
Company agrees to so exchange any Note).
2.8. OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF LOANS.
Subject to Section 4.4 hereof, the Company shall have the right to prepay Loans
or to Convert Loans of one Type into Loans of another Type or Continue Loans of
one Type as Loans of the same Type, at any time or from time to time, PROVIDED
that:
(a) the Company shall give the Administrative Agent
notice of each such prepayment, Conversion or Continuation as
provided in Section 4.5 hereof (and, upon the date specified in
any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder); and
(b) any prepayment or Conversion of LIBOR Loans on
any day other than the last day of an Interest Period for such
Loans shall be subject to the payment of any compensation
payable pursuant to Section 5.5 hereof.
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10 hereof, in the event that any Event of Default
shall have occurred and be continuing, the Administrative Agent may (and at the
request of the Required Lenders shall) suspend the right of the Company to
Convert any Loan into a LIBOR Loan, or to make or Continue any Loan as a LIBOR
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or made or Continued, as the case may be,
as Prime Rate Loans.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.1. REPAYMENT OF LOANS. The Company hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding principal
amount of such Lender's Revolving Credit Loans, and each Revolving Credit Loan
shall mature, on the Revolving Credit Commitment Termination Date.
3.2. INTEREST. The Company hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Revolving Credit Loan made by such Lender for the period from and
including the date of such Loan to but excluding the date such Revolving Credit
Loan shall he paid in full, at the following rates per annum:
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(a) if such Loan is outstanding as a Prime Rate
Loan, the Prime Rate (as in effect from time to time) PLUS the
Applicable Margin; and
(b) if such Loan is outstanding as a LIBOR Loan,
for each Interest Period relating thereto, the Adjusted LIBO
Rate for such Loan for such Interest Period PLUS the Applicable
Margin.
During any period when an Event of Default shall have occurred and be
continuing and upon notice from the Administrative Agent (provided either in its
discretion or at the request of the Required Lenders) of an election to charge
interest at the applicable Post-Default Rate, the Company hereby promises to pay
to the Administrative Agent for account of each Lender interest at the
applicable Post-Default Rate on (i) each Loan and (ii) any amount owing
hereunder (other than overdue principal of a Loan) that is not paid when due
(whether at stated maturity, by acceleration, by mandatory or voluntary
prepayment or otherwise).
Accrued interest on each Loan shall be payable in arrears (i) in the case
of a Prime Rate Loan, quarterly on the Quarterly Dates, (ii) in the case of a
LIBOR Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three months, at three-month intervals following
the first day of such Interest Period, and (iii) in the case of any Loan, upon
the payment or prepayment thereof or the Conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid or Converted),
except that interest payable at the Post-Default Rate shall be payable from time
to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, the Administrative Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Company.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.1. PAYMENTS.
(a) Except to the extent otherwise provided in this
Agreement, all payments of principal, interest, and other
amounts to be made by the Company under this Agreement and the
Notes, and, except to the extent otherwise provided therein,
all payments to be made by the Obligors under any other Loan
Document, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the
Administrative Agent at account number ▇▇▇▇▇▇▇▇ maintained by
the Company with the Administrative Agent, or at any other
account designated in writing by the Administrative Agent, at
the Principal Office, not later than 1:00 p.m. Boston,
Massachusetts time on the date on which such payment shall
become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding
Business Day). The Obligors authorize the Administrative Agent
to debit such account for all such payments.
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(b) If any such payment owing to any Lender is not
made when due (beyond any applicable grace period), such Lender
may (but shall not be obligated to) debit the amount of any
such payment to any ordinary deposit account of the Company
with such Lender (with notice to the Company and the
Administrative Agent).
(c) The Company shall, at the time of making each
payment under this Agreement or any Note for account of any
Lender, subject to Section 4.2 specify to the Administrative
Agent (which shall so notify the intended recipient(s) thereof)
the amount payable on the Loans, or other amounts payable by
the Company hereunder to which such payment is to be applied
(and in the event that the Company fails to so specify, or if
an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders
for application in such manner as it, subject to Section 4.2
hereof, may determine to be appropriate).
(d) Each payment received by the Administrative
Agent under this Agreement or any Note for account of any
Lender shall be paid by the Administrative Agent promptly to
such Lender, in immediately available funds, for account of
such Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made.
(e) If the due date of any payment under this
Agreement or any Note would otherwise fall on a day that is not
a Business Day, such date shall be extended to the next
succeeding Business Day, and interest shall be payable for any
principal so extended for the period of such extension.
(f) Any payment of principal or interest on the
Loans not paid within ten (10) days after the date such payment
is due shall be subject to a late charge equal to five percent
(5%) of the amount overdue.
(g) All payments by the Company hereunder and under
any of the other Loan Documents shall be made without
recoupment, setoff or counterclaim and free and clear of and
without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans,
restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless
the Company is compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Company
with respect to any amount payable by it hereunder or under
any of the other Loan Documents, the Company will pay to the
Administrative Agent, for the account of the Lenders or (as the
case may be) the Administrative Agent, on the date on which
such amount is due and payable hereunder or under such other
Loan Document, such additional amount in Dollars as shall be
necessary to enable the Lenders or
- 24 -
the Administrative Agent to receive the same net amount which
the Lenders or the Administrative Agent would have received on
such due date had no such obligation been imposed upon the
Company. The Company will deliver promptly to the
Administrative Agent certificates or other valid vouchers for
all taxes or other charges deducted from or paid with respect
to payments made by the Company hereunder or under such other
Loan Document.
4.2. PRO RATA TREATMENT. Except to the extent otherwise provided
herein:
(a) each borrowing of Loans from the Lenders under
Section 2.1 hereof shall be made from the Lenders, each payment
of facility fee under Section 2.4 hereof in respect of
Commitments shall be made for account of the Lenders, and each
termination or reduction of the amount of the Commitments under
Section 2.3 hereof shall be applied to the respective
Commitments of the Lenders, pro rata according to the amounts
of their respective Commitments;
(b) except as otherwise provided in Section 5.4
hereof, LIBOR Loans having the same Interest Period shall be
allocated pro rata among the Lenders according to the amounts
of their respective Revolving Credit Commitments (in the case
of the making of Loans) or their respective Revolving Credit
Loans (in the case of Conversions and Continuations of Loans);
(c) each payment or prepayment of principal of
Revolving Credit Loans by the Company shall be made for account
of the Lenders pro rata in accordance with the respective
unpaid principal amounts of the Loans held by them; and
(d) each payment of interest on Revolving Credit
Loans by the Company shall be made for account of the Lenders
pro rata in accordance with the amounts of interest on such
Loans then due and payable to the respective Lenders.
4.3. COMPUTATIONS. Interest on Loans and facility fees shall be
computed on the basis of a year of 360 days and actual days elapsed, including
the first day but excluding the last day occurring in the period for which
payable.
4.4. MINIMUM AMOUNTS. Except for Conversions or prepayments made
pursuant to Section 5.4 hereof, each borrowing, Conversion and partial
prepayment of principal of Loans shall be in an aggregate amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (borrowings,
Conversions or prepayments of or into Loans of different Types or, in the case
of LIBOR Loans, having different Interest Periods at the same time hereunder to
be
- 25 -
deemed separate borrowings, Conversions and prepayments for purposes of the
foregoing, one for each Type or Interest Period).
4.5. CERTAIN NOTICES. Notices by the Company to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans, and of Types of
Loans and of the duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Administrative Agent not later than 10:00 a.m.
Boston,
Massachusetts time (or, in respect of borrowings to be made on the
Closing Date, not later than 4:00 p.m. Boston,
Massachusetts time) on the number
of Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversion into,
Prime Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, LIBOR Loans 3
A notice of borrowing, Conversion, or Continuation may be given at any time when
the sum of the aggregate outstanding Loans and the aggregate requested Loans
exceeds the lesser of the aggregate availabilities or the aggregate Commitments;
PROVIDED, HOWEVER, that Loans outstanding shall never exceed the lesser of the
aggregate availability or the aggregate Commitments. Each such notice of
termination or reduction shall specify the amount of the Commitments to be
terminated or reduced. Each such notice of borrowing, Conversion, Continuation
or optional prepayment shall specify the amount to be borrowed, Converted,
Continued or prepaid (subject to Section 4.4 hereof) and Type of each Loan to be
borrowed, Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day), and shall
be in the form, as applicable, of either EXHIBIT G hereto (for each notice of
borrowing), EXHIBIT H hereto (for each notice of Conversion or Continuation), or
EXHIBIT I hereto (for each notice of prepayment). Each such notice of the
duration of an Interest Period shall specify the Loans to which such Interest
Period is to relate. The Administrative Agent shall promptly notify the Lenders
of the contents of each such notice. In the event that the Company fails to
select a Type of Loan, or the duration of any Interest Period for any LIBOR
Loan, within the time period and otherwise as provided in this
- 26 -
Section 4.5, such Loan: (i) if then outstanding as a LIBOR Loan, will be
automatically Converted into a Prime Rate Loan; or (ii) if not then outstanding,
will be made as, a Prime Rate Loan.
4.6. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT; DELINQUENT
LENDERS.
(a) Unless the Administrative Agent shall have been
notified by a Lender or the Company (the "PAYOR") prior to the
date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds
of a Loan to be made by such Lender hereunder or (in the case
of the Company) a payment to the Administrative Agent for
account of one or more of the Lenders hereunder (such payment
being herein called the "REQUIRED PAYMENT"), which notice shall
be effective upon receipt, that the Payor does not intend to
make the Required Payment to the Administrative Agent, the
Administrative Agent may assume that the Required Payment has
been made and may, in reliance upon such assumption (but shall
not he required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not
in fact made the Required Payment to the Administrative Agent
and the Administrative Agent has made the payment to the
recipient(s), the recipient(s) of such payment shall, on
demand, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day
during the period commencing on the date (the "ADVANCE DATE")
such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at
a rate per annum equal to the Federal Funds Rate for such day
and, if such recipient(s) shall fail promptly to make such
payment, the Administrative Agent shall be entitled to recover
such amount, on demand, from the Payor, together with interest
as aforesaid, PROVIDED that if neither the recipient(s) nor the
Payor shall return the Required Payment to the Administrative
Agent within three Business Days of the date of the notice from
the Administrative Agent, then the Payor and the recipient(s)
shall each be obligated to pay interest on the Required Payment
as follows:
(i) if the Required Payment shall represent a
payment to be made by the Company to the Lenders, the Company and
the recipient(s) shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required Payment at
the Post-Default Rate (without duplication of the obligation of the
Company under Section 3.2 hereof to pay interest on the Required
Payment at the Post-Default Rate), it being understood that the
return by the recipient(s) of the Required Payment to the
Administrative Agent shall not limit such obligation of the Company
under said Section 3.2 to pay interest at the Post-Default Rate in
respect of the Required Payment; and
(ii) if the Required Payment shall represent
proceeds of a Loan to be made by the Lenders to the Company, the
Payor and the Company shall each he obligated retroactively to the
Advance Date to pay interest in respect of the
- 27 -
Required Payment pursuant to Section 3.2 hereof (without duplication
of the obligation of the Company under Section 3.2 hereof to pay
interest on the Required Payment), it being understood that the
return by the Company of the Required Payment to the Administrative
Agent shall not limit any claim the Company may have against the
Payor in respect of such Required Payment.
(b) If for any reason any Lender shall fail or
refuse to abide by its obligations under this Loan Agreement,
including, without limitation, its obligation to make available
to Administrative Agent its share of any Revolving Credit
Loans, expenses, or setoff (a "Delinquent Lender"), any
non-delinquent Lender shall have the right, but not the
obligation, in its respective, sole and absolute discretion, to
acquire (x) for no cash consideration (PRO RATA, based on the
respective Commitments of those Lenders electing to exercise
such right) the Delinquent Lender's Commitment to fund future
Revolving Credit Loans; and (y) for consideration equal to the
amount of the outstanding Revolving Credit Loans from such
Lender (PRO RATA, based on the respective Commitments of those
Lenders electing to exercise such right) the Delinquent
Lender's rights with respect to outstanding Revolving Credit
Loans (the rights purchased under clauses (x) and (y), the
"Purchased Rights"), but only if, in the aggregate, all of the
Delinquent Lender's rights with respect to outstanding
Revolving Credit Loans and Commitments are acquired hereunder
by one or more non-delinquent Lender(s). Upon any such
purchase of the PRO RATA share of any Delinquent Lender's
Purchased Rights, the Delinquent Lender's rights with respect
to outstanding Revolving Credit Loans, Commitment, share in
future Revolving Credit Loans, and rights under the Loan
Documents with respect thereto shall terminate on the day of
purchase (other than indemnification rights that survive
termination of the Commitments under Section 12.8 hereof and
rights to receive accrued but unpaid interest and fees through
the date of purchase), and the Delinquent Lender shall promptly
execute all documents reasonably requested to surrender and
transfer such interests (other than indemnification rights that
survive termination of the Commitments under Section 12.8
hereof and rights to receive accrued but unpaid interest and
fees through the date of purchase), including, if so requested,
a Notice of Assignment (provided that the assignment fee in
connection with such Notice of Assignment shall not be
charged).
4.7. SHARING OF PAYMENTS, ETC.
(a) Each Obligor agrees that, in addition to (and
without limitation of) any right of set-off, banker's lien or
counterclaim a Lender may otherwise have, each Lender shall be
entitled, at its option (to the fullest extent permitted by
law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness,
held by it for the credit or account of such Obligor at any of
its offices, in
- 28 -
Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans, or any other amount
payable to such Lender hereunder, that is not paid when due
(regardless of whether such deposit or other indebtedness are
then due to such Obligor and of the existence or adequacy of
any security therefor), in which case it shall promptly notify
such Obligor and the Administrative Agent thereof, PROVIDED
that such Lender's failure to give such notice shall not affect
the validity thereof.
(b) If any Lender shall obtain from any Obligor
payment of any principal of or interest on any Loan owing to it
or payment of any other amount under this Agreement or any
other Loan Document through the exercise any right of set-off,
banker's lien or counterclaim or similar right or otherwise
(other than from the Administrative Agent as provided herein),
and, as a result of such payment, such Lender shall have
received a greater percentage of the principal of or interest
on the Loans or such other amounts then due hereunder or
thereunder by such Obligor to such Lender than the percentage
received by any other Lender, it shall promptly purchase from
such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans or
such other amounts, respectively, owing to such other Lenders
(or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as
shall be equitable, to the end that all the Lenders shall share
the benefit of such excess payment (net of any expenses that
may be incurred by such Lender in obtaining or preserving such
excess payment) pro rata in accordance with the unpaid
principal of and/or interest on the Loans or such other
amounts, respectively, owing to each of the Lenders. To such
end all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored.
(c) The Company agrees that any Lender so
purchasing such a participation (or direct interest) may
exercise all rights of set-off, banker's lien, counterclaim or
similar rights with respect to such participation as fully as
if such Lender were a direct holder of Loans or other amounts
(as the case may be) owing to such Lender in the amount of such
participation.
(d) Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of
any Lender to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness or
obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured
claim in lieu of a set-off to which this Section 4.7 applies,
such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent
with the rights of the Lenders entitled under
- 29 -
this Section 4.7 to share in the benefits of any recovery on
such secured claim.
Section 5. YIELD PROTECTION, ETC.
5.1. ADDITIONAL COSTS.
(a) The Company shall pay directly to each Lender
from time to time such amounts as such Lender may determine to
be necessary to compensate such Lender for any costs that such
Lender determines are attributable to its making or maintaining
of any LIBOR Loans or its obligation to make any LIBOR Loans
hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such Loans or such
obligation (such increases in costs and reductions in amounts
receivable being herein called "ADDITIONAL COSTS"), resulting
from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable
Lending Office for any of such Loans) to any tax, duty or other
charge in respect of such Loans or its Note or changes the basis of
taxation of any amounts payable to such Lender under this Agreement
or its Note in respect of any of such Loans (excluding any Taxes
based on net income or in lieu of net income imposed on such Lender
by the jurisdiction in which such Lender has its principal office or
its Applicable Lending Office); or
(ii) imposes or modifies any reserve, special
deposit or similar requirements (other than any thereof, including,
without limitation, the Reserve Requirement, utilized in the
determination of the Adjusted LIBO Rate or LIBO Rate for such Loan)
relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Lender (including,
without limitation, any of such Loans or any deposits referred to in
the definition of "LIBO Rate" in Section 1.1 hereof), or any
commitment of such Lender (including, without limitation, the
Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this
Agreement or its Note (or any of such extensions of credit or
liabilities) or its Commitment.
If any Lender requests compensation from the Company under this
Section 5.1 (a), the Company may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender thereafter to make
or Continue LIBOR Loans, or to Convert Prime Rate Loans into LIBOR Loans, until
the Regulatory Change giving rise to such request ceases to be in effect (in
which case the provisions of Section 5.4 hereof shall be applicable), PROVIDED
that such suspension shall not affect the right of such Lender to receive the
compensation so requested.
- 30 -
(b) Without limiting the effect of the provisions
of paragraph (a) of this Section 5.1, in the event that, by
reason of any Regulatory Change, any Lender either (i) incurs
Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or
other liabilities of such Lender that includes deposits by
reference to which the interest rate on LIBOR Loans is
determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender that
includes LIBOR Loans or (ii) becomes subject to restrictions on
the amount of such a category of liabilities or assets that it
may hold, then, if such Lender so elects by notice to the
Company (with a copy to the Administrative Agent), the
obligation of such Lender to make or Continue, or to Convert
Prime Rate Loans into, LIBOR Loans hereunder shall be suspended
until such Regulatory Change ceases to be in effect (in which
case the provisions of Section 5.4 hereof shall be applicable).
(c) Without limiting the effect of the foregoing
provisions of this Section 5.1 (but without duplication), the
Company shall pay directly to each Lender from time to time on
request such amounts as such Lender may determine to be
necessary to compensate such Lender (or, without duplication,
the bank holding company of which such Lender is a subsidiary)
for any costs that it determines are attributable to the
maintenance by such Lender (or any Applicable Lending Office or
such bank holding company), pursuant to any law or regulation
or any interpretation, directive or request (whether or not
having the force of law and whether or not failure to comply
therewith would be unlawful) of any court or governmental or
monetary authority (i) following any Regulatory Change or (ii)
implementing any risk-based capital guideline or other
requirement (whether or not having the force of law and whether
or not the failure to comply therewith would be unlawful)
hereafter issued by any government or governmental or
supervisory authority implementing at the national level the
Basle Accord, of capital in respect of its Commitments or Loans
(such compensation to include, without limitation, an amount
equal to any reduction of the rate of return on assets or
equity of such Lender (or any Applicable Lending Office or such
bank holding company) to a level below that which such Lender
(or any Applicable Lending Office or such bank holding company)
could have achieved but for such law, regulation,
interpretation, directive or request).
(d) Each Lender shall notify the Company of any
event occurring after the date hereof entitling such Lender to
compensation under paragraph (a) or (c) of this Section 5.1 as
promptly as practicable, but in any event within 45 days, after
such Lender obtains actual knowledge thereof; PROVIDED that if
(i) any Lender fails to give such notice within 45 days after
it obtains actual knowledge of such an event, such Lender
shall, with respect to compensation payable pursuant to this
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Section 5.1 in respect of any costs resulting from such event,
only be entitled to payment under this Section 5.1 for costs
incurred from and after the date 45 days prior to the date that
such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans
of such Lender affected by such event if such designation will
avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable opinion of such Lender, be
disadvantageous to such Lender (including, without limitation,
by reason of any economic, legal or regulatory cost or
disadvantage that such Lender may bear or suffer by reason of
such designation). Each Lender will furnish to the Company a
certificate setting forth in reasonable detail the basis and
amount of each request by such Lender for compensation under
paragraph (a) or (c) of this Section 5.1. Determinations and
allocations by any Lender for purposes of this Section 5.1 of
the effect of any Regulatory Change pursuant to paragraph (a)
or (b) of this Section 5.1, or of the effect of capital
maintained pursuant to paragraph (c) of this Section 5.1, on
its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in
respect of Loans, and of the amounts required to compensate
such Lender under this Section 5.1, shall be conclusive,
PROVIDED that such determinations and allocations are made on a
reasonable basis.
5.2. LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any LIBO Rate for any
Interest Period:
(a) the Administrative Agent determines, which
determination shall be conclusive, that quotations of interest
rates for the relevant deposits referred to in the definition
of "LIBO Rate" in Section 1.1 hereof are not being provided in
the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for LIBOR Loans as
provided herein; or
(b) the Required Lenders determine which
determination shall be conclusive, and notify (or notifies, as
the case may be) the Administrative Agent that the relevant
rates of interest referred to in the definition of "LIBO Rate"
in Section 1.1 hereof upon the basis of which the rate of
interest for LIBOR Loans for such Interest Period is to be
determined do not adequately and fairly reflect the cost to
such Lenders of making or maintaining LIBOR Loans for such
Interest Period;
then the Administrative Agent shall give the Company and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional LIBOR Loans, to Continue LIBOR
Loans or to Convert Prime Rate Loans into LIBOR Loans, and the Company shall, on
the last day(s) of the then current Interest Period(s) for the outstanding LIBOR
Loans, either prepay such Loans or Convert such Loans into Prime Rate Loans in
accordance with Section 2.8 hereof.
- 32 -
5.3. ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain LIBOR
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Company thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
LIBOR Loans shall be suspended until such time as such Lender may again make and
maintain LIBOR Loans (in which case the provisions of Section 5.4 hereof shall
be applicable).
5.4. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make LIBOR Loans or to Continue, or to Convert Prime Rate Loans into, LIBOR
Loans shall be suspended pursuant to Section 5.1 or 5.3 hereof, such Lender's
LIBOR Loans shall be automatically Converted into Prime Rate Loans on the last
day(s) of the then current Interest Period(s) for LIBOR Loans (or, in the case
of a Conversion required by Section 5.1 (b) or 5.3 hereof, on such earlier date
as is required pursuant to applicable law or regulation and as such Lender may
specify to the Company with a copy to the Administrative Agent) and, unless and
until such Lender gives notice as provided below that the circumstances
specified in Section 5.1 or 5.3 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's LIBOR Loans
have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
LIBOR Loans shall be applied instead to its Prime Rate Loans;
and
(b) all Loans that would otherwise be made or
Continued by such Lender as LIBOR Loans shall be made or
Continued instead as Prime Rate Loans, and all Prime Rate Loans
of such Lender that would otherwise be Converted into LIBOR
Loans shall remain as Prime Rate Loans.
If such Lender gives notice to the Company with a copy to the
Administrative Agent that the circumstances specified in Section 5.1 or 5.3
hereof that gave rise to the Conversion of such Lender's LIBOR Loans pursuant to
this Section 5.4 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when LIBOR Loans made by other
Lenders are outstanding, such Lender's Prime Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding LIBOR Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding LIBOR Loans and by such
Lender are held pro rata (as to principal amounts, Types and Interest Periods)
in accordance with their respective Commitments.
5.5. COMPENSATION. The Company shall pay to the Administrative Agent
for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
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(a) any payment, mandatory or optional prepayment
or Conversion of a LIBOR Loan made by such Lender for any
reason (including, without limitation, the acceleration of the
Loans pursuant to Section 10 hereof) on a date other than the
last day of the Interest Period for such Loan; or
(b) any failure by the Company for any reason
(including, without limitation, the failure of any of the
conditions precedent specified in Section 7 hereof to be
satisfied) to borrow, Continue or Convert a LIBOR Loan from
such Lender on the date for such borrowing, Continuation or
Conversion specified in the relevant notice given pursuant to
Sections 2.2 and 4.5 hereof.
Without limiting the effect of the preceding sentence, such compensation
shall, if so requested, include an amount equal to the product of: (a) the
amount so paid, prepaid, Converted or not borrowed times (b) the excess of (i)
the rate of interest that otherwise would have accrued on the principal amount
so paid, prepaid, Converted or not borrowed for the period from the date of such
payment, prepayment, Conversion or failure to borrow to the last day of the then
current Interest Period for such Loan (or, in the case of a failure to borrow,
the Interest Period for such Loan that would have commenced on the date
specified for such borrowing) at the applicable rate of interest for such Loan
provided for herein (excluding, however, any Applicable Margin included therein)
less (ii) the rate of interest that otherwise would have accrued on such
principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market (for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), which product shall be multiplied by a fraction the numerator of which
is the number of days from the date of such occurrence to the last day of the
applicable Interest Period and the denominator of which is 360 days.
5.6. RATE SELECTION. If the Company has provided a notice of borrowing
under Section 4.5 hereof and any Lender determines (which determination shall be
conclusive and binding on the Company) that:
(a) deposits of the necessary amount for the
selected Interest Period are not available to such Lender in
either the London interbank market or the market for Federal
funds transactions or, by reason of circumstances affecting
such markets, adequate and reasonable means do not exist for
ascertaining the LIBO Rate or the Federal Funds Rate for such
Interest Period; or
(b) the LIBO Rate or the Federal Funds Rate, as
applicable, will not adequately and fairly reflect the cost to
such Lender of making or funding a Loan for such Interest
Period; or
(c) the making or funding of Loans has become
impracticable as a result of any event occurring after the date
of this
- 34 -
Agreement which, in the opinion of such Lender, materially and
adversely affects such Loans or the London interbank market or
the market for Federal funds transactions;
then such Lender shall notify the Company of this condition and of the rate that
the Lender has selected to apply to such Loan pursuant to the following
sentence, provided, however, that the Company shall have the opportunity to
withdraw such notice of borrowing prior to the making of the Loan on the date
specified in the notice. If, after such notice from the Lender, the Company does
not withdraw such notice of borrowing prior to the making of the Loan, then any
notice of borrowing shall be deemed to be a notice to request a borrowing of
such Loan at such higher rate per annum, if any, which in such Lender's opinion
will adequately fairly compensate such Lender for the cost to such Lender of
making or funding such Loan plus the Applicable Margin under this Agreement; or
if such Lender determines that no such rate exists, then such Lender shall
promptly notify the Agent and shall not be obligated to fund the Loan.
Section 6. GUARANTEE.
6.1. GUARANTEE. The Subsidiary Guarantors hereby jointly and severally
guarantee to each Lender and each Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to, and the Notes held by each Lender of, the Company and all other
amounts from time to time owing to the Lenders or any Agent by the Company under
this Agreement and under the Notes and by any Obligor under any of the other
Loan Documents, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "GUARANTEED OBLIGATIONS"). The
Subsidiary Guarantors hereby further jointly and severally agree that if the
Company shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, the Subsidiary
Guarantors will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
6.2. OBLIGATIONS UNCONDITIONAL. The obligations of each Subsidiary
Guarantor under Section 6.1 hereof are absolute and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Company or any Obligor (other than such
Subsidiary Guarantor) under this Agreement, the Notes, the other Loan Documents
or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 6.2 that the obligations of the
Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Subsidiary Guarantors hereunder
which shall remain absolute and unconditional as described above:
- 35 -
(i) at any time or from time to time, without
notice to the Subsidiary Guarantors, the time for any performance of
or compliance with any of the Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of this Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed
Obligations shall be accelerated, or any of the Guaranteed
Obligations shall be modified, supplemented or amended in any
respect, or any right under this Agreement or the Notes or any other
agreement or instrument referred to herein or therein shall be
waived or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or
in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in
favor of, any Agent or Agents or any Lender or Lenders as security
for any of the Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment,
demand of payment, protest and all notices whatsoever, and any requirement that
any Agent or any Lender exhaust any right, power or remedy or proceed against
the Company under this Agreement or the Notes or the other Loan Documents or any
other agreement or instrument referred to herein or therein, or against any
other Person under any other guarantee of, or security for, any of the
Guaranteed Obligations.
6.3. REINSTATEMENT. The obligations of the Subsidiary Guarantors under
this Section 6 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of the Company in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the Subsidiary Guarantors jointly
and severally agree that they will indemnify each Agent and each Lender on
demand for all reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by such Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
6.4. SUBROGATION. Each Subsidiary Guarantor hereby agrees that, until
the payment and satisfaction in full of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders under this
Agreement, such Subsidiary Guarantor shall not exercise any right or remedy
arising by reason of any performance by such Subsidiary Guarantor of its
guarantee in Section 6.1 hereof, whether by subrogation or otherwise, against
the Company or any other Obligor or any other guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations.
- 36 -
6.5. REMEDIES. The Subsidiary Guarantors jointly and severally agree
that, as between the Subsidiary Guarantors and the Lenders, the obligations of
the Company under this Agreement and the Notes may be declared to be forthwith
due and payable as provided in Section 10 hereof (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Section 10(g) or (h)) for purposes of Section 6.1 hereof notwithstanding any
stay, injunction or other prohibition preventing such declaration (or such
obligations from becoming automatically due and payable) as against the Company
and that, in the event of such declaration (or such obligations being deemed to
have become automatically due and payable), such obligations (whether or not due
and payable by the Company) shall forthwith become due and payable by the
Subsidiary Guarantors for purposes of said Section 6.1.
6.6. CONTINUING GUARANTEE. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.7. RIGHTS OF CONTRIBUTION. The Subsidiary Guarantors hereby agree,
as between themselves, that if any Subsidiary Guarantor (an "EXCESS FUNDING
GUARANTOR") shall pay Guaranteed Obligations in excess of such Excess Funding
Guarantor's Pro Rata Share (as defined below) of such Guaranteed Obligations
(such excess payment, an "EXCESS PAYMENT"), each other Subsidiary Guarantor
shall, on demand of such Excess Funding Guarantor (but subject to the next
sentence hereof), pay to such Excess Funding Guarantor an amount equal to such
other Subsidiary Guarantor's Pro Rata Share (such Pro Rata Share, for the
purpose of determining the amount due to the Excess Funding Guarantor under this
Section 6.7, to be determined without reference to the Excess Funding Guarantor)
of such Excess Payment. The payment obligation of each other Subsidiary
Guarantor to an Excess Funding Guarantor under this Section 6.7 shall be
subordinate and subject in right of payment to the prior payment in full of the
Obligations, and such Excess Funding Guarantor shall not exercise any right or
remedy with respect to such Excess Payment until payment and satisfaction in
full of the Obligations. For the purposes hereof, "PRO RATA SHARE" shall mean,
with respect to each Subsidiary Guarantor, the ratio (expressed as a percentage)
of (a) the net worth of such Subsidiary Guarantor (determined on an
unconsolidated basis in accordance with GAAP as of the last day of the fiscal
quarter of such Subsidiary Guarantor most recently ended prior to the date such
Person became a Subsidiary Guarantor) to (b) the sum of the amounts determined
pursuant to clause (a) for all of the Subsidiary Guarantors.
6.8. LIMITATION ON GUARANTEE OBLIGATIONS. In any action or proceeding
involving any state corporate or partnership law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 6.1 hereof would otherwise, taking into account the provisions of
Section 6.7 hereof, be held or determined to be void, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount
of its liability under said Section 6.1, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability shall, without
any further action by such Subsidiary Guarantor, any Lender, any Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
- 37 -
Section 7. CONDITIONS PRECEDENT.
7.1. INITIAL LOAN. The obligation of any Lender to make its initial
Loan hereunder is subject to the satisfaction of each of the following
conditions (with each document being satisfactory to each Agent and each Lender
in form and substance):
(a) CORPORATE DOCUMENTS. The receipt by the
Administrative Agent of (i) certified copies of the charter and
by-laws (or equivalent constitutional documents) of each
Obligor and Genzyme Securities Corporation, (ii) a long-form
good standing certificate issued by the Secretary of State of
the jurisdiction of incorporation or organization of each
Obligor and Genzyme Securities Corporation and (iii) certified
copies of all corporate or partnership authority for each
Obligor (including, without limitation, board of director
resolutions and evidence of the incumbency, including specimen
signatures, of officers) with respect to the execution,
delivery and performance of such of the Loan Documents to which
such Obligor is intended to be a party and each other document
to be delivered by such Obligor from time to time in connection
herewith and the extensions of credit hereunder (and each Agent
and each Lender may conclusively rely on such certificate until
it receives notice in writing from such Obligor to the
contrary).
(b) OFFICER'S CERTIFICATE. The receipt by the
Administrative Agent of a certificate of a senior officer of
the Company, dated the Closing Date, to the effect set forth in
the first sentence of Section 7.2 hereof.
(c) BORROWING NOTICE. The receipt by the
Administrative Agent of the notice of borrowing required by
Sections 2.2 and 4.5 hereof in the form of EXHIBIT G.
(d) OPINIONS OF COUNSEL TO THE OBLIGORS. The
receipt by the Administrative Agent of an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ & Dodge LLP, special counsel to the
Obligors, substantially in the form of EXHIBIT B hereto and
covering such other matters as any Agent or any Lender may
reasonably request.
(e) NOTES. The receipt by the Administrative Agent
of Notes, duly completed and executed for each Lender.
(f) PLEDGE AGREEMENT. The receipt by the
Administrative Agent of the Pledge Agreement in the form of
EXHIBIT F, together with the certificates for all shares of
capital stock of Genzyme Securities Corporation pledged
thereunder and undated executed stock powers.
(g) SEARCH RESULTS. The receipt by the
Administrative Agent of results satisfactory to the
Administrative Agent of UCC, Federal and
- 38 -
state tax lien and judgment searches conducted by a search firm
acceptable to the Administrative Agent with respect to each
Obligor in each jurisdiction specified by the Administrative
Agent.
(h) INSURANCE. The receipt by the Administrative
Agent of (i) certificates of insurance evidencing the existence
of all insurance required to be maintained pursuant to Section
9.4 hereof and (ii) a certificate of a senior financial officer
of the Company stating that the insurance obtained by it in
accordance with the requirements of said Section 9.4 is in full
force and effect and that all premiums then due and payable
thereon have been paid.
(i) REPAYMENT OF EXISTING INDEBTEDNESS. Evidence
that the principal of and interest on, and all other amounts
owing in respect of, the Indebtedness (including, without
limitation, any contingent or other amounts payable in respect
of letters of credit) indicated on SCHEDULE 8.12A hereto that
is to be repaid on the Closing Date shall have been (or shall
be simultaneously) paid in full, that any commitments to extend
credit under the agreements or instruments relating to such
Indebtedness shall have been canceled or terminated and that
all Guarantees in respect of, and all Liens securing, any such
Indebtedness shall have been released (or arrangements for such
release satisfactory to the Required Lenders shall have been
made); in addition, the Administrative Agent shall have
received from any Person holding any Lien securing any such
Indebtedness, such Uniform Commercial Code termination
statements, mortgage releases and other instruments, in each
case in proper form for recording, as the Administrative Agent
shall have requested to release and terminate of record the
Liens securing such Indebtedness (or arrangements for such
release and termination satisfactory to the Required Lenders
shall have been made).
(j) NO ADVERSE LITIGATION OR PROCEEDING. The
receipt by the Administrative Agent of a certificate of a
senior officer of the Company to the effect that, on and as of
the Closing Date and except as disclosed in SCHEDULE 8.3
hereto, no litigation or proceeding shall exist or (to the
Company's knowledge) be threatened against the Company or any
of its Subsidiaries, and, to the Company's knowledge, no law or
regulation shall have been proposed (unless withdrawn) that
could reasonably be expected to (i) have a Material Adverse
Effect, (ii) materially and adversely affect the ability of the
Obligors to perform their respective obligations under this
Agreement or the other Loan Documents, (iii) materially and
adversely affect the rights and remedies of the Agents and the
Lenders under this Agreement or the Loan Documents or (iv)
purport to adversely affect the Revolving Credit Loans or
Commitments.
- 39 -
(k) CONSENTS, ETC. The receipt by the
Administrative Agent of a certificate of a senior officer of
the Company to the effect that, on and as of the Closing Date,
all necessary governmental and third party consents and
approvals in connection with the transactions contemplated by
this Agreement have been obtained and remain in effect and that
all applicable waiting periods have expired.
(1) PAYMENT OF FEES. The payment by the Company of
such fees as the Company shall have agreed to pay or deliver to
any Lender or any Agent in connection herewith, including,
without limitation, any and all arrangement and administrative,
syndication, or documentation fees due to any Agent, up-front
fees due to the Lenders, and the reasonable fees and expenses
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Israels LLP, special counsel to Fleet
in connection with the negotiation, preparation, execution and
delivery of this Agreement and the Notes and the other Loan
Documents and the making of the extensions of credit hereundcr
(to the extent that statements for such fees and expenses have
been delivered to the Company).
(m) OTHER DOCUMENTS. Such other documents as any
Agent or any Lender or special counsel to Fleet may reasonably
request.
7.2. INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT. The obligation of
any Lender to make any Loan or otherwise extend any credit to the Company upon
the occasion of each borrowing or other extension of credit hereunder is subject
to the further conditions precedent that, both immediately prior to such
borrowing or other extension of credit and also after giving effect thereto and
to the intended use thereof:
(a) no Default shall have occurred and be
continuing; and
(b) the representations and warranties made by the
Company in Section 8 hereof, and by each Obligor in each of the
other Loan Documents to which it is a party, shall be true and
complete in all material respects on and as of the date of the
making of such Loan or other extension of credit with the same
force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date).
Each notice of borrowing by the Company hereunder shall constitute a
certification by the Company to the effect set forth in the preceding sentence
(both as of the date of such notice or request and, unless the Company otherwise
notifies the Administrative Agent prior to the date of such borrowing or
issuance, as of the date of such borrowing or issuance).
Section 8. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Agents and the Lenders that:
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8.1. EXISTENCE. Each of the Company and the Material Subsidiaries: (a)
is a corporation, partnership, limited liability company or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate, partnership
or other power, and has all material governmental licenses, authorizations,
consents and approvals necessary to own its assets and carry on its business as
now being or as proposed to be conducted, except to the extent that the failure
to have any such license, authorization, consent or approval would not
reasonably be expected (either individually or in the aggregate) to have a
Material Adverse Effect; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify would not
reasonably be expected (either individually or in the aggregate) to have a
Material Adverse Effect.
8.2. FINANCIAL CONDITION. The Company has heretofore furnished to each
of the Lenders the audited Consolidated balance sheet of the Company as at
December 31, 2002 and the related Consolidated statements of earnings,
shareholders' equity and cash flows of the Company for the fiscal year ended on
said date, with the report thereon of PricewaterhouseCoopers, and the unaudited
Consolidated balance sheet of the Company as at September 30, 2003, and the
related unaudited Consolidated statements of income and cash flows for the
period ended on said date. All such financial statements fairly present in all
material respects the Consolidated financial position of the Company as at said
dates and the Consolidated results of its operations for the fiscal year and
period ended on said dates (subject, in the case of such financial statements as
at September 30, 2003, to normal year-end audit adjustments), all in accordance
with GAAP and practices applied on a consistent basis. The Company does not on
the date hereof have any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected or provided
for in said balance sheets or the notes thereto as at said dates. Since
September 30, 2003, there has been no material adverse change in the business,
operations or financial condition of the Company and its Subsidiaries, taken as
a whole, from that set forth in said financial statements as at said date.
8.3. LITIGATION. Except as disclosed in SCHEDULE 8.3 hereto, (a) there
are no legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of the Company) threatened against the Company, or any of its Subsidiaries that,
if adversely determined (i) could (either individually or in the aggregate) be
reasonably expected to (A) have a material adverse effect on the business,
condition (financial or otherwise), operations, performance, properties, or
prospects of the Company and its Subsidiaries, taken as a whole, other than the
litigation described in writing prior to September 30, 2003 (the "Pre-Disclosed
Litigation"); (B) adversely affect the ability of the Company or any Subsidiary
Guarantor to perform its obligations under the Loan Documents; or (C) adversely
affect the rights and remedies of the Administrative Agent and the Lenders under
the Loan Documents; or (ii) purports to adversely affect the credit facility
described herein; and (b) there shall have been no adverse change in the status,
or financial effect on the Company or any of its Subsidiaries, of the
Pre-Disclosed Litigation from that described in writing prior to September 30,
2003.
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8.4. NO BREACH. The execution and delivery of this Agreement and the
Notes and the other Loan Documents, the consummation of the transactions herein
and therein contemplated and the compliance with the terms and provisions hereof
and thereof do not and will not: (a) conflict with, violate or result in a
breach of, or require any consent under the charter or by-laws (or equivalent
constitutional documents) of any Obligor; (b) violate or result in a breach of
any applicable law or regulation; (c) conflict with, violate or result in a
breach of, or require any consent under any order, writ, injunction or decree of
any court or governmental authority or agency, or any agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any of them
or any of their Property is bound or to which any of them is subject; (d)
constitute a default, or result in the termination of any commitment to extend
credit, under any such agreement or instrument; or (e) result in the creation or
imposition of any Lien upon any Property of the Company or any of its
Subsidiaries pursuant to the terms of any such agreement or instrument (except
for any Lien created by the Pledge Agreement); except to the extent, with
respect to the foregoing clauses (c) and (d), any such conflict, violation,
breach or default, or the failure to have any such consent, (i) could not
reasonably be expected (either individually or in the aggregate) to have a
Material Adverse Effect and (ii) does not and will not result in any liability
of the Administrative Agent or any Lender or in the acceleration or required
prepayment of any Indebtedness or the termination of any commitments to extend
credit.
8.5. ACTION. Each Obligor has all necessary corporate or partnership
power, authority and legal right to execute, deliver and perform its obligations
under each of the Loan Documents to which it is a party; the execution, delivery
and performance by each Obligor of each of the Loan Documents to which it is a
party have been duly authorized by all necessary corporate or partnership action
on its part (including, without limitation, any required shareholder approvals);
and this Agreement has been duly and validly executed and delivered by each
Obligor and constitutes, and each of the Notes and the other Loan Documents to
which it is a party when executed and delivered by such Obligor (in the case of
the Notes, for value) will constitute, its legal, valid and binding obligation,
enforceable against each Obligor in accordance with its terms.
8.6. APPROVALS. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by any Obligor of the Loan Documents to which it is a party or for
the legality, validity or enforceability hereof or thereof, except for
approvals, authorizations, consents, filings and registrations that have already
been obtained or made.
8.7. USE OF CREDIT. None of the Obligors is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin
Stock, and no part of the proceeds of the Loans or other extensions of credit
hereunder will be used to buy or carry any Margin Stock.
8.8. ERISA. Each Plan, and, to the Knowledge of the Company, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no event
or condition has occurred and is continuing as to which
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the Company would be under an obligation to furnish a report to the Lenders
under Section 9. l(c) hereof.
8.9. TAXES. The Company and its Subsidiaries have filed all income tax
returns and all other material tax returns in all jurisdictions in which such
returns are required to have been filed by any of them and have paid all taxes
shown to be due and payable on such returns and all other taxes and assessments
in any material amount payable by any of them pursuant to any assessment
received by the Company or any of its Subsidiaries, except for any such taxes
and assessments (x) the amount, applicability or validity of which is currently
being contested in good faith by appropriate proceedings and (y) with respect to
which the Company or one of its Subsidiaries (as the case may be) has set aside
on its books adequate reserves in accordance with GAAP. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes and other governmental charges are, in the opinion of the Company,
adequate. The Company has not given or been requested to give a waiver of the
statute of limitations relating to the payment of any Federal, state, local and
foreign taxes or other impositions in respect of the Company or any of its
Subsidiaries, except for those waivers obtained or applied for in the ordinary
course of the Company's or such Subsidiary's business of which the Company has
given written notice to the Administrative Agent and the Lenders.
8.10. INVESTMENT COMPANY ACT. None of the Obligors is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
8.11. PUBLIC UTILITY HOLDING COMPANY ACT. None of the Obligors is a
"holding company", or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or an "electric company," within the
meaning of
Massachusetts General Laws, Chapter 164. as amended.
8.12. BORROWING AGREEMENTS AND LIENS.
(a) Part A of SCHEDULE 8.12 hereto includes a
complete and correct list, as of the date hereof, of each
credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement
providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit)
to, or guarantee by, the Company or any of its Subsidiaries the
aggregate principal or stated amount of which equals or exceeds
(or may equal or exceed) $1,000,000, and the aggregate
principal or stated amount outstanding or that may become
outstanding under each such arrangement is, as of the date
hereof, correctly described in Part A of said SCHEDULE 8.12.
(b) Part B of SCHEDULE 8.12 hereto is a complete
and correct list, as of the date hereof, of each Lien securing
Indebtedness of any Person the aggregate principal or stated
amount of which equals or
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exceeds (or may equal or exceed) $1,000,000 and covering any
property of the Company or any of its Subsidiaries, and the
aggregate Indebtedness secured (or that may be secured) by each
such Lien and the property covered by each such Lien is, as of
the date hereof, correctly described in said SCHEDULE 8.12.
8.13. COMPLIANCE WITH LAWS INCLUDING ENVIRONMENTAL AND SAFETY MATTERS.
Each of the Company and its Subsidiaries is in compliance in all material
respects with all applicable federal, state, county and local statutes, laws,
rules, regulations, codes and ordinances and orders and directives including,
without limitation, all Environmental Laws, health and safety statutes and
regulations and specifically the Federal Food, Drug and Cosmetic Act, and the
regulations promulgated thereunder, the effect of the non-compliance with which
would have a Material Adverse Effect. To the knowledge of the Company, the
Company and its Subsidiaries are not subject to any material judicial or
administrative proceedings alleging the violation of any applicable law or
regulation and neither the Company or its Subsidiaries is the subject of any
federal, state or local investigation regarding, among other matters, the
Release of any Hazardous Material into the environment, the results of which
would reasonably be likely to materially and adversely affect the Company and
its Subsidiaries' financial condition, operations, business or prospects, taken
as a whole. Neither the Company or its Subsidiaries has any contingent
liabilities in connection with any Release of any Hazardous Material into the
environment which would reasonably be likely to materially and adversely affect
the Company and its Subsidiaries' financial condition, operations, businesses or
prospects, taken as a whole.
8.14. SUBSIDIARIES, ETC. Set forth on SCHEDULE 8.14 hereto is a list of
all of the Subsidiaries of the Company as of the date hereof complete and
correct in all material respects, together with, for each such Subsidiary, (i)
the jurisdiction of organization of such Subsidiary, (ii) each Person holding
ownership interests in such Subsidiary, (iii) the nature of the ownership
interests held by each such Person and the percentage of ownership of such
Subsidiary represented by such ownership interests, and (iv) a list of each
Subsidiary of the Borrower, the total assets of which, as of December 31, 2002
or as of October 31, 2003, equaled or exceeded three percent (3%) of the
Consolidated total assets of the Borrower and its Subsidiaries taken as a whole,
together, for each such Subsidiary, with an expression of the ratio, as of
December 31, 2002 or as of October 31, 2003, as applicable, of the total assets
of such Subsidiary to the Consolidated total assets of the Company and its
Subsidiaries, each as reported in the books and records of the Company and its
Subsidiaries, and as calculated in accordance with GAAP. Except as disclosed in
SCHEDULE 8.14 hereto, (x) each of the Company and its Subsidiaries owns, free
and clear of Liens, and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in SCHEDULE 8.14
hereto, and (y) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable.
8.15. TITLE TO ASSETS; ETC. The Company and its Subsidiaries own and
have on the date hereof good and marketable or merchantable title (subject only
to Liens permitted by Section 9.6 hereof) to the material Properties shown to be
owned in the audited financial statements referred to in Section 8.2 hereof
(other than properties disposed of in the ordinary course of business or
otherwise permitted to be disposed of pursuant to Section 9.5 hereof). The
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Company and its Subsidiaries own and have on the date hereof good and marketable
or merchantable title to, or lease, and enjoy on the date hereof peaceful and
undisturbed possession of, all material Properties (subject only to Liens
permitted by Section 9.6 hereof) that are necessary for the operation and
conduct of its businesses.
8.16. INTELLECTUAL PROPERTY RIGHTS. Except with respect to events or
matters which are not reasonably expected to have a Material Adverse Effect, (a)
the Company and its Subsidiaries own or license all material Intellectual
Property necessary for the conduct of its business as presently conducted; (b)
all material agreements pursuant to which the Company and its Subsidiaries
license the manufacture, marketing or sale of products employing its
Intellectual Property are in full force and effect; (c) no claims, demands,
suits, or proceedings are pending or, to the knowledge of the Company and its
Subsidiaries, threatened which impair their rights in any material Intellectual
Property used in the conduct of their business or any material agreement
relating thereto; and (d) the Company and its Subsidiaries have not infringed
(without any license therefor) any Intellectual Property of any other Person,
and the present conduct of the Company and its Subsidiaries' business does not
infringe any such rights in any way which would have a Material Adverse Effect.
8.17. TRUE AND COMPLETE DISCLOSURE. The reports, financial statements,
exhibits, schedules and other documents furnished by or on behalf of the
Obligors to the Administrative Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement and the other Loan
Documents or included herein or therein or delivered pursuant hereto or thereto,
when taken as a whole do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by the
Company and its Subsidiaries to the Administrative Agent and the Lenders in
connection with this Agreement and the other Loan Documents and the transactions
contemplated hereby and thereby will be true, complete and accurate in every
material respect, or (in the case of projections) based on reasonable estimates,
on the date as of which such information is stated or certified. There is no
fact known to the Company that could reasonably be expected to have a Material
Adverse Effect that has not been disclosed herein, in the other Loan Documents
or in a report, financial statement, exhibit, schedule, disclosure letter or
other writing furnished to the Lenders for use in connection with the
transactions contemplated hereby or thereby.
Section 9. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Lenders and the Agents that, so long as any Commitment, or Loan is outstanding
and until payment in full of all amounts payable by the Company hereunder:
9.1. FINANCIAL STATEMENTS ETC. The Company shall deliver to each of
the Lenders (either by delivering the following directly to the Lenders or by
providing access to copies of each of the following through a web-site, e-mail,
or other service in a manner acceptable to the Administrative Agent):
(a) as soon as available and in any event within
the later of 45 days after the end of the first three quarterly
fiscal periods of each fiscal
- 45 -
year of the Company or the deadline for the Company's Form 10-Q
filing for public record with the U.S. Securities and Exchange
Commission, Consolidated statements of earnings, shareholders'
equity and cash flows of the Company and its Subsidiaries for
such period and for the period from the beginning of the
respective fiscal year to the end of such period, and the
related Consolidated balance sheets of the Company and its
Subsidiaries as at the end of such period, setting forth in
each case in comparative form, to the extent such figures
appear therein, the corresponding Consolidated figures for the
corresponding periods in the preceding fiscal year accompanied
by a certificate of a senior financial officer of the Company,
which certificate shall state that said Consolidated financial
statements present fairly in all material respects the
Consolidated financial position and results of operations of
the Company and its Subsidiaries, in accordance with GAAP,
consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments);
(b) as soon as available and in any event within
the later of 90 days after the end of each fiscal year of the
Company or the deadline for the Company's Form 10-K filing for
public record with the U.S. Securities and Exchange Commission,
Consolidated statements of earnings, shareholders' equity and
cash flows of the Company and its Subsidiaries for such fiscal
year and the related Consolidated balance sheets of the Company
and its Subsidiaries as at the end of such fiscal year, setting
forth in each case in comparative form, to the extent such
figures appear therein, the corresponding Consolidated figures
for the preceding fiscal year, and accompanied by a report
thereon of independent certified public accountants of
recognized national standing, which report shall state that
said Consolidated financial statements present fairly in all
material respects the Consolidated financial position and
results of operations of the Company and its Subsidiaries as at
the end of, and for, such fiscal year in accordance with GAAP,
consistently applied;
(c) simultaneously with the delivery of the
financial statements required under Section 9.1(a) and (b)
above, (i) a copy of the Company's Form 10-Q or 10-K filing
made for the periods covered by such financial statements or,
if such filings are not available, a brief narrative
description of material businesses and financial trends and
developments and significant transactions that have occurred in
the period or periods covered thereby, together with (ii) a
Compliance Certificate as of the date of such financial
statements, in the form attached as EXHIBIT C hereto;
(d) promptly upon their becoming available, copies
of all (i) regular, periodic and special reports that the
Company shall have filed with the Securities and Exchange
Commission (or any governmental agency substituted therefor)
pursuant to the Securities Exchange Act of
- 46 -
1934, as amended (ii) financial statements, reports, notices or
proxy or other statements sent to shareholders of the Company,
(iii) business plans and financial statement forecasts, when
and to the extent prepared and distributed to other creditors
of the Company; and (iv) press releases and other statements
generally made available by the Company to the public
concerning material developments in the business of the
Company;
(e) as soon as possible and in any event within
five (5) days after any officer of Company obtains knowledge
thereof: (i) Company's failure to make any required payment to
any Plan in sufficient amount to comply with ERISA and the Code
on or before the due date for such payment; (ii) the occurrence
or expected occurrence of any "reportable event" under ERISA,
"prohibited transaction" or "accumulated funding deficiency"
with respect to any Plan; (iii) receipt by Company of any
notice (A) from a Multiemployer Plan regarding the imposition
of withdrawal liability; or (B) of the institution, or
expectancy of the institution, of any proceeding or any other
action which may result in the termination of any Plan, or
Company's withdrawal or partial withdrawal from any Plan;
(f) promptly after the Company knows that any
Default has occurred, a notice of such Default describing the
same in reasonable detail and, together with such notice or as
soon thereafter as possible, a description of the action that
the Company has taken or proposes to take with respect thereto
(a "Notice of Default");
(g) within thirty (30) days of obtaining knowledge
thereof, the Company shall provide Lender with a written notice
and reasonable description of any events or conditions which,
if they existed and were known to the Company on the date of
this Agreement, would have violated the warranty and
representation made in Section 8.16 (dealing with Intellectual
Property Rights);
(h) within sixty (60) days after the due date for
delivery of the items under Sections 9.1(a) and 9.l(b) hereof,
a listing of each Subsidiary of the Company, the total assets
of which equaled or exceeded, as of the end of the period
covered by such report, three percent (3%) of the Consolidated
total assets of the Company and its Subsidiaries taken as a
whole, together with, for each such Subsidiary, an expression
of the ratio of the total assets of such Subsidiary to the
Consolidated total assets of the Company and its Subsidiaries,
each as reported in the books and records of the Company and
its Subsidiaries and as calculated in accordance with GAAP;
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(i) immediately on the date of any change in Debt
Rating, the Company shall provide, in writing, to the
Administrative Agent notice of such change;
(j) from time to time such other information
regarding the Property, operations, business, financial
condition or prospects of the Company or any of its
Subsidiaries as any Lender or any Agent may reasonably request.
9.2. LITIGATION. Promptly after the Company obtains knowledge thereof,
the Company will give notice to each Lender of all legal or arbitral
proceedings, and of all proceedings by or before any governmental or regulatory
authority or agency, and any material development in respect of such legal or
other proceedings, affecting the Company or any of its Subsidiaries, except
proceedings that, if adversely determined, would not (either individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect.
9.3. EXISTENCE, ETC. The Company:
(a) (i) will preserve and maintain its legal
existence; (ii) will preserve and maintain and all of its
material rights, privileges, licenses and franchises; and (iii)
will cause each of its Material Subsidiaries to, preserve and
maintain its legal existence and all of its material rights,
privileges, licenses and franchises (PROVIDED that nothing in
this Section 9.3 shall prohibit any transaction expressly
permitted under Section 9.5 hereof);
(b) will, and will cause each of its Subsidiaries
to, comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory
authorities if failure to comply with such requirements could
reasonably be expected (either individually or in the
aggregate) to have a Material Adverse Effect;
(c) will, and will cause each of its Subsidiaries
to, pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or
on any of its Property prior to the date on which penalties
attach thereto, except for any such tax, assessment, charge or
levy the payment of which is being contested in good faith and
by proper proceedings and against which adequate reserves are
being maintained in accordance with GAAP consistently applied,
and except for any such tax, assessment, charge or levy the
failure to pay which would not have a Material Adverse Effect;
(d) will, and will cause each Obligor to, maintain
all of its Properties used or useful in its business in good
working order and condition, ordinary wear and tear excepted;
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(e) will, and will cause each of its Subsidiaries
to, keep adequate records and books of account, in which
complete entries will be made in accordance with GAAP
consistently applied; and
(f) will, and will cause each of its Material
Subsidiaries to, permit representatives of any Lender or any
Agent, upon reasonable advance notice to the Company or such
Material Subsidiary and during normal business hours, to
examine, copy and make extracts from its books and records, to
inspect any of its Properties, and to discuss its business and
affairs with its officers, all to the extent reasonably
requested by such Lender or the Administrative Agent (as the
case may be); PROVIDED THAT (i) the Agents and the Lenders will
endeavor to cooperate with the Company or such Material
Subsidiary in order to minimize any interference with its
normal business operations that may result from any such
inspection and (ii) except as otherwise provided in Section
12.3 hereof, all expenses of the Agents and the Lenders in
connection with the exercise of their rights under this Section
9.3(f) shall be for their own account.
9.4. INSURANCE. The Company will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations.
9.5. PROHIBITION OF FUNDAMENTAL CHANGES.
(a) MERGER, CONSOLIDATION, ETC. The Company will
not, nor will it permit any of its Subsidiaries to, enter into
any transaction of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution).
(b) ACQUISITIONS. The Company will not, nor will it
permit any of its Subsidiaries to, acquire any business or
Property from, or capital stock of, or be a party to any
acquisition of, any Person.
(c) SALE OF ASSETS. The Company will not, nor will
it permit any of its Subsidiaries to, convey, sell, lease,
transfer or otherwise dispose of, in one transaction or a
series of transactions, any part of its business or Property,
whether now owned or hereafter acquired (including, without
limitation, receivables and leasehold interests) other than the
sale of inventory in the course of business.
(d) EXCEPTIONS. Notwithstanding the foregoing
provisions of this Section 9.5 (provided, however, that nothing
in the following clauses shall permit the Company to effect a
transaction, disposition, or transfer that is prohibited by the
Pledge Agreement):
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(i) any Subsidiary of the Company may be merged or
consolidated with or into, or have its assets liquidated and
distributed to, the Company or any other Subsidiary of the Company;
PROVIDED that (x) if any such merger or consolidation shall be with
the Company, the Company shall be the Person surviving such merger
or consolidation, (y) if any such merger or consolidation shall be
between any Subsidiary of the Company and a Wholly Owned Subsidiary
of the Company, such Wholly Owned Subsidiary shall be the Person
surviving such merger or consolidation, (z) if any such merger or
consolidation shall be between a Subsidiary Guarantor and a
Subsidiary of the Company that is not a Subsidiary Guarantor (other
than Genzyme Securities Corporation), and such Subsidiary Guarantor
is not the continuing or surviving Person, then the continuing or
surviving Person shall have assumed all of the obligations of such
Subsidiary Guarantor hereunder and under the other Loan Documents
and (aa) if any such merger or consolidation shall be between
Genzyme Securities Corporation and a Subsidiary of the Company that
is not a Subsidiary Guarantor, and Genzyme Securities Corporation is
not the continuing or surviving Person, then the Company and its
Subsidiaries shall, or shall cause the holder of the stock in such
continuing or surviving Person, to execute and deliver a Pledge
Agreement in substantially the form of EXHIBIT F, together with the
certificates for all shares of capital stock of the continuing or
surviving Person pledged thereunder and undated stock powers;
(ii) the Company and its Subsidiaries may acquire
any assets used or useful in the lines of business permitted under
Section. 9.10 or the stock or other equity interests or rights as a
holder of indebtedness of any Person that is engaged in a line of
business permitted to the Company under Section 9.10 or merge any
Person that is in a line or lines of business permitted under
Section 9.10 with the Company or a Subsidiary or the Company or a
Subsidiary with any such Person (provided that the conditions in the
provisos in Section 9.5(d)(i) are satisfied with respect to such
merger) provided that at the time of the consummation of any such
transaction and after giving effect thereto, the Company shall be in
compliance with the covenants in Section 9.9 as of the end of the
most recent fiscal quarter or annual period of the Company and the
transaction will not be reasonably likely to result in the
noncompliance with such financial covenants;
(iii) the Company or any of its Subsidiaries may
purchase inventory and other Property to be sold or used in the
ordinary course of business, make Investments permitted by Section
9.8 hereof and make Capital Expenditures in the ordinary course of
its business;
(iv) the Company or any Subsidiary of the Company
may convey, sell, lease, loan, transfer or otherwise dispose of any
or all of its Property to the Company or any other Subsidiary of the
Company (and the Company or such other Subsidiary may acquire such
Property); PROVIDED that if any such conveyance, sale, lease, loan,
transfer or other disposition is to a Subsidiary (other
- 50 -
than Genzyme Securities Corporation) that is not a Subsidiary
Guarantor and relates to all or any material part of the Property of
the Company or a Subsidiary Guarantor, then the Company shall cause
such transferee Subsidiary to assume, and such transferee Subsidiary
shall assume, all of the obligations of the Company or such
Subsidiary Guarantor hereunder and under the other Loan Documents;
and PROVIDED, further, that the Company or such Subsidiary Guarantor
shall remain fully obligated as an Obligor hereunder;
(v) the Company or any Subsidiary may convey, sell,
lease, transfer or otherwise dispose of any non-material Property
(of the Company and its Subsidiaries, taken as a whole) including
equity interests in any Person and the licensing of patents and
product rights; and
(vi) the Company or any Subsidiary may lease or
sublease any of its real Property.
9.6. LIMITATION ON LIENS. The Company will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens in existence on the date hereof,
including, without limitation, Liens required to be listed on
SCHEDULE 8.12 (parts A and B) hereto (excluding, however, Liens
securing Indebtedness to be repaid with the proceeds of Loans
hereunder, as indicated on said SCHEDULE 8.12 (parts A and B),
from and after the date of such repayment);
(b) Liens imposed by any governmental authority for
taxes, assessments or charges not in excess of $1,000,000 or
not yet due or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or the
affected Subsidiaries, as the case may be, in accordance with
GAAP;
(c) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business that are not overdue or that are
being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained or the
books of the Company or the affected Subsidiaries, as the case
may be, in accordance with GAAP;
(d) pledges or deposits under worker's
compensation, unemployment insurance and other social security
legislation;
(e) (i) deposits to secure the performance of bids,
trade contracts (other than for Indebtedness), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like
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nature incurred in the ordinary course of business and (ii)
Liens arising from a seller's title retention provisions with
respect to goods or services acquired in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of
business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of Property or
imperfections in title thereto that, in the aggregate, are not
material in amount, and that do not in any case materially
detract from the value of the Property subject thereto or
interfere with the ordinary conduct of the business of the
Company or any of its Subsidiaries;
(g) Liens on Property of any Person that becomes a
Subsidiary of the Company after the date hereof, PROVIDED that
such Liens are in existence at the time such Person becomes a
Subsidiary of the Company and were not created in anticipation
thereof;
(h) Liens upon fixed or capital assets to secure
Purchase Money Indebtedness or Capital Lease Obligations of the
Company or a Subsidiary; PROVIDED, THAT, (i) such Lien does not
extend to or cover any other Property of the Company or such
Subsidiary and (ii) such Lien does not secure any Indebtedness
other than the Indebtedness so incurred;
(i) Intentionally omitted;
(j) Liens on the Company's new headquarters
facility located in Cambridge,
Massachusetts securing the
repayment of the Indebtedness permitted under Section 9.7(i);
(k) Liens arising from or upon any judgment or
award, provided that such judgment or award is being contested
in good faith by proper appeal proceedings, such judgment or
award is not secured by any Lien which is not discharged within
thirty (30) days, and only so long as execution thereon shall
be stayed;
(1) Liens securing Indebtedness otherwise permitted
under Section 9.7 (other than Subordinated Debt) that does not
exceed, in the aggregate, $1,000,000 at any one time
outstanding; and
(m) Liens now or hereafter granted to the Agents or
Lenders under the Loan Documents.
9.7. INDEBTEDNESS. The Company will not, nor will it permit any of its
Subsidiaries to, create, incur, assume, or suffer to exist any Indebtedness
except:
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(a) Indebtedness to the Lenders hereunder and under
the other Loan Documents;
(b) Indebtedness outstanding on the date hereof
including Indebtedness in excess of $1,000,000 that is required
to be listed on SCHEDULE 8.12 hereto (excluding however, the
Indebtedness to be repaid with the proceeds of Loans hereunder,
as indicated on said SCHEDULE 8.12, from and after the date of
such repayment), other than Indebtedness listed on SCHEDULE
9.7(b) hereto;
(c) Indebtedness of (i) Subsidiaries of the Company
to the Company, (ii) the Company to any of its Subsidiaries or
(iii) of Subsidiaries to Subsidiaries, PROVIDED, HOWEVER, that
any Indebtedness of the Company to any of its Subsidiaries
(other than the Subsidiary Guarantors and Genzyme Securities
Corporation), and any Indebtedness of any Subsidiary Guarantor
or Genzyme Securities Corporation to any of the Company's other
Subsidiaries (other than the Subsidiary Guarantors and Genzyme
Securities Corporation), shall be subject to a subordination
agreement unconditionally providing that: (x) such Indebtedness
is subordinate and subject in right of payment to the prior
payment in full of the Obligations; (y) that no payments shall
be made on such Indebtedness, nor shall the holder of such
Indebtedness exercise any right or remedy with respect to such
Indebtedness, until payment and satisfaction in full of the
Obligations; and (z) notwithstanding clauses (x) and (y),
payments may be made on account of such Indebtedness UNLESS
there has occurred an Event of Default that is continuing or
such payment(s) would result in an Event of Default;
(d) Indebtedness constituting Purchase Money
Indebtedness or Capital Lease Obligations incurred in the
ordinary course of Company's or such Subsidiaries' business;
(e) Indebtedness under or in respect of currency
exchange contracts or interest rate protection obligations
incurred in the ordinary course of business;
(f) Indebtedness in connection with performance
bonds or letters of credit obtained and issued in the ordinary
course of business, including letters of credit related to
insurance associated with claims for work-related injuries;
(g) Subordinated Debt;
(h) Indebtedness incurred to renew, extend,
refinance or refund any Indebtedness expressly permitted by any
of the clauses of this Section 9.7;
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(i) Indebtedness up to $130,000,000, incurred in
connection with the construction of the Company's new
headquarters facility located in Cambridge, Massachusetts; and
(j) additional Indebtedness of the Company and its
Subsidiaries up to but not exceeding the greater of (a)
$700,000,000 or (b) ten percent (10%) of the book value of the
Consolidated Tangible Assets, calculated in accordance with
GAAP (in determining whether additional Indebtedness exceeds
the $700,000,000 or ten percent (10%) maximum under this
Section 9.7(j), any Indebtedness of the Company or any
Subsidiary that is Guaranteed by the Company or any Subsidiary,
collectively with the Indebtedness consisting of any Guarantee
of such Subsidiary's or Company's Indebtedness, shall together
be deemed a single item of Indebtedness (in the amount of the
primary obligor's Indebtedness)).
9.8. INVESTMENTS. The Company will not, nor will it permit any of its
Subsidiaries to, make or permit to remain outstanding any Investments except
Investments made in the ordinary course of business of the Company or its
Subsidiaries or that would be permitted under the terms of Section 9.5.
9.9. FINANCIAL COVENANTS.
(a) CONSOLIDATED QUICK RATIO. The Company will not
permit the Consolidated Quick Ratio on the last day of any
fiscal quarter of the Company to be less than 1.50 to 1.00
(commencing with the fiscal quarter of the Company ending in
December, 2003).
(b) CONSOLIDATED INTEREST COVERAGE RATIO. The
Company will not permit the Consolidated Interest Coverage
Ratio for any period of four consecutive fiscal quarters of the
Company (commencing with the period of four consecutive fiscal
quarters of the Company ending in December, 2003) to be less
than 5.00 to 1.00.
(c) CONSOLIDATED LEVERAGE RATIO. The Company will
not permit, as of the last day of any fiscal quarter
(commencing with the fiscal quarter of the Company ending in
December, 2003), the ratio of (a) Consolidated Funded Debt less
all Unrestricted Cash and Marketable Investments of the Company
and its Consolidated Subsidiaries in excess of $200,000,000; to
(b) EBITDA of the Company for the period of four consecutive
fiscal quarters then ended to exceed 2.00 to 1.00.
9.10. LINES OF BUSINESS. The Company will not, and will not permit any
of its Subsidiaries to, engage to any significant extent in any line or lines of
business activity other than the biotechnology, pharmaceutical, medical devices,
therapeutic products, medical products, and medical services and diagnostic
services businesses.
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9.11. USE OF PROCEEDS. The Company will use the proceeds of the Loans
hereunder to finance transactions permitted under Section 9.5 and to finance the
ongoing working capital and other general corporate needs of the Company and its
Subsidiaries (in each case, in compliance with all applicable legal and
regulatory requirements, including, without limitation, Regulations U and X and
the Securities Act of 1933 and the Securities Exchange Act of 1934); PROVIDED
that neither any Agent nor any Lender shall have any responsibility as to the
use of any of such proceeds.
9.12. CERTAIN OBLIGATIONS RESPECTING COMPANY AND SUBSIDIARIES.
(a) Except as permitted under Section 9.5 hereof,
the Company will, and will cause each of its Subsidiaries to,
take such action from time to time as shall be necessary to
ensure that the Company and each of its Subsidiaries at all
times collectively own (subject to no Lien other than the Lien
granted under the Pledge Agreement) at least the same
percentage of the issued and outstanding shares of each class
of stock or other equity ownership interests of each of its
Subsidiaries as is collectively owned by the Company and its
Subsidiaries on the Closing Date.
(b) The Company will not, and will not permit any
of its Material Subsidiaries to, enter into, after the Closing
Date, any indenture, agreement, instrument or other arrangement
(other than entering into one or more of the Loan Documents)
that, directly or indirectly, prohibits or restrains, or has
the effect of prohibiting or restraining, or imposes materially
adverse conditions upon, the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment
of dividends, the making of loans, advances or other
Investments or the sale, assignment, transfer or other
disposition of Property, other than (i) any indenture,
agreement, instrument or other arrangement relating to
Indebtedness of a Subsidiary of the Company acquired by the
Company after the date hereof which was entered into by such
Subsidiary prior to the date on which the Company acquired such
Subsidiary (and which was not entered into in contemplation of
such acquisition), provided that the terms and conditions
thereof only relate to such Subsidiary and not the Company or
its other Subsidiaries and are no more restrictive than the
terms and conditions hereof, (ii) any indenture, agreement,
instrument or other arrangement effecting the refinancing of
any Indebtedness referred to in clause (i) above so long as the
prohibitions and restrictions contained in the documents
relating to such refinancing are as a whole no less favorable
to the Lenders or the obligor in respect of such Indebtedness
than the prohibitions and restrictions contained in the
documents relating to the Indebtedness being refinanced, (iii)
customary non-assignment provisions in leases governing
leasehold interests to the extent such provisions restrict
transfer of rights under the related lease, (iv) restrictions
on the transfer of or the granting of Liens on Property of the
Company or any of
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its Subsidiaries subject to a Lien expressly permitted by
Section 9.6 hereof securing Indebtedness expressly permitted by
Section 9.7 hereof to the extent such restrictions are
contained in documents evidencing or relating to such
Indebtedness and (v) restrictions on the transfer of Property
of the Company or any of its Subsidiaries that is the subject
of a disposition expressly permitted by Section 9.5 hereof to
the extent such restrictions are contained in the documents
relating to such disposition.
9.13. ADDITIONAL SUBSIDIARY GUARANTORS. In the event that the Company
shall, after the date of this Agreement, hold or acquire any Material Subsidiary
that is not already a Subsidiary Guarantor, the Company will, and will cause
each of its other Subsidiaries to, immediately cause such Material Subsidiary
(a) to execute and deliver to each Agent and each Lender a joinder agreement in
the form of EXHIBIT D hereto, and (b) to deliver such proof of corporate action,
incumbency of officers, opinions of counsel (it being agreed that any such
opinion may be an opinion of internal counsel qualified to practice law in the
jurisdiction(s) relevant to such opinion) and other documents as are consistent
with those delivered by the Company pursuant to Section 7.1 hereof or as the
Administrative Agent shall have reasonably requested. Upon execution and
delivery by such Material Subsidiary of any agreement referred to in the
foregoing clauses, each of the representations and warranties in Section 8
hereof with respect to such Material Subsidiary and each Loan Document to which
it shall have become a party shall be deemed made by the Company.
9.14. SUBORDINATED DEBT. The Company shall not, and shall cause its
Subsidiaries to not, make any prepayments of principal, any non-mandatory
payments of principal, or any other payments of principal other than regularly
scheduled payments of principal on account of Subordinated Debt, other than by
conversion to Capital Stock or other equity of the Company or other Subordinated
Debt. Notwithstanding the foregoing sentence, the Company shall be permitted to
prepay the Company's Convertible Notes issued May 2001 (in the original
aggregate principal amount of $575 million), provided that: (a) at the time of
such prepayment, and after giving effect to such prepayment, there has occurred
and is existing no Default or Event of Default; and (b) at least ten (10)
Business Days prior to the date of such prepayment, the Company has delivered
written notices to the Administrative Agent and each Lender indicating the date
and amount of such prepayment and attaching a certificate of the Company's
senior financial officer that, to the best of his knowledge and belief, based
upon the Company's historical performance and such senior financial officer's
reasonable and appropriate assumptions, no Default or Event of Default is
anticipated to occur prior to the Revolving Credit Commitment Termination Date.
Section 10. EVENTS OF DEFAULT. If one or more of the following events (herein
called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Company shall default in the payment when
due (whether at stated maturity or upon mandatory or optional
prepayment) of any principal of or interest on any Loan,
provided, however, that as to the non-payment of interest,
there shall be a one (1) Business Day grace period without any
requirement of notice, but the Company shall not be entitled
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to such grace period more than once in any consecutive
twelve-month period; or
(b) The Company shall default in the payment of any
fee or any other amount (other than principal of or interest on
any Loan) payable by it hereunder or under any other Loan
Document and such default shall continue unremedied for a
period of five (5) days after notice to the Company from the
Administrative Agent; or
(c) The Company or any of its Subsidiaries shall
default in the payment when due of any principal of or interest
on any of its other Indebtedness aggregating to at least
$5,000,000 (after the expiration of any grace period originally
provided for); or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such
Indebtedness shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time
or both) to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to
cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity; or
(d) Any representation, warranty or certification
made or deemed made herein or in any other Loan Document (or in
any modification or supplement hereto or thereto) by any
Obligor, or any certificate furnished to any Lender or any
Agent pursuant to the provisions hereof or thereof, shall prove
to have been false or misleading as of the time made or
furnished in any material respect; or
(e) (i) The Company shall default in the
performance of any of its obligations under any of Sections
9.1(c), 9.1 (e), 9.l(f), 9.1(g), 9.1(i), 9.3(a)(i), 9.3(f),
9.5, 9.6, 9.7, 9.9, 9.10, 9.11, 9.12, 9.13, and 9.14 hereof; or
(ii) The Company shall default in the
performance of any of its obligations under any of Sections
9.l(a), 9.1(b), or 9.1(h) hereof, provided, however, that as
to these sections, there shall be a ten (10) Business Day grace
period without any requirement of notice, but the Company shall
not be entitled to such grace period more than once in any
consecutive twelve-month period; or
(iii) The Company shall default in the
performance of any of its obligations under Section 9.2 hereof,
provided, however, that as to this section, there shall be a
thirty (30) day grace period without any requirement of notice;
or
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(iv) Any Obligor shall default in the
performance of any of its other obligations in this Agreement
or any other Loan Document and such default (if remediable)
shall continue unremedied for a period of 30 or more days after
notice thereof to the Company by the Administrative Agent or
any Lender (through the Administrative Agent); or
(f) The Company or any of its Material Subsidiaries
shall admit in writing its inability to, or be generally unable
to, pay its debts as such debts become due; or
(g) The Company or any of its Material Subsidiaries
shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee,
examiner or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under
the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or
winding-up, or composition or readjustment of debts, (v) fail
to convert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code, (vi) cause or be subject to any
event with respect to it which, under the applicable laws of
any foreign jurisdiction, has an analogous effect to any of the
events specified in the foregoing clauses (i) to (v) or (vii)
take any corporate action for the purpose of effecting any of
the foregoing; or
(h) A proceeding or case shall be commenced,
without the application or consent of the Company or any of its
Material Subsidiaries, in any court of competent jurisdiction,
seeking (i) its reorganisation, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment
of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of the Company or
such Material Subsidiary or of all or any substantial part of
its Property, (iii) similar relief in respect of the Company or
such Material Subsidiary under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 or more days or (iv)
relief with respect to it which, under the applicable laws of
any foreign jurisdiction, has an analogous effect to any of the
actions specified in foregoing clauses (i) to (iii); or an
order for relief against the Company or such Material
Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code; or
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(i) A final judgment or judgments for the payment
of money in excess of $1,000,000 in the aggregate, or imposing
injunctive or other equitable relief which would have a
Material Adverse Effect (exclusive of judgment amounts fully
covered by insurance where the insurer has a claims paying
ability rated AA- or better from Standard & Poor's or a
financial strength rating of AA or better from ▇▇▇▇▇'▇) shall
be rendered by one or more courts, administrative tribunals or
other bodies having jurisdiction against the Company or any of
its Subsidiaries and the same shall not be discharged (or
provision shall not be made for such discharge) or vacated, or
a stay of execution thereof shall not be procured, within 30
days from the date of entry thereof and the Company or the
relevant Subsidiary shall not, within said period of 30 days,
or such longer period during which execution of the same shall
have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
(j) An event or condition specified in Section
9.1(e) hereof shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result of such event or condition,
together with all other such events or conditions, the Company
or any ERISA Affiliate shall incur or in the opinion of the
Required Lenders shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or the PBGC (or any
combination of the foregoing) that, in the determination of the
Required Lenders, would (either individually or in the
aggregate) have a Material Adverse Effect; or
(k) There shall have been asserted against the
Company or any of its Subsidiaries an Environmental Claim that,
in the judgment of the Required Lenders is reasonably likely to
be determined adversely to the Company or any of its
Subsidiaries, and the amount thereof (either individually or in
the aggregate) is reasonably likely to have a Material Adverse
Effect (insofar as such amount is payable by the Company or any
of its Subsidiaries but after deducting any portion thereof
that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor);
(l) Any Fundamental Change shall occur; or
(m) The Administrative Agent shall cease to have a perfected,
first-priority security interest in the stock of Genzyme Securities
Corporation (unless it holds a perfected, first-priority security interest
in the surviving entity under the terms of Section 9.5(d)(i) hereof);
THEREUPON: (1) in the case of an Event of Default other than one referred
to in clause (g) or (h) of this Section 10 with respect to any Obligor, upon
request of the Required Lenders, (A) the Administrative Agent shall, by notice
to the Company, terminate the Commitments and they shall thereupon terminate,
and (B) the Administrative Agent shall, by notice to the Company
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declare the principal amount then outstanding of, and the accrued interest on,
the Loans and all other amounts payable by the Obligors hereunder and under the
Notes (including, without limitation, any amounts payable under Section 5.5
hereof) to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor; and (2) in the case of the occurrence of an Event of Default referred
to in clause (g) or (h) of this Section 10 with respect to any Obligor, the
Commitments shall automatically be terminated and the principal amount then
outstanding of, and the accrued interest on, the Loans and all other amounts
payable by the Obligors hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.5 hereof) shall automatically
become immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor.
Section 11. THE AGENTS.
11.1. APPOINTMENT, POWERS AND IMMUNITIES. Each Lender hereby appoints
and authorizes the Administrative Agent to act as its agent hereunder and under
the other Loan Documents with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement and of the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Each Agent (which term as used in this sentence and in Section 11.5 and the
first sentence of Section 11.6 hereof shall include reference to their
respective affiliates and their own and their affiliates' officers, directors,
employees and agents):
(a) shall have no duties or responsibilities except
those expressly set forth in this Agreement and in the other
Loan Documents, and shall not by reason of this Agreement or
any other Loan Document be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any
recitals, statements, presentations or warranties contained in
this Agreement or in any other Loan Document, or in any
certificate or other document referred to or provided for in,
or received by any of them under, this Agreement or any other
Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement,
any Note or any other Loan Document or any other document
referred to or provided for herein or therein or for any
failure by the Company or any other Person to perform any of
its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly
instructed by the Required Lenders, be required to initiate or
conduct any litigation or collection proceedings hereunder or
under any other Loan Document; and
(d) shall not be responsible for any action taken
or omitted to be taken by it hereunder or under any other Loan
Document or under any other document or instrument referred to
or provided for herein or
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therein or in connection herewith or therewith, except for its
own gross negligence, bad faith or willful misconduct.
Each Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. Each Agent may deem and treat
the payee of a Note as the holder thereof for all purposes hereof unless and
until a notice of the assignment or transfer thereof shall have been filed with
the Administrative Agent, together with the consent of the Company to such
assignment or transfer (to the extent provided in Section 12.7(b) hereof). The
identification of ABN AMRO as Syndication Agent and the identification of Nova
Scotia, Citizens and Wachovia as Co-Documentation Agents hereunder shall not
create any rights in favor of such parties in such capacities, nor subject them
to any duties or obligations, in such capacity.
11.2. RELIANCE BY AGENTS. Each Agent shall be entitled to rely upon any
certification, notice or other communication (including, without limitation, any
thereof by telephone, telecopy, telegram or cable) believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by such Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, each Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Required
Lenders or, if provided herein, in accordance with the instructions given by all
of the Lenders as is required in such circumstance, and such instructions of
such Lenders and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders.
11.3. DEFAULTS. Except with respect to Events of Default consisting of
the failure to make regularly scheduled interest payments hereunder OR the
failure to pay all Revolving Credit Loans on the Revolving Credit Commitment
Termination Date, no Agent shall be deemed to have knowledge or notice of the
occurrence of a Default unless the Administrative Agent has received notice from
a Lender or the Company specifying such Default and stating that such notice is
a "Notice of Default". In the event that the Administrative Agent receives such
a notice of the occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the other Agents and the Lenders. The Administrative
Agent shall (subject to Sections 11.1 and 11.7 hereof) take such action with
respect to such Default as shall be directed by the Required Lenders, PROVIDED
that, unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may but shall not be obligated to take such
action, or refrain from taking such action, with respect to such Default as it
shall deem advisable in the best interest of the other Agents and the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Required Lenders or all of the Lenders.
11.4. RIGHTS AS A LENDER. With respect to its Commitments and the Loans
made by it, Fleet (and any successor acting as Administrative Agent) and ABN
AMRO (and any successor acting as Syndication Agent) and Nova Scotia, Citizens
and Wachovia (and any successor acting as Co-Documentation Agent) in their
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not
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acting as an Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include any such Agent in its individual capacity. Fleet
(and any successor acting as Administrative Agent) and ABN AMRO (and any
successor acting as Syndication Agent) and Nova Scotia, Citizens and Wachovia
(and any successor acting as Co-Documentation Agent) and their respective
affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if they were not acting as an Agent, and Fleet
(and any such successor) and ABN AMRO (and any such successor) and Nova Scotia,
Citizens and Wachovia (and any such successor) and their respective affiliates
may accept fees and other consideration from the Obligors for services in
connection with this Agreement or otherwise without having to account for the
same to the Lenders.
11.5. INDEMNIFICATION. The Lenders agree to indemnify each of the
Agents (to the extent not reimbursed under Section 12.3 hereof, but without
limiting the obligations of the Company under said Section 12.3) ratably in
accordance with their respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against any Agent (including by any Lender) arising
out of or by reason of any investigation in or in any way relating to or
arising out of this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses that the Company is obligated to pay under Section 12.3 hereof, but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents (the "Indemnified Liability"), PROVIDED that no Lender
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the person to be indemnified, and PROVIDED
FURTHER that no Lender shall be liable for the payment of any portion of the
Indemnified Liability unless such Indemnified Liability was incurred by an Agent
in its capacity as such or by another person acting for the Agent in such
capacity.
11.6. NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender agrees that
it has, independently and without reliance on the Agents or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Company and its Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agents or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or under any other
Loan Document. No Agent shall be required to keep itself informed, as to the
performance or observance by any Obligor of this Agreement or any of the other
Loan Documents or any other document referred to or provided for herein or
therein or to inspect the Properties or books of the Company or any of its
Subsidiaries. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agents hereunder, the
Agents shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition or
business of the Company or any of its
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Subsidiaries (or any of their affiliates) that may come into the possession of
any Agent or any of their respective affiliates.
11.7. FAILURE TO ACT. Except for action expressly required of any Agent
hereunder and under the other Loan Documents, each Agent shall in all cases be
fully justified in failing or refusing to act hereunder and thereunder unless it
shall receive further assurances to its satisfaction from the Lenders of their
indemnification obligations under Section 11.5 hereof against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
11.8. RESIGNATION OR REMOVAL OF AGENTS. Subject to the appointment and
acceptance of a successor Agent as provided below, an Agent may resign at any
time by giving notice thereof to the Lenders and the Company. Any Agent may be
removed as Agent hereunder upon the written consent of all Lenders exclusive of
such Agent upon the following: (i) willful misconduct in the performance of such
Agent's duties or responsibilities under this Agreement as finally determined by
a court of competent jurisdiction; or (ii) if a receiver, trustee or conservator
is appointed for such Agent or any state or federal regulatory authority assumes
management or control of such Agent or if, under applicable law, the
administrative or discretionary duties of such Agent hereunder become controlled
by or subject to the approval of any state or federal regulatory authority. Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent to such capacity (and in that connection, so long as
no Event of Default shall have occurred and be continuing, subject to the
consent of the Company, not to be unreasonably withheld or delayed). If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after such removal or the retiring
Agent's giving of notice of resignation then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent to such capacity, that shall be a bank
with a combined capital and surplus of at least $250,000,000 (and in that
connection, so long as no Event of Default shall have occurred and be
continuing, subject to the consent of the Company, not to be unreasonably
withheld or delayed)). Upon the acceptance of any appointment as an Agent
hereunder by a successor Agent, (a) such successor Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and (b) the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation or removal
hereunder as an Agent, the provisions of this Section 11 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent.
11.9. CONSENTS UNDER OTHER LOAN DOCUMENTS. Except as otherwise provided
in Section 12.5 hereof with respect to this Agreement, the Administrative Agent
may, with the prior consent of the Required Lenders (but not otherwise), consent
to any modification, supplement or waiver under any of the other Loan Documents,
PROVIDED that, without the prior consent of each Lender, the Administrative
Agent shall not (except as provided herein) release any collateral or any
Obligor or otherwise terminate any Lien under any Loan Document providing for
collateral security, or agree to additional obligations being secured by such
collateral security.
Section 12. MISCELLANEOUS.
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12.1. WAIVER. No failure on the part of any Agent or any Lender to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or any Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Each Obligor irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by any Agent
or any Lender relating in any way to this Agreement should be dismissed or
stayed by reason, or pending the resolution, of any action or proceeding
commenced by any Obligor relating in any way to this Agreement whether or not
commenced earlier. To the fullest extent permitted by applicable law, the
Obligors shall take all measures necessary for any such action or proceeding
commenced by any Agent or any Lender to proceed to judgment prior to the entry
of judgment in any such action or proceeding commenced by any Obligor.
12.2. NOTICES. All notices, requests and other communications provided
for herein and under the Security Documents (including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (including, without limitation, by telecopy), or,
with respect to notices given pursuant to Section 2.3 hereof or Section 4.5
hereof, by telephone, confirmed in writing by telecopier by the close of
business on the day the notice is given, delivered (or telephoned, as the case
may be) to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof (below the name of the Company, in the
case of any Subsidiary Guarantor); or, as to any party, at such other address as
shall be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
12.3. EXPENSES, ETC. The Company agrees to pay or reimburse each of the
Lenders and each of the Agents for: (a) all reasonable out-of-pocket costs and
expenses of the Agents (including, without limitation, the reasonable fees and
expenses of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Israels LLP, special counsel to Fleet) in
connection with (i) the negotiation, preparation, execution and delivery of this
Agreement and the other Loan Documents and the extensions of credit hereunder,
(ii) the syndication of the Commitments and the Loans and (iii) the negotiation
or preparation of any modification, supplement or waiver of any of the terms of
this Agreement or any of the other Loan Documents (whether or not consummated);
(b) all reasonable out-of-pocket costs and expenses of each of the Lenders and
each of the Agents (including, without limitation, the reasonable fees and
expenses of legal counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (w) the
exercise of the Agents' and Lenders' rights under Section 9.3(f) hereof, (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 12.3;
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and (c) all transfer, stamp, documentary or other similar taxes, assessments or
charges levied by any governmental or revenue authority in respect of this
Agreement or any of the other Loan Documents or any other document referred to
herein or therein and all reasonable costs, expenses, taxes, assessments and
other charges incurred in connection with any filing, registration, recording or
perfection of any security interest contemplated by any Loan Document or any
other document referred to therein.
12.4. INDEMNIFICATION. The Company hereby agrees to indemnify each
Agent, each Lender, their affiliates and their respective directors, officers,
employees, attorneys and agents from (each, an "Indemnified Party"), and hold
each of them harmless against, any and all losses, liabilities, claims, damages
or expenses incurred by any of them (including, without limitation, any and all
losses, liabilities, claims, damages or expenses incurred by any Agent to any
Lender, whether or not any Agent or any Lender is a party thereto) arising out
of or by reason of any investigation or litigation or other proceedings
(including any threatened investigation or litigation or other proceedings)
relating to this Agreement, any of the other Loan Documents, or the extensions
of credit hereunder or any actual or proposed use by the Company or any of its
Subsidiaries of the proceeds of any of the extensions of credit hereunder,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation or litigation or other
proceedings or otherwise in connection with any subpoena or similar document or
order served on any Lender (but excluding any such losses, liabilities, claims,
damages or expenses incurred by reason of the gross negligence or willful
misconduct of the Indemnified Party). Without limiting the generality of the
foregoing, the Company will indemnify each Agent and each Lender from, and hold
each Agent and each Lender harmless against, any losses, liabilities, claims,
damages or expenses described in the preceding sentence (but excluding, as
provided in the preceding sentence, any loss, liability, claim, damage or
expense that is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct) arising under any Environmental Law as a result of (i) the
past, present or future operations of the Company or any of its Subsidiaries (or
any predecessor in interest to the Company or any of its Subsidiaries), (ii) the
past, present or future condition of any site or facility owned, operated or
leased at any time by the Company or any of its Subsidiaries (or any such
predecessor in interest) or (iii) any Release or threatened Release of any
Hazardous Materials at or from any such site or facility, including any such
Release or threatened Release that shall occur during any period when any Agent
or any Lender shall be in possession of any such site or facility following the
exercise by the Administrative Agent or any Lender of any of its rights and
remedies hereunder, except that to the extent any such claim, damage, lost,
liability or expense is found in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation,
or proceeding to which the indemnity described in this paragraph applies, such
indemnity shall be effective whether or not such investigation, litigation, or
proceeding is brought by the Company, its shareholders or creditors or Person to
be indemnified, or whether or not a Person to be indemnified is otherwise a
party thereto.
12.5. AMENDMENTS, ETC. Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be modified or supplemented only
by an instrument in writing signed by the Company, the Administrative Agent and
the Required
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Lenders, or by the Company and the Administrative Agent acting with the consent
of the Required Lenders, and any provision of this Agreement may be waived by
the Required Lenders or by the Administrative Agent acting with the consent of
the Required Lenders; PROVIDED THAT: (a) no modification, supplement or waiver
shall, unless by an instrument signed by each Lender directly affected thereby:
(i) increase, or extend the term of any of the Commitments, or extend the time
or waive any requirement for the increase, reduction or termination of any of
the Commitments, (ii) extend or postpone the date fixed for the payment of
principal of or interest on any Loan, or any fee hereunder, (iii) reduce the
amount of any such payment of principal, or (iv) reduce the rate at which
interest is payable thereon or any fee is payable hereunder; (b) no
modification, supplement or waiver shall, unless by an instrument signed by all
of the Lenders or by the Administrative Agent acting with the consent of all of
the Lenders: (i) alter the rights or obligations of the Company to prepay Loans,
(ii) alter the terms of Section 4.2, 4.7 or 11.9 hereof or this Section 12.5,
(iii) modify the definition of the term "Required Lenders", or modify in any
other manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof,
(iv) release any Obligor hereunder, (v) waive any of the conditions precedent
set forth in Section 7.1 hereof, or (vi) release the pledge of stock of Genzyme
Securities Corporation, other than in exchange for a pledge of stock of the
surviving entity under the terms of Section 9.5(d)(i) hereof; (c) any
modification or supplement of Section 11 hereof shall require the consent of the
Administrative Agent; and (d) any modification or supplement of Section 6 hereof
shall require the consent of each Subsidiary Guarantor (PROVIDED that any
Subsidiary of the Company may become a party to this Agreement as a "Subsidiary
Guarantor" hereunder as provided in Section 9.13 hereof).
12.6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
12.7. ASSIGNMENTS AND PARTICIPATIONS.
(a) No Obligor may assign any of its rights or
obligations hereunder or under the Notes without the prior
consent of all of the Lenders and the Agent.
(b) Each Lender may assign any of its Loans, its
Note and its Commitment but only with the consent of the
Company and the Administrative Agent; PROVIDED THAT
(i) no such consent by the Company or the
Administrative Agent shall be required in the case of any assignment
to another Lender or to an Affiliate of any Lender, and no such
consent by the Company shall be required in the case of any
assignment effected while an Event of Default has occurred and is
continuing;
(ii) except to the extent the Company and the
Administrative Agent shall otherwise consent, any such partial
assignment (other than to another Lender) shall be in an amount at
least equal to $5,000,000;
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(iii) upon each such assignment, the assignor and
assignee shall deliver to the Company and the Administrative Agent a
Notice of Assignment in the form of EXHIBIT E hereto; and
(iv) no consent required of the Company or the
Administrative Agent under this Section 12.7(b) shall be
unreasonably withheld or delayed.
Upon execution and delivery by the assignor and the assignee to the
Company and the Administrative Agent of such Notice of Assignment and upon the
consent thereto by the Company and the Administrative Agent, the assignee shall
have, to the extent of such assignment (unless otherwise consented to by the
Company and the Administrative Agent), the obligations, rights and benefits of a
Lender hereunder holding the Commitment(s) and Loans (or portions thereof)
assigned to it and specified in such Notice of Assignment (in addition to the
Commitment(s) and Loans, if any, theretofore held by such assignee) and the
assigning Lender shall, to the extent of such assignment, be released from the
Commitment(s) (or portion(s) thereof) so assigned. Upon each such assignment the
assigning Lender shall pay the Administrative Agent an assignment fee of $4,500.
(c) Each Lender shall have the unrestricted right
at any time and from time to time, and without the consent of
or notice to the Company, any Subsidiary Guarantor, any Agent,
or any other Lender, to grant to one or more banks or other
financial institutions (each, a "Participant") participating
interests in such Lender's obligations to lend hereunder and/or
any or all of the Loans held by such Lender hereunder. In the
event of any such grant by a Lender of a participating interest
to a Participant, whether or not upon notice to the Company,
any Subsidiary Guarantor, any Agent, or any other Lender, such
Lender shall be responsible for the performance of its
obligations hereunder and the Company, Agents and other Lenders
shall continue to deal solely and directly with such Lender in
connection with such Agents' and Lenders' rights and
obligations hereunder. The only rights granted to Participants
with respect to waivers, amendments or modifications of the
Loan Documents shall be the rights to approve waivers,
amendments or modifications that would (i) reduce the principal
of or the interest rate on any Loan; (ii) extend or postpone
the date fixed for the payment of principal of or interest on
any Loan; or (iii) release the pledge of stock of Genzyme
Securities Corporation or all or substantially all of the
securities under such pledge.
(d) In addition to the assignments and
participations permitted under the foregoing provisions of this
Section 12.7, any Lender may (without notice to the Company,
the Administrative Agent or any other Agent or Lender and
without payment of any fee) (i) assign and pledge all or any
portion of its Loans, and Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank and (ii) assign
all or any
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portion of its rights under this Agreement and its Loans, and
Note to an Affiliate of such Lender provided that the Company
shall not be required to pay any increase in the cost of
borrowing as a result of such assignment and LIBOR Loans must
continue to be made available by such Assignee.
(e) A Lender may furnish any information concerning
the Company or any of its Subsidiaries in the possession of
such Lender from time to time to assignees and participants
(including prospective assignees and participants), subject,
however, to the provisions of Section 12.13 hereof.
(f) Anything in this Section 12.7 to the contrary
notwithstanding, no Lender may assign or participate any
interest in any Commitment or Loan held by it hereunder to the
Company or any of its Affiliates or Subsidiaries, and the
Company shall not, and shall not permit any of its Subsidiaries
to, acquire any such interest in any Commitment or Loan,
without the prior consent of each Lender.
12.8. SURVIVAL. The obligations of the Company under Sections 5.1, 5.5,
12.3, and 12.4 hereof, the obligations of each Subsidiary Guarantor under
Section 6.3 hereof, and the obligations of the Lenders under Section 11.5
hereof, shall survive the repayment of the Loans and the termination of the
Commitments and, in the case of any Lender that may assign any interest in its
Commitments or Loans hereunder, shall survive the making of such assignment,
notwithstanding that such assigning Lender may cease to be a "Lender" hereunder.
In addition, each representation and warranty made, or deemed to be made by a
notice of borrowing herein or pursuant hereto shall survive the making of such
representation and warranty, and no Lender shall be deemed to have waived, by
reason of making any extension of credit, any Default that may arise by reason
of such representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or any Agent may have had notice or knowledge
or reason to believe that such representation or warranty was false or
misleading at the time such extension of credit was made.
12.9. CAPTIONS. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
12.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.11. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement and the
Notes shall be governed by, and construed in accordance with, the law of the
Commonwealth of Massachusetts. Each Obligor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the District of
Massachusetts and of the Superior Court of the Commonwealth of Massachusetts
sitting in Suffolk County, and any appellate court in the Commonwealth of
Massachusetts, for the purposes of all legal proceedings arising out of or
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relating to this Agreement or the transactions contemplated hereby. Each Obligor
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any objection that it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
12.12. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
12.13. CONFIDENTIALITY.
(a) The Company acknowledges that from time to time
financial advisory, investment banking and other services may
be offered or provided to the Company or one or more of its
Subsidiaries (in connection with this Agreement or otherwise)
by any Lender or by one or more subsidiaries or affiliates of
such Lender and the Company hereby authorizes each Lender to
share any information delivered to such Lender by the Company
and its Subsidiaries pursuant to this Agreement and the other
Loan Documents, or in connection with the decision of such
Lender to enter into this Agreement, to any such subsidiary or
affiliate, it being understood that any such subsidiary or
affiliate receiving such information shall be bound by the
provisions of paragraph (b) below as if it were a Lender
hereunder. Such authorization shall survive the repayment of
the Loans and the termination of the Commitments.
(b) Each Lender and each Agent agrees (on behalf of
itself and each of its affiliates, directors, officers,
employees and representatives) to keep confidential, in
accordance with their customary procedures for handling
confidential information of the same nature and in accordance
with safe and sound banking practices, any non-public
information supplied to it by the Company pursuant to this
Agreement and the other Documents (the "Information"), provided
that nothing herein shall limit the disclosure of any such
information (i) to the extent required by statute, rule,
regulation or judicial process, (ii) to counsel for any of the
Lenders or the Agents, (iii) to bank examiners, auditors or
accountants, (iv) to any other Agent or any other Lender, (v)
in connection with any litigation to which any one or more of
the Lenders or one or more of the Agents is a party in which
such Lender or the Agents has been required or, in the opinion
of its legal counsel, deems it necessary to produce such
information, (vi) to a subsidiary or affiliate of such Lender
as provided in paragraph (a) above or (vii) to any assignee or
participant (or prospective assignee or participant) assignee
or participant (or prospective assignee or participant);
provided, further, that (x) unless specifically prohibited by
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applicable law or court order, each Lender and each Agent
shall, prior to disclosure thereof, notify the Company of any
request for disclosure of any such non-public information,
except when the request is (A) made by any governmental agency
or representative thereof or (B) pursuant to legal process and
(y) that in no event shall any Lender or any Agent be obligated
to return any materials furnished by the Company.
Notwithstanding anything herein to the contrary, "Information"
shall not include, and the Obligors, the Agents, each Lender
and the respective Affiliates of each of the foregoing (and the
respective partners, directors, officers, employees, agents,
advisors and other representatives of each of the foregoing and
their Affiliates) may disclose to any and all Persons, without
limitation of any kind, (a) any information with respect to the
U.S. federal and state income tax treatment applicable to it
of the transactions contemplated hereby and any facts that may
be relevant to understanding such tax treatment, which facts
shall not include for this purpose the names of the parties or
any other Person named herein, or information that would permit
identification of the parties or such other Persons, or any
pricing terms or other nonpublic business or financial
information that is unrelated to such tax treatment or facts,
and (b) all materials of any kind (including opinions or other
tax analyses) relating to such tax treatment or facts that are
provided to any of the Persons referred to above. The
obligations of each Lender under this Section 12.13 shall
supersede and replace the obligations of such Lender under the
confidentiality letter in respect of this financing signed and
delivered by such Lender to the Company prior to the date
hereof.
12.14. COMPLIANCE WITH USURY LAWS.
All agreements between any Obligor, the Agents, and any Lender are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the indebtedness evidenced hereby or
otherwise, shall the amount paid or agreed to be paid to any Agent or any Lender
for the use or the forbearance of the indebtedness evidenced hereby exceed the
maximum permissible under applicable law. As used herein, the term "applicable
law" shall mean the law in effect as of the date hereof, PROVIDED, HOWEVER, that
in the event there is a change in the law which results in a higher permissible
rate of interest, then this Agreement shall be governed by such new law as of
its effective date. In this regard, it is expressly agreed that it is the intent
of the Obligors, the Agents and the Lenders in the execution, delivery and
acceptance of this Agreement to contract in strict compliance with the laws of
the Commonwealth of Massachusetts from time to time in effect. If, under or from
any circumstances whatsoever, fulfillment of any provision hereof or of any of
the Loan Documents at the time performance of such provision shall be due, shall
involve transcending the limit of validity prescribed by applicable law, then
the obligation to be fulfilled shall automatically be reduced to the limit of
such validity, and if under or from any circumstances whatsoever any Agent or
any Lender should ever receive as interest an amount which would exceed the
highest lawful rate, such amount which would be excessive interest shall be
applied to the reduction of the principal balance evidenced hereby and not to
the payment of interest. This provision shall
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control every other provision of all agreements between the Obligors, the
Agents, and the Lenders.
12.15. REPLACEMENT NOTE.
Upon receipt of an affidavit of an officer of any Agent or any Lender as to
the loss, theft, destruction or mutilation of any Revolving Credit Note or any
other Loan Documents which is not of public record, and, in the case of any such
loss, theft, destruction or mutilation, upon receipt of an affidavit of
surrender and cancellation of such Revolving Credit Note or other Loan Document,
the Company will issue, in lieu thereof, a replacement Revolving Credit Note or
other Loan Document in the same principal amount thereof and otherwise of like
tenor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as an instrument under seal as of the day and year
first above written.
GENZYME CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, Finance
Chief Financial Officer
ADDRESS FOR NOTICES:
Genzyme Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
Telecopier No.: (508) 872-0827
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
SUBSIDIARY GUARANTORS
SANGSTAT MEDICAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
ADDRESS FOR NOTICES:
c/o
Genzyme Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
Telecopier No.: (508) 872-0827
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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ADMINISTRATIVE AGENT
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
ADDRESS FOR NOTICES:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director, High Tech Group
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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SYNDICATION AGENT
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
ADDRESS FOR NOTICES:
Notices related to commitments, covenants or
extensions of expiry/termination dates:
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Credit Administration
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO BANK N.V.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
E-mail: ▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notices related to Financial Information and
Reporting Requirements:
ABN AMRO BANK N.V.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
E-mail: ▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
- ▇▇ -
▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Director
E-mail: ▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Associate
E-mail: ▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- ▇▇ -
▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ADDRESS FOR NOTICES:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 76 -
CO-DOCUMENTATION AGENT
WACHOVIA BANK, National Association
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Director
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 77 -
LENDER
REVOLVING CREDIT COMMITMENT: FLEET NATIONAL BANK
$50,000,000 By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
ADDRESS FOR NOTICES:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director, High Tech Group
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDING OFFICE FOR ALL LOANS:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing
Director - High Tech Group
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 78 -
LENDER
REVOLVING CREDIT COMMITMENT: ABN AMRO BANK N.V.
$50,000,000 By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
ADDRESS FOR NOTICES:
Notices related to commitments, covenants or
extensions of expiry/termination dates:
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Credit Administration
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO BANK N.V.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
E-mail: ▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notices related to Financial Information and
Reporting Requirements:
ABN AMRO BANK N.V.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
E-mail: ▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 79 -
ABN AMRO BANK N.V.
LENDING OFFICE FOR ALL LOANS:
Notices related to Loans, Interest and Fees:
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Loan Administration
E-mail: ▇▇▇.▇▇▇▇.▇@▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notices related to Letters of Credit:
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Trade Services
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 80 -
LENDER
REVOLVING CREDIT COMMITMENT: WACHOVIA BANK, National Association
$35,000,000 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇./ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
LENDING OFFICE FOR ALL LOANS:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: 704-383-7999
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
- 81 -
LENDER
REVOLVING CREDIT COMMITMENT: THE BANK OF NOVA SCOTIA
$35,000,000 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Director
E-mail: ▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Associate
E-mail: ▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDING OFFICE FOR ALL LOANS:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇, Loan Operations Officer
E-mail: ▇▇▇▇_▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 82 -
LENDER
REVOLVING CREDIT COMMITMENT: CITIZENS BANK OF MASSACHUSETTS
$35,000,000 By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ADDRESS FOR NOTICES:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDING OFFICE FOR ALL LOANS:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 83 -
LENDER
REVOLVING CREDIT COMMITMENT: BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
$30,000,000 By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President
ADDRESS FOR NOTICES:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇
E-Mail: ▇▇▇▇@▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDING OFFICE FOR ALL LOANS:
BTM Operations Office for the Americas
▇/▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇, AVP,
Loan Operations Dept.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 84 -
LENDER
REVOLVING CREDIT COMMITMENT: JPMORGAN CHASE BANK
$25,000,000 By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇, Vice President
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDING OFFICE FOR ALL LOANS:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CSS
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 85 -
LENDER
REVOLVING CREDIT COMMITMENT: KEYBANK NATIONAL ASSOCIATION
$25,000,000 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇▇, Vice President
E-mail: ▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDING OFFICE FOR ALL LOANS:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Loan Services
Specialist
E-mail: ▇▇▇▇_▇▇▇▇▇▇▇-▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 86 -
LENDER
REVOLVING CREDIT COMMITMENT: KBC BANK N.V.
$25,000,000 By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
By: /s/ Stefano Snozzi
Title: First Vice President
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDING OFFICE FOR ALL LOANS:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇, Asst. Vice President
E-mail: ▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 87 -
LENDER
REVOLVING CREDIT COMMITMENT: MELLON BANK, N.A.
$25,000,000 By: /s/ J. ▇▇▇▇ ▇▇▇▇
Title: Vice President
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇ ▇▇▇▇, Vice President
E-mail: ▇▇▇▇.▇▇@▇▇▇▇▇▇.▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDING OFFICE FOR ALL LOANS:
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ Gestichr, Loan Administrator
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 88 -
LENDER
REVOLVING CREDIT COMMITMENT: BANK OF IRELAND
$15,000,000 By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
ADDRESS FOR NOTICES:
Bank of Ireland Corporate Banking
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Telephone No.: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇/4148
LENDING OFFICE FOR ALL LOANS:
Bank of Ireland
Loans Administration
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier No.: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Telephone No.: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
- 89 -
SCHEDULE 8.3
LITIGATION
None, other than as disclosed in the Company's Form 10-Q filing for the fiscal
quarter ending September 30, 2003 or any earlier filings with the U.S.
Securities and Exchange Commission pursuant to the Securities Act of 1934, as
amended.
SCHEDULE 8.12A
INDEBTEDNESS EVIDENCE BY
CREDIT AGREEMENTS,
INDENTURES, GUARANTEES, LETTERS OF CREDIT, ETC.
See attached.
SCHEDULE 8.12B
LIENS SECURING INDEBTEDNESS
See attached.
SCHEDULE 8.14
SUBSIDIARIES
[organizational chart]
Assets by Subsidiary (Greater than 3%)
SCHEDULE 9.7(b)
EXCLUDED INDEBTEDNESS
See attached.
EXHIBIT A
[Form of Revolving Credit Note]
PROMISSORY NOTE
$______________ December 10, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED,
GENZYME CORPORATION, a Massachusetts corporation (the
"COMPANY"), hereby promises to pay to _______________ (the "LENDER"), for
account of its respective Applicable Lending Offices provided for by the
Credit
Agreement referred to below, at the principal office of Fleet National Bank, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal sum of ______________
Dollars (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Revolving Credit Loans made by the Lender to the Company under the
Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the
Credit Agreement, and to pay interest on the unpaid principal amount of
each such Revolving Credit Loan, at such office, in like money and funds, for
the period commencing on the date of such Revolving Credit Loan until such
Revolving Credit Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Revolving Credit Loan made by the Lender to the Company, and
each payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, PROVIDED
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Company to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Revolving
Credit Loans made by the Lender.
This Note is one of the Revolving Credit Notes referred to in the Credit
Agreement dated as of December 10, 2003 (as modified and supplemented and in
effect from time to time, the "CREDIT AGREEMENT") between the Company, the
Subsidiary Guarantors party thereto, the Lenders party thereto and Fleet
National Bank, as Administrative Agent, ABN AMRO Bank N.V., as Syndication
Agent, and The Bank of Nova Scotia, Citizens Bank of Massachusetts and Wachovia
Bank, National Association, as Co-Documentation Agents, and evidences Revolving
Credit Loans made by the Lender thereunder. Terms used but not defined in this
Note have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Section 12.7 of the Credit Agreement, this Note may
not be assigned by the Lender to any other Person.
A-1
This Note shall be deemed to be an instrument under seal governed by, and
construed in accordance with, the law of The Commonwealth of Massachusetts.
ATTEST:
GENZYME CORPORATION
By:
------------------------- ----------------------------
Title:
A-2
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit Loans made, Continued or Converted
under the within-described Credit Agreement to the Company, on the dates, in the
principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
Amount
Date Paid,
Made, Prepaid,
Continued Principal Duration Continued Unpaid
or Amount Type of Interest of Interest or Principal Notation
Converted of Loan Loan Rate Period Converted Amount Made By
------------ --------- ------- -------- ----------- --------- --------- --------
A-3
EXHIBIT B
LEGAL OPINION
[For Letterhead of ▇▇▇▇▇▇ & Dodge, LLP]
TELEPHONE: (▇▇▇) ▇▇▇-▇▇▇▇ FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇
December 10, 2003
Fleet National Bank, as Administrative Agent
for the Lenders (as defined below)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABN AMRO Bank N.V., as
Syndication Agent for the Lenders
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Bank of Nova Scotia,
Citizens Bank of Massachusetts and
Wachovia Bank, National Association, as Co-Documentation
Agents for the Lenders
[Address]
and
The Lenders that are parties to the
Credit Agreement (as defined below)
We have acted as counsel to
Genzyme Corporation, a Massachusetts corporation
(the "COMPANY"), Sangstat Medical Corporation, a Delaware Corporation (the
"SUBSIDIARY GUARANTOR"), and Genzyme Securities Corporation, a Massachusetts
corporation ("GSC"), in connection with the preparation, execution and delivery
of the following documents (the "LOAN DOCUMENTS") each dated of even date
herewith: (i) the Credit Agreement (the "CREDIT AGREEMENT") between the Company,
the Subsidiary Guarantor, the lenders thereunder (the "LENDERS"), Fleet National
Bank as Administrative Agent (the "ADMINISTRATIVE AGENT"), ABN AMRO Bank N.V. as
Syndication Agent (the "SYNDICATION AGENT") and The Bank of Nova Scotia,
Citizens Bank of Massachusetts and Wachovia Bank, N.A., as Co-Documentation
Agents
B-1
(the "CO-DOCUMENTATION AGENTS," and together with the Administrative Agent, the
"AGENTS"), (ii) the Revolving Credit Notes payable to the order of the Lenders
in the original aggregate principal amount of $350,000,000 and (iii) the Pledge
Agreement between the Company and the Administrative Agent. All capitalized
terms used herein and not defined herein shall have the meanings ascribed to
them in the Credit Agreement.
We have examined such documents and made such other investigation as we
have deemed appropriate to render the opinions set forth below. As to matters of
fact material to our opinions, we have relied, without independent verification,
on representations made in the Loan Documents and certificates and other
inquiries of officers of the Company, the Subsidiary Guarantor and GSC. We have
also relied on certificates of public officials.
The opinions expressed herein with respect to the enforceability of the
Loan Documents are subject to (x) general principles of equity including without
limitation an implied covenant of good faith and fair dealing and (y)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws of general application affecting the rights and remedies of
creditors heretofore or hereafter enacted to the extent that the same may be
constitutionally applied. In addition, we express no opinion with respect to any
provision of the Loan Documents to the extent it provides for (i) recourse or
exercise of any remedial rights in the absence of notice and a hearing, (ii)
waivers of legal rights to the extent such waivers are against public policy,
(iii) the grant of powers of attorney, (iv) any exculpation or indemnification
that are against public policy, (v) the payment of interest in certain
circumstances at a rate which exceeds the rate of interest otherwise payable
thereunder if such increase is deemed to constitute a penalty, or (vi) your
rights of set off against the Company's deposit accounts to the extent that (a)
the funds on deposit in said accounts have been accepted by you with an intent
to apply such funds to a pre-existing claim rather than to hold the funds
subject to withdrawals in the ordinary course, (b) the funds on deposit in said
accounts are in any manner special accounts, which by the express terms on which
they are created, are made subject to the rights of a third party, or (c) you or
any other person is entitled to exercise rights of set-off or similar rights
with respect to accounts at any other institution or without notice to the
Company or the Subsidiary Guarantor or other than in accordance with applicable
law.
Our opinion as to the enforceability of the Pledge Agreement does not
constitute an opinion as to the perfection of a security interest in the capital
stock of GSC, as to which our opinion is given in paragraph 8 hereof. Our
opinion as to the security interest in the capital stock of GSC does not include
any opinion as to the perfection of any security interest in proceeds of such
capital stock or in any distribution with respect thereto or, except as stated
in paragraph 8 hereof, as to the priority of the security interest in such
capital stock.
This opinion is limited to the laws of The Commonwealth of Massachusetts,
the Delaware General Corporation Law and the Federal laws of the United States.
References to "our knowledge" or equivalent words mean the actual knowledge of
the lawyers in this firm responsible for preparing this opinion after such
inquiry as they deemed appropriate.
B-2
Based on and subject to the foregoing, we are of the opinion as follows:
1. Each of the Company and the Subsidiary Guarantor is a corporation
validly existing and in good corporate standing under the laws of the state of
its incorporation and has the corporate power and authority to carry on its
businesses as now conducted, to own and operate its properties in connection
therewith and to enter into and perform its obligations under the Loan
Documents.
2. GSC is a corporation validly existing and in good corporate standing
under the laws of The Commonwealth of Massachusetts and has the corporate power
and authority to carry on its business as now conducted and to own and operate
its properties in connection therewith.
3. The Loan Documents to which the Company or the Subsidiary Guarantor
is a party have been duly authorized by all necessary corporate action on the
part of the Company and the Subsidiary Guarantor, have been duly executed and
delivered by the Company and the Subsidiary Guarantor and constitute the valid
and binding obligations of the Company and the Subsidiary Guarantor, enforceable
against the Company and the Subsidiary Guarantor, respectively, in accordance
with their terms.
4. The execution, delivery and performance of the Loan Documents will
not breach or constitute a default or result in the creation of a lien under (i)
the articles of organization or certificate of incorporation, as the case may
be, or by-laws of the Company or the Subsidiary Guarantor; or (ii) any agreement
or instrument listed as an exhibit to the Company's Annual Report on Form 10-K
for the year ended December 31, 2002, or to any report filed with the Securities
and Exchange Commission subsequent thereto; or (iii), to our knowledge, any
judgment, decree, order, statute or government rule or regulation applicable to
the Company or the Subsidiary Guarantor.
5. No approval, authorization or other action by, or filing with, any
governmental authority is required to be obtained by the Company or the
Subsidiary Guarantor in connection with the execution and delivery of the Loan
Documents by the Company or the Subsidiary Guarantor.
6. To our knowledge, there is no action, proceeding or investigation
pending or threatened in writing against the Company or the Subsidiary Guarantor
which questions the validity of the Loan Documents or any action taken or to be
taken pursuant to the Loan Documents.
7. The authorized capital stock of GSC consists of 200,000 shares of
common stock, par value $.01 per share, of which 100 shares (the "SHARES") are
duly and validly issued and outstanding, fully paid and nonassessable. All of
the Shares are owned of record by the Company. To our knowledge, GSC has no
options, warrants or rights outstanding and is not a party to any agreements
that obligate it to issue additional shares of its capital stock. There are no
restrictions on transfer applicable to the Shares under the articles of
organization or by-laws of GSC or, to our knowledge, any agreement or instrument
listed as an exhibit to the Company's Annual Report on Form 10-K for the year
ended December 31, 2002, or to any report filed with
B-3
the Securities and Exchange Commission subsequent thereto. We note, however,
that the Shares have not been registered under the Securities Act of 1933 and
may be transferred only in compliance with the registration requirements of such
Act or an exemption therefrom.
8. The Pledge Agreement, together with delivery to the Administrative
Agent of the certificates representing the Shares, creates a perfected security
interest in the Shares in favor of the Administrative Agent for the benefit of
the Lenders and the Agents. Assuming the Agents and the Lenders acquired their
respective interests in good faith and without notice of any adverse claims and
that such certificates are in registered form, issued or indorsed to the
Administrative Agent or in blank, the Lenders and the Agents will have acquired
the security interest in the Shares free of adverse claims.
9. Neither the Company nor the Subsidiary Guarantor is an "investment
company" or a company "controlled" by an "investment company" as defined by the
Investment Company Act of 1940, as amended.
10. Neither the Company nor the Subsidiary Guarantor is (i) a "holding
company," an "affiliate" of a "holding company" or a "subsidiary company" of a
"holding company" as defined by the Public Utility Holding Company Act of 1935,
as amended, or (ii) an "electric company" as defined by Massachusetts General
Laws, Chapter 164, as amended.
This opinion shall be interpreted in accordance with the Legal Opinion
Principles issued by the Committee on Legal Opinions of the American Bar
Association's Business Law Section as published in 53 Business Lawyer 831 (May
1998).
This opinion is furnished by us pursuant to Section 7.1(d) of the Credit
Agreement for the sole benefit of the Lenders and the Agents (including any
Persons who may be successors of the Lenders or the Agents or who may
participate with the Lenders as provided in Section 12.7 of the Credit
Agreement) and their respective counsel, and may not be used or relied upon by
any other Person or in connection with any other transaction without our prior
written consent.
Very truly yours,
▇▇▇▇▇▇ & DODGE LLP
B-4
EXHIBIT C TO CREDIT AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate is provided pursuant to Section 9.1(c) of that
certain Credit Agreement (the "Agreement") dated as of December 10, 2003,
between
Genzyme Corporation ("Company"), the Subsidiary Guarantors party
thereto, the Lenders party thereto and Fleet National Bank ("Administrative
Agent"), ABN AMRO Bank N.V. ("Syndication Agent") and The Bank of Nova Scotia,
Citizens Bank of Massachusetts and Wachovia Bank, National Association
("Co-Documentation Agents"). The capitalized terms used herein shall have the
meanings ascribed to such terms in the Agreement. The undersigned hereby
certifies as follows as of this date:
1. The representations and warranties made by the Company in the
Agreement and by the Company and each Obligor in cash certificate, document or
financial or other statement furnished under or in connection therewith are true
and accurate in all material respects.
2. The financial information and calculations shown on the attached
Schedule A are true and accurate as of the date hereof and the Company is in
compliance with the financial covenants set forth in Section 9.9 of the
Agreement.
3. No Default or Event of Default under the Agreement has occurred.
IN WITNESS WHEREOF, this Certificate has been duly executed and delivered
as a scaled instrument at Boston, Massachusetts on this ______ day of _______,
___.
GENZYME CORPORATION
By:
-------------------------------
Name:
-------------------------
Title:
------------------------
C-1
SCHEDULE A
TO EXHIBIT C
SECTION 9.9(a) CONSOLIDATED QUICK RATIO
cash -- $____________
Cash Equivalents -- $____________
Marketable Investments -- $____________
Accounts Receivable -- $____________
Current Liabilities -- $____________
Current Synthetic Lease Obligations -- $____________
Actual Ratio -- ____________
Minimum Ratio -- 1.50 to 1.00
SECTION 9.9(b) CONSOLIDATED INTEREST COVERAGE RATIO
EBITDA -- $______________
Interest Expense -- $____________
Actual Ratio -- ____________
Minimum Ratio -- 5.00 to 1.00
SECTION 9.9(c) CONSOLIDATED LEVERAGE RATIO
Consolidated Funded Debt -- $ ____________
Unrestricted Cash and Marketable Investments in excess of $200,000,000 -- $ ____
EBITDA -- $ ____________
Actual Ratio -- ____________
Maximum Ratio -- 2.00 to 1.00
C-2
LEVEL CALCULATION
SENIOR UNSECURED DEBT RATING -- ____________ (written confirmation is attached)
Debt Rating for Applicable Margin and Applicable Facility Fee determination:
_______________
C-3
EXHIBIT D
[Form of Joinder Agreement]
This Joinder Agreement is delivered pursuant to Section 9.13 of the Credit
Agreement dated as of December 10, 2003 (the "CREDIT AGREEMENT") between Genzyme
Corporation (the "COMPANY"), the Subsidiary Guarantors party thereto, the
Lenders party thereto, and Fleet National Bank, as Administrative Agent,
ABN AMRO Bank N.V., as Syndication Agent, and The Bank of Nova Scotia, Citizens
Bank of Massachusetts and Wachovia Bank, National Association, as
Co-Documentation Agents.
The undersigned hereby agrees to become a "Subsidiary Guarantor" as such
term is used in the Credit Agreement and, by virtue of its execution and
delivery of this Joinder Agreement, agrees to assume all of the obligations and
liabilities of a Subsidiary Guarantor under the Credit Agreement and the other
Loan Documents.
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be
duly executed on this __ day of _________, ____________.
[NAME OF SUBSIDIARY]
By:
----------------------------
Title:
Address for Notices:
[Address]
D-1
EXHIBIT E
[Form of Notice of Assignment]
NOTICE OF ASSIGNMENT
[Date]
Genzyme Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
Fleet National Bank,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: High Tech Group
Re: Credit Agreement dated as of December 10,2003 (the "CREDIT
AGREEMENT"), between Genzyme Corporation (the "COMPANY"), the
Subsidiary Guarantors party thereto, the Lenders party thereto and
Fleet National Bank, as Administrative Agent, ABN AMRO Bank N.V., as
Syndication Agent and The Bank of Nova Scotia, Citizens Bank of
Massachusetts and Wachovia Bank, National Association, as
Co-Documentation Agents
Ladies and Gentlemen:
We hereby give notice that, effective as of the date hereof, [Name of
Assignor] (the "ASSIGNOR") has assigned its rights and obligations with respect
to ___% of its outstanding Revolving Credit Commitment (representing
$__________ of the Assignor's outstanding Revolving Credit Commitment and
Revolving Credit Loans (such interest in such rights and obligations being
hereinafter referred to as the "ASSIGNED INTEREST") under the Credit Agreement
to [Name of Assignee] (the "ASSIGNEE"). The Assignee hereby agrees (a) to become
a "Lender" pursuant to Section 12.7(b) of the Credit Agreement (if not already a
Lender under the Credit Agreement) and (b) to assume all the obligations of the
Assignor thereunder with respect to the Assigned Interest.
The address for notices, Applicable Lender Office(s) and payment
instructions for the Assignee are as follows:
E-1
Address for Notices:
________________________
________________________
________________________
Attention:
Telephone:
Telecopier:
Lending Office for Prime Rate
Loans and LIBOR Loans:
________________________
________________________
________________________
Payment Instructions:
________________________
________________________
________________________
Please sign and return the enclosed copy of this letter to the undersigned
to indicate your receipt hereof, and your consent to or notice of (as
applicable) the above-mentioned assignment and assumption, and your agreement to
the release of the Assignor from its obligations under the Credit Agreement with
respect to the Assigned Interest. As a condition to the effectiveness of the
above-mentioned assignment and assumption, the Assignee hereby agrees to pay to
the Administrative Agent on the date hereof an assignment fee of $4,500.
Very truly yours,
[NAME OF ASSIGNOR]
By:
---------------------------
Title
[NAME OF ASSIGNEE]
By:
---------------------------
Title
E-2
ACKNOWLEDGED OR CONSENTED TO
(AS APPLICABLE):
GENZYME CORPORATION
By:
------------------------
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By:
------------------------
Title:
E-3
EXHIBIT F
PLEDGE AGREEMENT
PLEDGE AGREEMENT (this "AGREEMENT"), dated as of December 10, 2003, by
GENZYME CORPORATION ("COMPANY"), a Massachusetts corporation, to FLEET NATIONAL
BANK, as Administrative Agent, for the Lenders (as defined below) (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
W I T N E S S E T H :
WHEREAS, the Company, certain obligors (the "Obligors"), the Administrative
Agent, ABN AMRO Bank N. V., as Syndication Agent, The Bank of Nova Scotia,
Citizens Bank of Massachusetts and Wachovia Bank, National Association, as
Co-Documentation Agents, and certain lenders (the "Lenders") are parties to a
Credit Agreement of even date (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"; capitalized terms used but not
otherwise defined shall have the meanings ascribed to such terms in the Credit
Agreement), pursuant to which the Lenders have agreed to make up to
$350,000,000 in Revolving Credit Loans to the Company on the terms and subject
to the conditions set forth therein;
WHEREAS, to induce to the Lenders to enter into the Credit Agreement and
make the Revolving Credit Loans thereunder, the Company has agreed to enter into
this Pledge Agreement and pledge all of the capital stock of Genzyme Securities
Corporation (the "Subsidiary") a Massachusetts corporation, to the
Administrative Agent, as agent for the Lenders;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Administrative Agent hereby agree as follows:
SECTION 1. PLEDGE. The Company hereby grants, assigns and pledges to the
Administrative Agent, for the benefit of each of the Lenders and Agents, a valid
lien on and security interest in, all of the Company's right, title and interest
in and to the following, whether now owned or at any time hereafter acquired
(collectively, the "Collateral"):
(a) All of the issued and outstanding capital stock of the Company
in the Subsidiary as set forth on Schedule 1 (the "Pledged Shares") and the
certificates representing the Pledged Shares, and all dividends, distributions,
cash, instruments, investment property and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Shares, and all additional capital stock in Subsidiary
from time to time acquired in any manner by the Company, and the certificates
representing such
F-1
additional capital stock, and all dividends, distributions, cash, instruments,
investment property and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
capital stock; and
(b) all proceeds of any of the foregoing (including, without
limitation, proceeds constituting any property of the types described above).
SECTION 2. ALL OBLIGATIONS SECURED. This Agreement secures the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of all of the Obligations.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Company represents and warrants
as follows:
(a) Company has the requisite corporate power, authority, and legal
right to execute, deliver and perform this Agreement and all corporate action
necessary for the execution, delivery and performance of this Agreement has been
taken.
(b) The execution, delivery and performance of this Agreement by
Company does not, and will not, contravene (i) the Articles of Organization and
By-Laws of Company, (ii) any legal requirement or (iii) any franchise, license,
permit, indenture, contract, lease, agreement, instrument or other commitment to
which it is a party or by which it or any of its properties are bound, and will
not, except as contemplated herein, result in the imposition of any liens or
security interests upon any of its properties.
(c) This Agreement is the legal, valid and binding obligation of
Company, enforceable in accordance with its terms.
(d) Company is the legal and beneficial owner of record of the
Pledged Shares set forth opposite Company's name in Schedule 1, free and clear
of any lien other than liens created pursuant to this Agreement. On the date
hereof, no effective financing statement or other instrument similar in effect
covering all or any part of the Collateral will be on file in any recording
office.
(e) The pledge of the Collateral and granting of the liens
hereunder, together with the delivery of the stock certificates pledged
hereunder and appropriate filings of Uniform Commercial Code financing
statements, create a valid and perfected first priority lien on the Collateral,
securing the payment and performance of the Obligations, and all filings and
other actions necessary or desirable to perfect and protect such lien have been
duly made or taken.
(f) No authorization, approval, or other action by, and no notice
to or filing with, any Person or governmental authority is required for (i) the
pledge by such Company of the Collateral pursuant to this Agreement, the grant
by such Company of the liens granted hereby or the execution, delivery or
performance of this Agreement by such Company, (ii) the perfection of the liens
granted pursuant to this Agreement, except for the delivery to the
Administrative Agent
F-2
of the stock certificates representing the Pledged Shares in Subsidiary and
appropriate filings of Uniform Commercial Code financing statements, or (iii)
the exercise by the Administrative Agent of the rights or remedies provided for
in this Agreement.
(g) The Pledged Shares represented by the certificates identified
in Schedule 1 are, and all other Pledged Shares in which Company shall hereafter
obtain an interest will be duly authorized, fully paid and nonassessable and
none of such Pledged Shares is or will be subject to any contractual restriction
upon the transfer of such Pledged Shares.
(h) The Pledged Shares represented by the certificates identified
in Schedule 1 constitute all of the issued and outstanding shares of capital
stock or other equity securities of any class in the Subsidiary, and Schedule 1
correctly identifies, as at the date hereof, the respective class of the shares
comprising such Pledged Shares and the respective number of shares represented
by each such certificate.
SECTION 4. FURTHER ASSURANCES; COVENANTS; REPLACEMENT COLLATERAL.
(a) Company covenants and agrees that at any time and from time to
time, at the expense of Company, Company will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that the Administrative Agent may request, to perfect
and protect any security interest granted or purported to be granted hereby or
to enable the Administrative Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, Company authorizes the Administrative Agent to file
such financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable to perfect and preserve
the liens granted or purported to be granted hereby, and cause third parties to
acknowledge and to register the pledge of securities hereunder on their books
and to deliver statements of account upon the Administrative Agent's request
therefor.
(b) Company covenants and agrees that, without the prior written
consent of the Administrative Agent and the Lenders, Company will not (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Collateral, (ii) create or suffer to exist
any lien upon or with respect to any of the Collateral, except for the liens
under this Agreement, (iii) vote to enable, or take any other action to permit,
Subsidiary to issue any capital stock or other equity securities of any nature
or to issue any other securities convertible into, exchangeable for or granting
the right to purchase any capital stock or other equity securities of any nature
of Subsidiary or to convey, exchange, lease, assign, transfer, sell or otherwise
dispose of any material assets of the Subsidiary, (iv) enter into any agreement
or undertaking restricting the right or ability of the Administrative Agent to
sell, assign or transfer any of the Collateral or (v) permit Subsidiary to issue
any shares of capital stock or other equity securities of any nature or to issue
any securities convertible into or granting the right to purchase or otherwise
acquire any shares of capital stock or equity securities of Subsidiary or to
convey, exchange, lease, assign, transfer, sell or otherwise dispose of any
material assets of the Subsidiary.
F-3
(c) If Company acquires any additional capital stock in Subsidiary,
Company shall hold the same in trust for the Administrative Agent and promptly
deliver to the Administrative Agent the stock certificates evidencing such
capital stock, together with undated stock powers related thereto duly executed
in blank by Company.
SECTION 5. RIGHTS OF THE COMPANY; VOTING; ETC.
(a) So long as no Event of Default shall have occurred and be
continuing, Company shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Collateral or any part thereof for any
purpose not inconsistent with the terms of this Agreement and the other Loan
Documents and in a manner which does not impair any of the Collateral and to
receive and retain any and all cash dividends and distributions paid in respect
of the Pledged Shares.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(i) All rights of any Company to receive the cash dividends
and distributions that such Company would otherwise be authorized to
receive and retain pursuant to Section 5(a) hereof shall cease, and all
such rights shall thereupon become vested in the Administrative Agent
who shall thereupon have the sole right to receive and hold as
Collateral such dividends, distributions and payments.
(ii) Any and all other dividends and distributions payable
to any Company in respect of the Collateral shall be received by such
Company in trust for the benefit of the Administrative Agent, shall be
segregated from other funds of such Company and shall be forthwith paid
over to the Lender as Collateral in the same form as so received (with
any necessary endorsement).
SECTION 6. PRINCIPAL PLACE OF BUSINESS; RECORDS. Company shall keep its
principal place of business and the place where it keeps its records concerning
the Collateral at the address of the Company specified in the Credit Agreement.
The Company will hold and preserve such records and, upon reasonable notice from
the Administrative Agent, will permit representatives of the Lender at any time
during normal business hours to inspect and make abstracts from such records.
SECTION 7. TRANSFER OR LIENS. Company agrees that it will not sell,
transfer or convey any interest in, grant any option with respect to, or suffer
or permit any lien to be created upon or with respect to, any of the Pledged
Shares during the term of this Agreement, except to or in favor of the
Administrative Agent.
SECTION 8. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT; IRREVOCABLE
AUTHORIZATION AND INSTRUCTION TO THE SUBSIDIARIES. Company hereby appoints the
Administrative Agent as Company's attorney-in-fact, with full authority in the
place and stead of the Company and in the name of the Company or otherwise, from
time to time in the Lender's discretion, to,
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upon the occurrence and during the continuance of an Event of Default, take any
action and to execute any instrument which the Administrative Agent may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, to exercise the voting and other consensual rights which
Company would otherwise be entitled to exercise pursuant to Section 5(a) (and
all right of Company to exercise such rights shall cease) and to receive,
endorse and collect all instruments made payable to the Company representing any
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same. Company hereby authorizes and instructs Subsidiary to
comply with any instruction received by it from the Lender in writing that (i)
states that an Event of Default has occurred and is continuing and (ii) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from Company, and Company agrees that Subsidiary shall be
fully protected in so complying. Company hereby ratifies all that such attorney
shall lawfully do or cause to be done by virtue hereof. This power of attorney
is coupled with an interest and is irrevocable.
SECTION 9. REASONABLE CARE; RETURN OF COLLATERAL.
(a) Prior to the exercise of its remedies hereunder, the
Administrative Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equal to that which the Lender accords its
own similar property, it being understood that the Administrative Agent shall
not have the responsibility under this Agreement for taking any necessary steps
to preserve rights against any parties with respect to any Collateral except as
set forth in subsection (b) below.
(b) Upon the indefeasible payment in full in cash of all the
Obligations and the termination of the Credit Agreement, Company shall be
entitled to the return of all of the Collateral pledged by Company hereunder.
SECTION 10. ADMINISTRATIVE AGENT MAY PERFORM. If Company fails to perform
any agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by such Company.
SECTION 11. REMEDIES UPON DEFAULT. If any Event of Default shall have
occurred and be continuing, the Administrative Agent may exercise in respect of
the Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party under
the Uniform Commercial Code (the "CODE") and the Administrative Agent may also,
without notice except as specified below, transfer the Collateral into its name
or that of its nominee, sell the Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange, broker's board or at any of
the Administrative Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable. Company agrees that, to the extent notice of sale shall
be required by law, at least ten days' notice to Company of the time and place
of any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Administrative Agent shall not be
obligated to make any sale of
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Collateral regardless of notice of sale having been given. The Administrative
Agent may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
SECTION 12. INDEMNITY AND EXPENSES.
(a) Company agrees to and hereby indemnifies the Administrative
Agent, each other Agent and each Lender from and against any and all claims,
damages, losses, liabilities and expenses arising out of, or in connection with,
or resulting from, this Agreement (including, without limitation, enforcement of
this Agreement) other than such as arise from the Administrative Agent's gross
negligence or willful misconduct.
(b) Company will, upon demand, pay to the Administrative Agent the
amount of any and all expenses, including the reasonable fees and expenses of
it s counsel and of any experts and agents, that the Administrative Agent may
incur in connection with (i) the administration of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Administrative Agent hereunder, (iv) the failure of
Company to perform or observe any of the provisions hereof, or (v) any action
taken by the Lender pursuant to this Agreement.
SECTION 13. SECURITY INTEREST ABSOLUTE. All rights of the Administrative
Agent and security interests hereunder, and all obligations of Company
hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit Agreement,
the Note or any other Loan Document;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to departure from any of the Loan Documents;
(c) any taking and holding of collateral or any guaranty for all or
any of the Obligations, or any amendment, alteration, exchange, substitution,
transfer, enforcement, waiver, subordination, termination or release of any
collateral or such guaranty, or any non-perfection of any collateral, or any
consent to departure from any such guaranty;
(d) any manner of application of collateral, or proceeds thereof,
to all or any of the Obligations, or the manner of sale of any collateral;
(e) any consent by any Agent or any Lender to the restructure of
the Obligations, or any other restructure or refinancing of the Obligations or
any portion thereof;
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(f) any modification, compromise, settlement or release by any
Agent or any Lender, by operation of law or otherwise, collection or other
liquidation of the Obligations or the liability of any guarantor, or of any
collateral, in whole or in part, and any refusal of payment by any Agent or any
Lender, in whole or in part, from any obligor or guarantor in connection with
any of the Obligations, whether or not with notice to, or further assent by, or
any reservation of rights against, any Company; or
(g) any other circumstance (including, without limitation, any
statute of limitations) which might otherwise constitute a defense available to,
or a discharge of, any third party pledgor or guarantor.
SECTION 14. AMENDMENTS; WAIVERS; PARTIAL EXERCISE. No amendment or waiver
of any provision of this Agreement or consent to any departure by the Company
here from shall be effective unless in writing and signed by Company, the
Administrative Agent and the Required Lenders (or, to the extent required by
Section 12.5 of the Credit Agreement, all the Lenders), and any such amendment,
waiver or consent shall be effective only to the extent set forth therein. No
failure to exercise or any delay in exercising on the part of the Administrative
Agent any right, power or privilege under this Agreement shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
under this Agreement shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
SECTION 15. ADDRESSES FOR NOTICES. All notices and correspondence hereunder
shall be provided in the manner, to the Persons and to the addresses set forth
in the Credit Agreement.
SECTION 16. CONTINUING SECURITY INTEREST; ASSIGNMENTS OF SECURED DEBT. This
Agreement shall create a continuing security interest in and lien on the
Collateral and shall (i) remain in full force and effect until released in
accordance with the terms hereof, (ii) be binding upon Company, its successors
and assigns, and (iii) inure, together with the rights and remedies of the
Administrative Agent and Lenders hereunder, to the benefit of their respective
successors and assigns. Without limiting the generality of the foregoing clause
(iii), the Administrative Agent or Lenders, in accordance with the terms of the
Credit Agreement, may assign or otherwise transfer all or any portion of their
rights and obligations under this Agreement to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect hereof
granted herein.
SECTION 17. GOVERNING LAW; DEFINED TERMS. This Agreement shall be governed
by and construed in accordance with the laws of the Commonwealth of
Massachusetts without giving effect to principles of conflicts of law. Unless
otherwise defined herein or in the Credit Agreement, terms used in Articles 8
and 9 of the Code are used herein as therein defined. This Agreement shall be
deemed for all purposes to be a Loan Document under the Credit Agreement.
SECTION 18. MARSHALLING. Company hereby waives any right to require the
Administrative Agent to marshal any security or Collateral or otherwise compel
the Administrative Agent seek recourse against or satisfaction of the
Obligations from one source before seeking recourse or satisfaction from another
source.
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SECTION 19. EXECUTION IN COUNTERPARTS; TELECOPIED SIGNATURES. This
Agreement may be executed in counterparts, each of which shall constitute an
original, but all of which taken together shall constitute one and the same
instrument. This Agreement, and any notices to be given pursuant to this
Agreement, may be executed and delivered by telecopier or other facsimile
transmission all with the same force and effect as if the same was a fully
executed and delivered original counterpart.
SECTION 20. SUBMISSION TO JURISDICTION. ALL DISPUTES AMONG THE COMPANY AND
THE ADMINISTRATIVE AGENT OR LENDERS, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY
OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE AND FEDERAL COURTS LOCATED IN
BOSTON, MASSACHUSETTS, AND THE COURTS TO WHICH AN APPEAL THEREFROM MAY BE TAKEN;
PROVIDED, HOWEVER, THAT THE ADMINISTRATIVE AGENT SHALL HAVE THE RIGHT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE COMPANY OR ITS
PROPERTY IN ANY LOCATION REASONABLY SELECTED BY THE ADMINISTRATIVE AGENT IN GOOD
FAITH TO ENABLE THE ADMINISTRATIVE AGENT TO REALIZE ON SUCH PROPERTY, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. THE COMPANY
AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS, SETOFFS OR
CROSS-CLAIMS IN ANY PROCEEDING BROUGHT BY THE ADMINISTRATIVE AGENT. THE COMPANY
WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE
ADMINISTRATIVE AGENT HAS COMMENCED A PROCEEDING, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON FORUM NON CONVENIENS.
SECTION 21. JURY TRIAL. THE COMPANY AND, BY ITS ACCEPTANCE HEREOF, THE
ADMINISTRATIVE AGENT EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its proper and duly authorized officer as of the day and year first above
written.
GENZYME CORPORATION
By:
-------------------------------
Name:
Title:
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Accepted:
FLEET NATIONAL BANK, as
Administrative Agent
By:
-------------------------
Name:
Title:
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Schedule 1
Pledge Agreement between
GENZYME CORPORATION AND FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT
PLEDGED SHARES
Issuer: Genzyme Securities Corporation
Class of Shares: Common
Number of Pledged Shares: One Hundred (100)
Date of Issuance: December 30, 1991
Date of Pledge: December 10, 2003
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EXHIBIT G
NOTICE OF BORROWING
Date: _________, ___
Fleet National Bank,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: High Tech Group
Re: Credit Agreement dated as of December 10, 2003 (the "CREDIT
AGREEMENT"), between Genzyme Corporation (the "COMPANY"), the
Subsidiary Guarantors party thereto, the Lenders party thereto and
Fleet National Bank, as Administrative Agent, ABN AMRO Bank N. V.,
as Syndication Agent, and The Bank of Nova Scotia, Citizens Bank of
Massachusetts and Wachovia Bank, National Association, as
Co-Documentation Agents
Ladies and Gentlemen:
The undersigned, Genzyme Corporation (the "COMPANY"), refers to the Credit
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 4.5 of the Credit
Agreement, of the borrowing as a Revolving Credit Loan specified below:
1. The Business Day of the proposed borrowing is ___________, ______.
2. The aggregate amount of the proposed borrowing is $___________
(minimum aggregate amount equal to $5,000,000 or an integral
multiple of $1,000,000 in excess thereof).
3. The borrowing is to be comprised of $_____ of [Prime Rate] [LIBOR]
Loans.
4. The duration of the Interest Period for the LIBOR Loans included in
the borrowing shall be _______ months.
The undersigned hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed borrowing, before and
also after giving effect thereto and to the intended use of the Loan:
(a) no Default has occurred and is continuing;
(b) the representations and warranties made by the Company in Section 8
of the Credit Agreement, and by each Obligor in each of the other Loan
Documents to which it is a party, are true and complete in all material
respects on and as of the date of the
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making of such Loan with the same force and effect as if made on and as of
such date (except with respect to any such representation or warranty that
is expressly stated to have been made as of a specific date); and
(c) such Loan will not cause the aggregate outstanding amount of
Revolving Credit Loans to exceed the aggregate amount of the Revolving
Credit Commitments in effect as of the time that such Loan is made.
GENZYME CORPORATION
By:
----------------------------
Title:
----------------------------
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇
Date: ___________, ____
Fleet National Bank,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: High Tech Group
Re: Credit Agreement dated as of December 11, 2003 (the "CREDIT
AGREEMENT"), between Genzyme Corporation (the "COMPANY"), the
Subsidiary Guarantors party thereto, the Lenders party thereto and
Fleet National Bank, as Administrative Agent, ABN AMRO Bank N.V., as
Syndication Agent, and The Bank of Nova Scotia, Citizens Bank of
Massachusetts and Wachovia Bank, National Association, as
Co-Documentation Agents
Ladies and Gentlemen:
The undersigned, Genzyme Corporation (the "COMPANY"), refers to the Credit
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 4.5 of the Credit
Agreement, of the [Conversion] [Continuation] of the Loans specified herein,
that:
1. The Conversion/Continuation Date is _______, ___.
2. The aggregate amount of the Loans to be [converted] [continued] is
$____ (minimum aggregate amount equal to $5,000,000 or an integral
multiple of $1,000,000 in excess thereof).
3. The Loans are to be [converted into] [continued as] [LIBOR] [Prime
Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the LIBOR
Loans included in the [conversion] [continuation] shall be __
months.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed [Continuation]
[Conversion], before and also after giving effect thereto and to the intended
use of the [Continuation] [Conversion]:
(a) no Default has occurred and is continuing;
(b) the representations and warranties made by the Company in
Section 8 of the Credit Agreement, and by each Obligor in each of the other
Loan Documents to which it is a party, are true and complete in all
material respects on and as of the date of such
H-1
[Conversion][Continuation] with the same force and effect as if made on and
as of such date (except with respect to any such representation or warranty
that is expressly stated to have been made as of a specific date); and
(c) such [Conversion] [Continuation] will not cause the aggregate
outstanding amount of Revolving Credit Loans to exceed the aggregate amount
of the Revolving Credit Commitments in effect as of the time that such
[Conversion] [Continuation] is effected.
GENZYME CORPORATION
By:
----------------------------
Title:
----------------------------
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EXHIBIT I
NOTICE OF PREPAYMENT
Date: _________, ___
Fleet National Bank,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: High Tech Group
Re: Credit Agreement dated as of December 10, 2003 (the "CREDIT
AGREEMENT"), between Genzyme Corporation (the "COMPANY"), the
Subsidiary Guarantors party thereto, the Lenders party thereto and
Fleet National Bank, as Administrative Agent, ABN AMRO Bank N.V., as
Syndication Agent, and The Bank of Nova Scotia, Citizens Bank of
Massachusetts and Wachovia Bank, National Association, as
Co-Documentation Agents
Ladies and Gentlemen:
The undersigned, Genzyme Corporation (the "COMPANY"), refers to the Credit
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 4.5 of the Credit
Agreement, of the prepayment of the Loans specified herein, that:
1. The date of prepayment is ______, ____.
2. The aggregate amount of the Loans to be prepaid is $_________
(minimum aggregate amount equal to $5,000,000 or an integral
multiple of $1,000,000 in excess thereof).
3. The Loans to be prepaid consist of [LIBOR] [Prime Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the LIBOR
Loans to be prepaid was ___ months, beginning on ____________
______, ____.
GENZYME CORPORATION
By:
----------------------------
Title:
----------------------------
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